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  1. YES, absolutely!

    46.3%
  2. Well... if you do the following you can bypass this

    19.5%
  3. NO, they have no rights todo so!

    34.1%
  1. DoJo_Master

    OP DoJo_Master GBAtemp Advanced Fan
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    Yes but the website revolves around copyrighted material that the user submits, I rather shutdown the site then some how filtering ever themes that gets put in
     
  2. Arras

    Arras GBAtemp Guru
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    Ah, that's tricky. While rachel is correct that user-made themes are perfectly fine, I'm not sure if that disclaimer really helps if people upload official themes. After all, things like Megaupload got taken down. However, it does make it likely that Nintendo will just send a message asking you to take down X themes (or worst case scenario, the whole thing) instead of just suing outright. Suing costs them money too, and other than piracy-related cases I don't think I've seen Nintendo sue anything anyway.
     
  3. DoJo_Master

    OP DoJo_Master GBAtemp Advanced Fan
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    That makes sence, I know what most of the Nintendo official themes look like and so far none of the themes are direct clones from the eshop. BUUUT almost all the themes use copyrighted characters like mario
     
  4. GrovyleXShinyCelebi

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    Made an account just to post this:

    I'm not a lawyer, but I've done alot of research personally on the topic of copyrights and intellectual property. As a kid I've despised them; they were a form of censorship that shattered my dream to make a free, non-profit Pokemon RTS game (which after a bit of inquiry on The Pokemon Company's stance on fanworks and IPs seems much more viable). Anyways, it motivated me to learn about them, to learn their weaknesses, and to fight them.

    Copyright law is extremely archaic and outdated, and so there is a massive amount of grey area. What might seem like infringement might now be, and vice versa. Two things to know before we begin our discussion: first plagiarism and copyright infringement are two completely different problems (only the latter is illegal). You can make every effort to attribute the source with disclaimers, and it will help relatively little in court. Secondly, copyrights are different than trademarks; the former cover expressions while the latter cover terms and styles used to identify a company (so, if I were to make a fan-made Pokemon RTS I can't have Pokemon in the title- maybe Pocket Wars?). Apparently this is to avoid commercial confusion.


    Anyways, let's begin our discussion.


    First off, it's important to realize that as a website owner you have DMCA safe harbor as long as:

    -If there is copyrighted material in anything you post or link on your site, that you did not have actual knowledge and do not benefit from the activity and that you immediately take it down when you learn that it is infringing.

    -You register a DMCA agent to receive takedown notices (not sure if this is 100% necessary though).

    -You explicitly tell your users about your policy for copyright infringement.

    -You fully cooperate when you receive a DMCA claim on infringement.

    As long as the owner of 3dsthemes.com follows these guidelines his website should be fine.

    More info here: http://www.dmlp.org/legal-guide/protecting-yourself-against-copyright-claims-based-user-content


    Secondly, you can ignore that guy that said that a work can't infringe copyright because of "artistic expression"; in fact the nature of a work being artistic rather than educational actually goes against fair use (which, by the way, involves a four-factor test that is NOT LIMITED to the typical examples of parody, criticism, education, etc.). The good news is that this is actually the least important of the four factors (the nature of the copyrighted work). Most importantly is whether the supposedly infringing work had a significant negative impact on the owner's business.

    More info on four-factor test here: http://fairuse.stanford.edu/overview/fair-use/four-factors/


    Thirdly (and this is from anecdotal evidence from several lawyers), the most important thing to know about this is that most copyright-related cases never end up in court. Only the most egregous cases ever see a day in a courtroom, and usually one of the parties drops out after they've reached a settlement. It's less important to know how to win a court-case on copyright infringement moreso to never allow the problem to reach that stage in the first place (court cases are expensive and time-consuming for both parties, so most companies only use it as a last resort, and you should see it as such). Know which IPs you're mainly dealing which, know who owns them, and know how have they historically have responded to use of their intellectual property without their permission.

    Game companies, compared to any other art industry, are the most lenient when it comes to use of their IPs, mainly because of the nature of how games work. While music only has the sound and books only has the narrative, video games combine all these different media to create an interactive experience unlike any other that can't be completely replicated easily. Aside from Square Enix and Disney (the two "copyright Nazis") most game companies not only tolerate fanworks, they welcome them. I remembered that Activision showed a fan-made movie for Call of Duty: Modern Warfare 3 in a promotion at E3. If this were the movie industry they would have lawsuits being stuffed into their rear ends!

    Out of all the game companies, Nintendo is one of the most permissive in terms of their intellectual property. There are thousands of fanart, music remixes, and even entire games made by devoted fans that they allow without filing infringement notices. There were only two incidents I can name about them that might have some people worried. First is the incident in which Nintendo was supposedly taking down "Let's Play" videos on YouTube with footage from their game, though they were only taking away ad revenue from users that were monetizing their footage, and even reversed that policy, because "unlike other entertainment companies, [Nintendo] have chosen not to block people using our intellectual property." Secondly is Project M, a Smash Bros-based mod that is considered "illegal activity" on MiiVerse, though that's mainly because it involved hacking the Wii to play it.

    Bottom line, if you're dealing with Nintendo's content, chances are they're not going to go after you (they might even support you). Even if they do as long as you comply with their takedown notices you're in good shape. The only way you can possibly be in trouble by Nintendo is if:

    A. Nintendo finds out what you are doing in the first place.
    B. Nintendo actually objects to it (see above)
    C. Nintendo files a DMCA takedown notice against said infringing content.
    D. You don't comply with them immediately and take action to remove said infringing content.
    E. Nintendo actually takes the time and money to sue one person running a amateur, low-budget website on something he loves.
    F. You lose that court case (or "drop out" of it prematurely).


    So, don't sweat it. Nintendo loves people making free, fanmade, creative stuff out of their stuff (although they do draw the line at piracy/profit). You might want to be careful with donations, though. Remember: Nintendo doesn't want to sue you, and you don't want to be sued by Nintendo. Make sure it doesn't happen, 'K?

    Fun fact of the day: "Nintendo" means "Heaven of Duty"/"Heaven of Responsibility"!
     
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  5. DoJo_Master

    OP DoJo_Master GBAtemp Advanced Fan
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    Thank you so much for making this and puting the time out of your life to post so much detail, I have copyed this to a pdf and is stored on my PC, I have a couple of questions but I am so glad you posted this as it clears allot of questions/problemes out of the way!

    Anyway I have 2 main questions,

    A) What I am doing requires hacking of the 3DS, I'm not sure if Nintendo would support that perioid xD with that said, for example can I make an FAQ page on my website it tells the user how to install the theme onto the 3DS via software exploitation?

    B) I am currently labeling my website as nonprofit and is using the donation money (when I get some) to pay off the expensive servers and URL payments. Does this make a diffrence as to say im using the money for my own phohpit?
     
  6. Nightwish

    Nightwish GBAtemp Fan
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    Labeling it non-profit doesn't mean a thing, other than maybe intent. Sadly, donations have been used as a basis for C&Ds before. Whether it would be enough in court I don't think has been found out yet.
    I would display a smaller disclaimer on the top of the page, maybe saying "the only fan 3ds theme site" would help. Because... as is, it can be argued that 3dsthemes.com sounds pretty much official.

    Having scared you, it should be noted that it is one thing to issue a DMCA request, another to sue, and another to win. Issuing a DMCA claim, sadly, has no real consequences to whoever issues it if they're wrong. OTOH, you're opening yourself to a lot of trouble if you ignore them. Be sure to follow them to the letter because... suing is rather easy as well. Common people just don't have the money or the time to defend themselves, so don't give them opportunities. However, do note that if you start self-moderating the website, you will be liable for not moderating enough, so wait for claims. And not trust me on this and make sure I'm saying this right, BTW.

    If you do this, I feel you'll be ok.

    Another thing Nintendo might get pissy about is your domain name, which they might claim sounds too official. I would make a change of domain name ASAP to avoid giving them any ammunition.

    Also, you should quickly find out the difference between copyright and trademarks.

    IANAL, I'm not even an American, but as GrovyleXShinyCeleb I read a fair bit about copyright and the DMCA because I hate their current implementation.
     
  7. DoJo_Master

    OP DoJo_Master GBAtemp Advanced Fan
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    Alrighted noted, but can nintendo really do anything about my url only that it sounds official? is that really something people look into? I dont know a thing about what I am saying but, im not sure nintendo can shut down the site due to sounding to officail
     
  8. Nightwish

    Nightwish GBAtemp Fan
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    That's pretty much what trademark does: it serves to avoid confusion on the customer. Again, it doesn't matter if they're right, it's enough to pester your host to put your site down and being sued if you put it up again. Either if you're right and no one would confuse it for a Nintendo site, you would have to prove it in court, which is expensive. So, if they complain, don't fight it.

    I find it hard that Nintendo would outright sue you, seeing what's happened before on other sites. Just be ready to give up quickly.
     
  9. Hashtastrophe

    Hashtastrophe Wizard
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    Your post is essentially what I meant to convey earlier. I'm just (really kind of) bad at explaining things. And a few things you said here were things I did not know/was misinformed about copyright law.

    Next time I'll leave the legal advice to people like you (and actual lawyers)!
     
  10. GrovyleXShinyCelebi

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    In theory, yes. In practice, write somewhere in plain view that you're not affiliated with Nintendo. It won't mean diddly in court, but it's probably enough to get them to not go after you for the domain name. You might want to change the domain, though, if you notice Nintendo might want to make a site specifically for 3DS themes. Remember the golden rule of IP-related lawsuits: they're very expensive for all parties involved, so prevention is the best cure. It's likely that Nintendo won't invest time and legal resources in a PR-sink that's far from a sure success, but you might want to get on their good side just in case.

    Don't fret too much about it; there's less than a 1% chance that the right people at Nintendo will even find your site, and even so it's less likely that they'll try to take it down. Remember: they're at the permissive end of the "copyright Nazi" spectrum (just look at all the Nintendo fansites still up... including this one!)


    One last thing: don't freak out even if you get a C&D. The letter will likely make it seem you sacrificed half of Europe to Khorne while molesting dead babies. In the legal world, aggression is seen as the best defense. Remember that the letter is NOT legally binding itself, and depending on it's actually content you may not even have to take it seriously (in other words, it's "gorilla chest thumping" by some attorney and doesn't have legal clout). Here's a quick article on C&Ds (I had a better one but I forgot where it was): http://www.workmadeforhire.net/the-rest/cease_desist/.
     
  11. iQue

    iQue GBAtemp Regular
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    Not really, 3DSthemes is not a copyrighted trademark.
    Nintendo cannot shut the site down, worse case they will ask you to take whatever copyrighted material down from the site.
    If you do then all will be fine, if not then they can take it further ...it's the standard action.

    Take a look at Nintendo Life, Go Nintendo or Nintendo Land sites?? ...all crap, over hyped fan boy sites! ...but there's a whole word that a user could assume the site is linked to Nintendo, yet neither of them have been asked to change the name of the site or domain name. Yet the term "Nintendo" is copyrighted and it should not be used in a domain name ...yet Nintendo don't seem to care?? ...so why should Nintendo care about 3dsthemes term being used??
     
  12. RachelB

    RachelB GBAtemp Regular
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    Um...since when? Nintendo has a lot of weird theories about copyright law that go wayyyyy passed reality. They've been saying emulators are illegal because all copies of their software are also illegal pirated copies (even if you made them yourself) for a very long time now. They've also recently been making claims against lets players, and others who post videos to youtube, something which is pretty serious, since some of them are doing that as a career, and it costs them their income. They may not be anywhere near as bad as many in the music, or movie industry, but they are one of the worse ones when it comes to games.
     
  13. DoJo_Master

    OP DoJo_Master GBAtemp Advanced Fan
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    Thanks everyone for your replies, I got a ton of info now! Hopefuly enough to now know somewhat of what nintendo can do and how to react. GrovyleXShinyCelebi youv been a big help! thanks
     
  14. GrovyleXShinyCelebi

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    I mentioned the LP case, and they mostly went after those that monetized videos and put a quote from Nintendo showing their goodwill to others using their IPs for free. As for the second case, read Nintendo's legal section carefully: Nintendo never specifically says in their legal FAQ that emulators are illegal, just that they are a big threat to IPs because they CAN play pirated software. They only specifically mentioned downloading ROMs from the web as illegal, NAND dumps they didn't acknowledge. The legal writer over at Nintendo did a great job at getting the reader to think that emulators are illegal (to avoid them) without actually saying it since emulators alone are technically legal, and it's reasonable for them to do such as emulators, again, can play pirated software.

    Ultimately, Nintendo is one of the more permissive companies and welcome other people using their intellectual property for non-profit "enjoyment and challenge". If you really want to see copyright paranoia, check out Square Enix. Regular takedowns of free AMVs with only their game footage, C&Ding any fanworks they come across (look up Chrono Trigger Resurrection), and more.
     
  15. DoJo_Master

    OP DoJo_Master GBAtemp Advanced Fan
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    Wow, so do you think they are okay with hacking the 3DS theme library only to place your own custom theme? I think when it comes to hacking Nintendo products that its an diffinint no, the biggest reason why they would shut down the website may be because it tells users to hack there 3ds
     
  16. gamesquest1

    gamesquest1 Nabnut
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    depends, its not so much the "hacking" as the "pirating" that they object to.....dont forget these themes are usable with just ninjhax, no piracy enabling in that regard, as long as your not directly making the themes they are selling available for free, i don't think they will do much, they might not like/agree with it, but i doubt they will do too much, plus when it comes to content like the let play video's those youtubers where making money from those videos that are like 100% nintendo content....with some guy talking over it (that you wish would stfu most of the time anyway)

    basically don't make money from it, and don't host official themes for free
     
  17. DoJo_Master

    OP DoJo_Master GBAtemp Advanced Fan
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    I guess so, what is there stance on gateway?
     
  18. gamesquest1

    gamesquest1 Nabnut
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    well the gateway FW contains copywritten code iirc, hosts are given take down notices for the FW files.....things that enable piracy will always be more of an issue for nintendo than homebrew....so always better to align these kinds of thing with the homebrew side of things, highlighting that its possible just simply using cubic ninja and a system on 9.0-9.2
     
  19. TheZander

    TheZander King of the Level 7's
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    Possibly reason for thread = Shameless plug?
     
  20. MaNiAlJoWo

    MaNiAlJoWo GBAtemp Regular
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    Possible reason for your reply=raise your comment counter?
     
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