Mario Kart 8 DMCA thread

Discussion in 'Wii U - Games & Content' started by Elliander, Mar 21, 2015.

  1. Elliander
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    Elliander GBAtemp Fan

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    As requested, this thread is specifically for discussing and dealing with copyright claims made by Nintendo specifically for cases arising out of legal use of Mario Kart 8. If you have a similar experience feel free to post about it, but keep in mind that this isn't for normal gameplay videos. This is just for videos created with the MKTV feature and uploaded to youtube by the Wii U console itself.

    The basic argument that I am making is this: I paid Nintendo for a license to use Mario Kart 8. Nintendo provided me with the means of creating 15, 30, and 45 second videos and then to upload these videos to youtube. Even if Nintendo initially only wants to put advertising in it's videos, making a claim of copyright infringement is in and of itself very serious and once Nintendo sends an official DMCA take down notice it is taking the official legal stance that it never provided me with permission to upload the content to begin with which isn't true.

    Copyright strikes are also damaging in and of themselves. For example, while a single copyright strike is in place, I am not eligible to dispute any copyright claim unless I have the video restored by a counter notification or wait 6 months. Since Nintendo is willing to go far enough to create a copyright strike, but not far enough to take me to federal court, it's damaging in another way since it would take more than a year to dispute each and every video. While I could of course NOT dispute it at all and get no copyright strikes, I take issue with the practice of being accused of copyright infringement when in truth I am a paying customer.

    _______

    Here is the 30 second video that I disputed first:



    And here is proof of the issue:

    [​IMG]
    [​IMG]

    Here is the proof of the email sent by YouTube of Nintendo's decision.

    [​IMG]

    Nintendo responded with a DMCA take down notice as you can see here:

    [​IMG]

    If I do not submit a counter notification the copyright strike will remain on my account for 6 months, which would directly damage my income since I occasionally have false copyright claims made on gardening videos. Here's proof that I submitted the counter notification:


    [​IMG]

    I also contact Nintendo over the phone and by email who both insist that they do not send DMCA take down notices, trying to blame it on Youtube Content ID. I am writing to show that this is NOT true. Nintendo is intentionally abusing the DMCA take down procedure, and it knows that if they take me to court they will face severe liabilities for doing so.

    Yesterday I received this email from youtube basically telling me that the video was restored and all penalties have been removed, but it was in Japanese which is interesting.

    [​IMG]

    Nintendo has no intention of bringing it's customers to federal court, but has no problem with attacking it's customers with DMCA take down notices. I fully intend to dispute each and every video one at a time and we'll see how Nintendo responds to subsequent claims, but as a whole I expect they will respond the same. This represents an ongoing challenge for people, but by doing this Nintendo has opened itself up to a class action lawsuit since mandatory arbitration does not apply to copyright claims.

    Anyone else dealing with the same please post with proof. Hopefully gaming news sites will eventually pick it up and Nintendo will eventually change it's position of attacking it's customers.
     
  2. Elliander
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    Elliander GBAtemp Fan

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    Here's my next case. I am only doing one at a time, even though I can appeal up to 3, because each strike removes more features and the 3rd strike will result in the deletion of all my videos:



    Here's what the page looks like initially. As you can see, Nintendo is doing this for advertising revenue, except that the terms of service did not say that use of it's product constitutes copyright infringement or that it would embed adverts in such videos:

    [​IMG]

    Here's the dispute process:

    [​IMG]

    Here's what I typed in on the Appeal page (address information cut out)

    [​IMG]
    [​IMG]

    And here's what the final page looks like:

    [​IMG]

    The next step is that Nintendo will probably file a DMCA take down notice in 4 weeks. The video will be taken down and I will get a copyright strike. Then I will file a counter notification and 2 weeks later it will be restored. As a whole it takes a month and a half to go through it, but as long as you are willing to deal with the limited features temporarily there is no reason not to do it.

    I will edit this post rather than create a new post when this case is updated and will then create a new post when I start the following case.

    EDIT April 16, 2015:

    As expected, Nintendo "decided that their claim was still valid" so I filed the counter notification. Attached is proof of this along with, of course, proof that I was hit with a copyright strike for using Nintendo's product the way THEY intended it to be used.

    [​IMG]

    I wish Nintendo would have to fill out a form like this each and every time they decide to abuse DMCA. A list of questions to make sure they understand what actually constitutes infringement.

    [​IMG]

    As you can see here, a copyright strike.

    [​IMG]

    [​IMG]

    [​IMG]
    EDIT: May 1st 2015

    As expected, Nintendo dropped the case. It's safe to assume that although Nintendo has no problem with attacking it's customers and sending copyright strikes for using a product as intended, they aren't willing to take the customers to court over it. Well, I'll just keep building my case against them.

    Translates to:

     
  3. TotalInsanity4

    TotalInsanity4 GBAtemp Supreme Overlord

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    This is very good. I hope that Nintendo is taking notes. Now that someone is actually calling them out for their stupidity, some reform when it comes to allowing their IPs recorded online may (hopefully) result
     
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  4. fischermasamune

    fischermasamune GBAtemp Regular

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    Thanks for the report, Elliander. Exactly like you said, its publicity may help deter these actions. Please keep the community updated.
     
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  5. the_randomizer

    the_randomizer The Temp's official fox whisperer

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    I find it ironic and very asinine, that Nintendo would implement the capability of using in-game software to capture highlights of their own IP, and then sabotage it with YouTube's copyright stupidity. Oh they backlash will be huge. This issue right here, makes their so-called partnership program even more of a laughingstock than it was before. Oh Nintendo, when will you ever learn?
     
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  6. Elliander
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    Elliander GBAtemp Fan

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    Ya, and I have a big problem with the "partnership program" in general. Nintendo hopes that by pushing enough it will get people to agree to share advertising revenue with Nintendo, but only if you allow Nintendo to monetize and gain profits from all of the videos you upload - even the ones that have nothing to do with Nintendo. I don't have the legal capacity to agree to such a thing because I manage comedy videos for a company and uploaded them to youtube long before youtube was bought out by google. I also upload AMV's which are fair use, and fair use videos cannot be monetized and still be fair use. Since I cannot legally monetize either type of video I cannot enter into a partnership program with Nintendo, and even if I did the videos that I do monetize are my own work anyway while the page views for Nintendo videos are so small that any potential gain would be offset by giving Nintendo all of my ad revenue. My solution is to just not monetize videos with Nintendo content at all.

    Of course, if Nintendo was smart (and they clearly are not) they would realize that gameplay videos encourage people to actually buy the product. The advertising revenue is small in comparison to potential sales. I myself buy most of my games based on videos. Then there is the fact that people who already own the consoles are more likely to be repeat customers, but those customers who are attacked for being customers are less likely to buy in the future. As a whole, the entire situation can only cost Nintendo money.

    Nintendo tried to shield itself from class action lawsuits by putting in a mandatory arbitration agreement, but they were at least smart enough to realize that they can't file copyright claims if mandatory arbitration applies and so that's why I am threatening them with a class action lawsuit over this issue. My hope is that the threat alone will cause them to rethink their position since I really do love Nintendo products and want to see Nintendo succeed. I don't want the console to fail. I sincerely hope they back step on the issue, but if they don't stop I do have the resources required to take them to court. Whenever I am between classes that is.
     
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