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Nintendo Sues "Daily Radar" Owners For Pokemon Shots
Bulldawg2000 writes: "Well, it seems Nintendo is suing Imagine Media (Dailyradar's parent company) for using screenshots and names of their most popular video games, specifically Pokemon. Apparently, Imagine Media published a 100% unofficial strategy guide for Pokemon Gold and Silver and Nintendo did like the competition so they are suing. It saddens me to see this as I've been a loyal Nintendo fan and I don't want to see this happen. The article doesn't say why Nintendo is suing, but it most likely falls under UCITA, EULAs, etc.... Imagine Media thinks it has 'fair use' to publish screenshots, but what is IP and what is 'fair use,' I guess we'll see when they go to court."
- A.P.
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* CmdrTaco is an idiot.
"Remember when the U.S. had a drug problem, and then we declared a War On Drugs, and now you can't buy drugs anymore?"
Mind you, this is a commercial venture (the unofficial guides), so fair uses are limited because of this - there is obvious competition between Nintendo's official guide and Imagine's Unofficial. But this has been going on for years, and if this is only the first time Nintendo has thought about it, they might have a tougher time (Remember: you have to fight copyrights at all times, lest you lose them; you can let patents and trademarks go undefended and fight them at the very end without problems from the legal side).
But if Nintendo wins here, it's a stone's throw away from taking action against numerous fan-based game guides (include one that I wrote for Marathon). Most of these are NOT commercial ventures, so fair use is a bit stronger, but still, this situation is not a good one to think about.
Finally, if Imagine is successful at this, I would love to see this used as a precident to attack how most major sporting leagues can effectively block unofficial reporting of games (eg "any unofficial use of this telecast is strictly prohibited"). By their conditions, you're not even allowed to talk about the big play that won the game at the water cooler, though we know that fair use steps it. But say I've got a mailing list for fans of a team, and after each game I write a summary of the game (using the publicly broadcasted information as opposed to the next day's sports page), and then distribute and archive it to that list freely, I should not have to worry about retailation, because all I'm doing is writing in my own words how I percieved the game -- just like writing a game guide is your perception of the game. A few more legal jumps would mean that silly restrictions on Internet reporting at the Olypics would be removed, and the dominos topple from there.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Innovative?
It's a direct ripoff of the Final Fantasy Legend series.
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How many slightly bent politicans does it take to screw up copyright?
In March of this year it becomes illegal, in Australia, to install a mod-chip in your Playstation(2). Thankfully the ACCC is looking into region coding as anti-competitive behaviour. They've become a very high-profile (and effective) consumer watchdog since the introduction of GST...
The law simply states "the factors to
be considered shall include". It is NOT a four-part test in which you must meet all criteria to be considered "Fair Use".
I believe that it is generally accepted (by case law, not by the RIAA) that you can tape a complete CD and give it to a friend, as long as no payment is involved. This violates all but the first rule, yet courts have held it as fair use. See the Sony case, for example, that allows anyone to video tape anything on TV and replay it, as long as they are not doing so commercially.
As far as the scope, that is debatable. The law doesn't say "100 screenshots is too much", or even "50%" or any other objective criteria. It's reasonable that their lawyer would like to let a jury decide.
Finally, if they only have to pass a single criteria, I think the fact that they can't possibly have a negative impact on Nintendo sales should be their Fair Use Ace in the Hole.
-- Don't Tase me, bro!
The search for a coherent, predictable interpretation applicable to all cases remains elusive. This is so particularly because any common law interpretation proceeds on a case-by-case basis.
Although the Kinkos case is NOTHING like the current case, the court did provide valuable insight relevant here:
While financial gain "will not preclude [the] use from being a fair use," New York Times Co. v. Roxbury Data Interface, Inc., 434 F. Supp. 217, 221 (D.N.J. 1977), consideration of the commercial use is an important one.
So I stand by my claim that it remains arguable about whether or not this is fair use. Simply saying "they did it for a profit", while not helpful to the defendant, is not enough to shut down a fair use defense.
-- Don't Tase me, bro!
How do you figure this aint it?
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- (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
A screenshot is a pretty minimal amount of the whole work. Perhaps they published screenshots of every possible scenario throughout the game.- (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Here's where I think Nintendo is going to have a really tough time. People would generally only be interested in a "Strategy Guide" if they actually wanted to play the game, so their use of Copyrighted screenshots would only be considered to have a positive effect on the market for the nintendo games. No one is deciding to look at screen shots in lieu of buying the game.It may be that Nintendo also publishes a "Strategy Guide" and they want people to buy that. A third party Guide could have a negative impact on their guide. Even then, they would have to show that the third party Guide was violating the Copyright of the Official Guide, and not the screenshots of the game. I can't write a review of a movie and then claim that other reviews violate my copyright.
-- Don't Tase me, bro!
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Nintendo is saying that they copied artwork, not just screen shots. Each individual peice of art probably has it's own copyright.
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Nintendo makes its own stratagy guides, and trys to sell them. If people can already get all the info they need off the 'net. then they don't need to buy nintendo's.
I'm not saying that what nintendo is doing is morraly right, but it may be legaly right.
ReadThe ReflectionEngine, a cyberpunk style n
There are already several CD-ROMs available on ebay with Windows N64 emulators and games on them. Not sure about anything mature for Linux. None of the CDs for sale are legal, of course.
Thing is - Nintendo is hurt the least by copying - game developers are hurt the most. Developers actually pay in advance for cartridge production. N64 has made its money no matter what, unless they miss out on the developer purchasing an additional run of games, which would take a pretty substantial copying campaign.
The only way the above method of hurting Nintendo is valid is if these are actual Nintendo-branded games that are being shared.
It might just be me but suing over IP seems to have become a cliche in the IT world/court system. In the last year Suing over IP become like dumping a whole cow in a pen a rabbid starving animals. Everyone suddenly thought it was easy money and that anything could be considered IP. No it's just another cancer on the court system.
Now with the rant out of the way, do screen shots fall under the same laws as movie screenshots? If so then I can see Nitendo having a small issue over it but in the long run wouldn't it be more free advertisment?
Trying to be different, just like everyone else.
or, Brand Bullies
Corporations use copyrights, trademarks, and patents to control those outside of their own corporate umbrella. If Nintendo is able to claim copyright protection over screenshots, imagine the kind of censorship (the most powerful kind, more insidious than direct censorship: self-censorship) control Nintendo will have over review sites and magazines. In theory, consumers rely on these sites for independent information whether it is strategy guides or product reviews. Any strategy guide not produced by Nintendo is a competitor for their own line of licensed and approved strategy guides. These independent companies need to be able to criticise and contradict the companies they cover, without fear of being sued for copyright and other infringements. Unfortunately, Nintendo has the resources of a multinationals corporation behind it, and can therefore dictate the terms of industry coverage to the press.
We must resist corporate control.
Copyrights and patents may be slectively enforced at any time by their holders. Trademarks must always be enforced, or they lose their value.
GPL made simple: What was my stuff is now our stuff. If you improve our stuff, please keep it our stuff.
First, Nintendo is trying to prevent strategy guides from being written about it's video games. This is a long shot but Nintendo has nothing to lose but legal fees so they figure just go for it. Since nintendo has, in the past, licensed outside firms to produce strategy guides, it is trying to claim the precedence that such guides must be licensed(See: complaint point 14). I see no such right. There is no valid copyright claim. A review or synopsis of a work is a well defined example of fair use even if the review is comercialized -- movie reviews in newspapers being a prime example.
The place where dailyradar runs into problems is in the fact that they used trade marked images to promote the guide. The credible claim that nintendo has is found on pages six and seven of the complaint. DR used a cover that was deceptivly similar to the one of the nintendo book. They used a similar logo to the nintendo book adding the words "100% Unoficial" in small type. They also claim trademark protection on character images. This is the same protection that doesnt allow me to start printing Bart Simpson shirts. Nintendo may very well win on this point. Daily Radar was using images of character's owned by Nintendo to market it's own product.
yup.. think I saw it a few times in EULA's. yes, I actually read them cos I like a good laugh. a EULA can't stop a review, bad or good. a EULA cant say: you cant sue us. you can. EULA's are filled with all kinds of standard lawyer crap, and in most cases the biggest part of the EULA is not valid. Ofcourse, maybe in the states you can do these silly things.
Europe has left most of the feudal ways, the US is reinstating them with corporations as the new nobles. companies give money to the two political parties that have a chance of getting a president. That's not necessarily because they like the views of that party, but it's because they want to buy influence or at least a willing ear.
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
Okay, Nintendo paid the artists that made the computer graphics and the Pokemon logo and all that stuff. They sued over a book that is being sold for a profit that makes extensive use of those logos and images. Nintendo does bless this kind of thing, if it is handled by the publishers properly. I figure that probably means some sort of compensation for the use of the copyrighted images.
Daily Radar's rant (it's generous to refer to it as an article) is whiny and juvinile. Daily Radar has never been sued for any news story or feature on its website, but they are taking their ball and going home. If they had published the guide on the website, and not charged for it, I doubt there would be any trouble.
Don't forget that Friday is Hawaiian shirt day.
Now, think of it this way: Nintendo lisences other publishing companies to make strategy guides. These companies in turn pay a sum to be able to use Nintendo's intellectual property. This other company does not.
Where does that leave Nintendo? This company is using their IP to cut into their profits.
They have a legitamite case. I don't think I want them to win, but it is a legitamite case. Fair use is most often applicable to reviews and parodies, not making a product about the copyrighted material in question.
If you want to read the actual suit, it's here in gif format.
Oh, and this is a straight-forward copyright/trademark case, no EULAs involved at all. Console games don't have EULAs.
Sounds like typical bullying to me. If these screenshots/whatever were acquired via legal means (ie. not espionage or anything...) I don't see how Nintendo could object. After all, it basically amounts to free advertising for them.
I strongly doubt that anyone here (myself included) has anywhere near enough knowledge about what is going on to be mailing Nintendo about it. At least, if anyone does know enough, they know that there are two sides to the issue. Let me re-state that...
ATTENTION ALL FLAMERS, ZEALOTS, AND ANYONE WHO IS PLANNING TO MAIL NINTENDO: You DO NOT know enough about this issue to be stating your opinion on it. There are TWO SIDES to every issue. NOT ALL LAWSUITS ARE BAD. DO NOT JUMP TO CONCLUSIONS. If you flame Nintendo for this, not only are you a moron, but you have not helped the issue. You will only be hurting things.
As for you, Alien54, you have no idea how much hardship you have caused to Mr. Kaplan, who probably has nothing to do with this lawsuit? Worse yet is all the people who answer e-mail at Nintendo, who will now have to read mindless hate mail (yes, HATE mail) directed at them when they haven't done anything wrong. Are you proud of this achievement? Do you like it when people suffer? Do you know jack shit about this case, who is involved, what laws were broken, etc.? If the answer were really so obvious, the judge would throw out the case!
And moderators -- next time someone posts contact info for the sole purpose of getting someone flamed, mod them down as "stupid". Oh, wait, there is no "stupid"... Well, take your pick then, but do NOT mod this shit up.
If there is anything I truely hate in this world, it's zealots and flamers. People who believe that there is one right answer in an issue like this, and violently support that side. The ironic thing is that the ones on Slashdot think that they are smart just because they are computer geeks.
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You suspect they're suing under UCITA?! EULAs?! What have you been smoking, man? It's a fairly standard copyright case. Nintendo owns the copyright to X and Daily Radar is copying X without permission from Nintendo. And, really, if corporations can get away with making profit from the innovation and work of others, where's the incentive to actually innovate? It seems like this is a fairly standard copyright case that falls directly inline with the meaning and intent of copyright. Which isn't to deny the existence of illegitimate copyright/patent cases that don't uphold the original intent of the law -- those exist. But I don't think this is one of them.
If a corporation is a personhood, is owning stock slavery?
I thought movie screenshots were illegal without permission...same with like a hockey or football game capture. If so, I'd say this may not be new for Nintendo either.
Who wants to impress his boss, apparently.
According to the Daily Radar article, Nintendo is objecting to Imagine's use of screenshots in their strategy guide, and it's trademarks (i.e., the word Pokemon). I would suspect that Nintendo's problem is that Imagine is using their copyrighted work (screenshots and Pokemon) to sell an unofficial strategy guide. While this lawsuit apparently only applies to the strategy guide in question, one might think that it could, if successful, be applied to web sites as well. After all, if I post, say, a review of a game on my web site using screenshots, etc, and I have banner ads above said review, I'm earning money using their stuff.
I'm no big fan of Daily Radar's site, but I think they did the right think in refusing to run any more Nintendo related reviews, previews, etc. Frankly, I would have gone a step farther, and called for an industry wide boycott of Nintendo related articles (though not likely to happen). This crap's got to stop somewhere.
Just to be clear, the suit isn't over screenshots posted to the website, or screenshots used for reviews and previews. Those fall under Fair Use. This is strictly about the 100% Unofficial Strategy Guides. They do not fall under Fair Use. pax, -Chris
Before you rush out and beseige Nintendo with half-cocked assertions about fair use and copyrights and such, I suggest you read that complain text. From the way they describe the exhibits, it sounds like (as has been pointed out) Imagine Media was kind of heinous in their actions here. They were selling Unofficial Guides with ripped-off artwork. This isn't the case of a news site or even an amateur "cheats, codes and hacks" site giving advice to someone stuck on level 3 or whatever. This sounds like they were selling Pokemon-like products.
/.) seem to be frivoulous and of little more than corporate harrassment value.
I agree there is too much litigation as companies try to sew up the 'net for their own money-grubbing purposes. But there are reasonable lawsuits even though the vast majority of them (if you read
SDMI: Finally! Music that won't rip or burn! Brought to you by the fine folks at RIAA.
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-Be a man. Insult me without using an AC.
- I don't care if they globalize against free speech. All my best free thoughts are done in my head.
More importantly, though, they can turn this against Daily Radar when they are allowed to publish things about Nintendo again (which they inevitably will) and deny them advertising. Then they will tell their licenses to deny them advertising. Some will follow suit, others will ignore Nintendo, but ultimately Daily Radar will lose some money in this fiasco.
It happened with us at GameSpot in 1997 with a company we gave a bad review to. More publicized was the Capcom/EGM debacle when EGM shot down one of their Street Fighter 2 clones.
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-Be a man. Insult me without using an AC.
- I don't care if they globalize against free speech. All my best free thoughts are done in my head.
This walks in the interesting direction of saying that the consumers of a companies' product are inherently unqualified to communicate to the company about a product or a situation involving that product.
Now I'll grant you that *that* is likely *not* what you intended to say. But you can see how it can be taken that way, no?
And this does raise an interesting point of when do the consumers of a product have any right to communicate with the company that puts them out.
I'll grant you that it is less useful when it bears a marked resemblance to the jabbering of rabid monkeys.
But I *do* think that the consumer has an inherent right to communicate with the company that produces the product that they buy. Now it is up to each of us to cultivate the intelligence of the consumer.
The data, by itself, is not evil. The correct target is the cultivation of intelligence.
"It is a greater offense to steal men's labor, than their clothes"
It sounds like the legal eagles are trying to make sure that they stay employed by constantly drumming up new angles and new things to worry about. This means that the comapanies have to pay the lawyers (naturally) to protect them from this new threat, real or imagineD.
It actually seems like another form of blackmail, or extorion, playing off the fear. I have heard of several situations where once a suit was filed, it HAD to continue because if it was settled, then the lawyers would not get their fees, and so they would sue the corporations!
In any case I applauded the action of Daily Radar, as seen in this snippet
I recall other articles recently where certain non-disclosures were offered by various companies which essentially forbade writing about the product in a negative fashion. The upshot being, honest reviews where not the ones you saw in advance on the product release, but some months after. I even understand that EULAs are getting into the act as well.maybe someone can provide some links.
"It is a greater offense to steal men's labor, than their clothes"
Despite many the fact that many Slashdot readers are jumping up (as always) to exclaim "Copyrights are bad! Big Coprorations are bad! Nintendo is bad!" Nintendo is well within the right, not only legally, but ethically. If you would care to read the orgininal suit (http://www.dailyradar.com/features/game_feature_p age_2135_1.html) you would see that, too.
One fact that can not be ignored is that Nintendo is alleging that Imagine printed complete reprodcutions of several of Nintendo's (legally copyrighted) playing cards. Under "fair use" (which many Slashdot readers are quick to cite, as if it nullified all copyright law), Imagine is withing their right to, say, quote the text of the card. However, by reproducing the copyrighted artwork on the card in whole, they are clearly in violation of copyright law, both in letter and spirit. It's failry obvious that Imagine is making money off of artwork created by Nintendo. The same goes for other artwork that Nintendo alleges Imagine ripped out of their own manuals ans strategy guides.
Despite the fact that Nintendo is a big company, and they are making money, they had to work for it. Pokemon did not create itself, the people at Nintendo worked hard and made it a success through hard work, excellent marketing, prodcuts people like, and hard work. and no matter how "bad" people pokemon may be it is, supply and demand still rules, and there is definately a demand for pokemon products. As the copyright holders, it is Nintendos right to be the one making money off of Pokemon. For imagine to steal artwork is unethical and illegal. Nintendo is simply protecting their copyrights the way a good company should.
Those quick to judge Nintendo becasue in the Slashdot copyright protection is a capital crime should step back and look at what is really going on.
(Keep in mind I have not seen the Imagine publications allegedly in violation. My argument are made assuming that Nintendo's allegations are true, and that Imagine did in fact publish Trading Card scans and other artwork from Nintendo's manuals. If Nintendo is making this up, please, carry on with the Nintendo bashing.)
Stupid like a fox!
If Nintendo wins, then there will be one less Pokemon site on the web. Then we all win!
Donate background CPU time to fight cancer.
Consider the fact that the guide in question featured several pieces of artwork ripped DIRECTLY from Nintendo's guide.
I don't think 'fair use' covers charging for someone else's artwork without their permission either. Imagine Media was charging $12 for stolen artwork. Doesn't that make you feel all warm inside?
Specifically addressed by copyright law and not a fair use issue.
/ nvi_page_02.gif">this</a>? There's Pokemon Trading Card artwork, as well as other artwork, that Nintendo believes is infringed upon without due compensation or licensing from Nintendo.
See <a href="http://media.dailyradar.com/images/misc/nvi
Geek dating!
GPL Deconstructed
Its more than just about the Strategy Guides. There is info at this link
Besides the screenshots(which I think are bogus allegations and fair use) there's also the artwork from the Pokemon trading cards as well as other promotional/product artwork.
That's clearly a violation, if they haven't licensed such artwork from Nintendo.
Geek dating!
GPL Deconstructed
So now the fan who doesn't want to pay $20 to buy a (probably watered down) "Official" strategy guide from Nintendo can't go and read shit off the net when they're in a jam? Thank god for GameFAQs.
It's shit like this that makes me ashamed that I owned Zelda bedsheets when I was 10 ;)
--The space between my ears was intentionally left blank--
Haven't game magazines, even those not owned by Nintendo, Sega, etc., always published screen shots and such? What business interest, exactly, is Nintendo trying to protect here?
--hongpong.com
On a side note, I found the complaint Nintendo filed publicly with the court, scanned and archived by daily radar themselves. Apparently the bulk of the charges rest on Imagine using artwork from manuals, and deliberate copying of the Pokemon Gold's manual cover style.
Personally, its a toss up for me. Its a bad prescedent, but maybe its worth it to kill a trendy, no-gameplay scourage like Pokemon...
I Browse at +4 Flamebait
Open Source Sysadmin
Imagine Media needs to fire their lawers. Fair use is well defined in the law. This ain't it.
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You sure got a purty mouth...
Imagine Media published an unofficial strategy guide, including over 100 screenshots which, when pieced together, represent a large proportion of the Pokemon world. They included 250 images of Pokemon characters. They copied the cover style of the official strategy guides completely, adding merely the words "100% UNOFFICIAL". And then they added a copyright notice claiming all of that was their own creation.
I think Nintendo have a pretty good case against them. Fair use this ain't.
I didn't pay for my operating system either