I’m angry. You see, recently a truly fantastic Metroid 2 fan recreation was released: AM2R. I played it for a live stream. It’s truly fantastic, and has an amazing amount of original work put into it, being far and away more than a “fan port” of the game.
But then it got taken down by everyone’s least favorite four letter word, a DMCA, straight from Nintendo. I’m very frustrated with Nintendo for the copyright claim, very frustrated the game was taken down (though torrent sites seem to be ensuring it will not be lost). But that’s not what I’m writing this article about.
I’m writing this because this conversation about copyright and fan projects is…the same as all conversations about fan projects. The conversation is full of ignorance, misunderstanding, and what I can only assume are deliberate bald-faced lies about what companies have to do to protect their copyright.
Companies Don’t Have To Shut Down Projects to Keep Copyright
You’ve heard this before. If you don’t rigorously protect your copyright, you lose it! So companies, unfortunately, do what they have to do in order to keep operating and they don’t really want to shut down projects at all!
It’s a tragedy but it’s so reasonable. What a solid argument, the company seems like the bad guy, but they have to be because of those darn lawyers! Too bad it’s a complete lie or extreme ignorance at best.
“But TapTap,” you bellow, outraged, “You’re not a lawyer!” I’m not! I’m a spikeball. But Sara F Hawkins is a lawyer, and she has a nice little article explaining the difference between copyright and trademark.
Improper use of a trademark may dilute your rights or create confusion. Inconsistent enforcement of your trademark rights can cause you to lose protections afforded under state or federal law. With copyright, that isn’t the case. As a copyrightholder, you can pick and choose which cases of infringement you pursue without diminishing the host of exclusive rights under copyright law. – Sara F Hawkins
I’ll note this isn’t fancy legal advice or anything. This is just barebones, anyone-should-know-this, basic competency about trademarks and copyright in the United States. There’s nothing controversial said here.
So, the persistent tale we’re told about copyright and fan projects is based merely on a total failure to understand the difference between copyright and trademark. In theory, that’s okay, copyright and trademark are complicated beasts that most people don’t even really need to know that much about.
The problem of course is when people who don’t know this incredibly vital and oh-so-fundamental difference start ruling the discourse on copyright. And because we, collectively, have done such a bad job at owning the conversation on copyright and fan projects, guess what? The idiots won.
Nintendo’s In On It Too
It’s not just fanboys that are the problem however. Big companies love this ignorance over trademarks and copyrights, and have a vested interest in keeping the laws as vague, confusing and overpowering as possible—just ask our “friends” over at Disney, who have successfully paid their way into making copyright effectively immortal in the United States (even though the Constitution of the United States specifies copyright must have limitations).
In a statement to Polygon, Nintendo claims:
Nintendo’s broad library of characters, products, and brands are enjoyed by people around the world, and we appreciate the passion of our fans. But just as Nintendo respects the intellectual property rights of others, we must also protect our own characters, trademarks and other content. The unapproved use of Nintendo’s intellectual property can weaken our ability to protect and preserve it, or to possibly use it for new projects.
From the above, we know this is basically bullshit. A DMCA claim was filed, which has nothing to do with trademark. Only trademarks are weakened by a lack of aggressive legal protection, so Nintendo’s own statement is a belligerent sort of ignorant that twists the conversation to make it look like they had to do something they very much did not. Thus far there is no legal action regarding trademarks, so the entire foundation of their argument as presented, that they’ll lose protections, is false. And this isn’t just some dumbass on the internet, this is Nintendo’s PR issuing a deliberately misleading statement conflating copyright and trademark. This is a problem.
You Can End This Madness
If you’ve been spouting falsehoods about copyright, defending Nintendo et cetera when you don’t actually know the laws in question, please just stop. I don’t even care if you actually do go out and learn, but please for the love of all that is right and just, stop talking about things you lack the absolute most basic comprehension of.
By talking about copyright as if you knew this for sure (when you’re so incredibly wrong I must note) you’re destroying the discourse on an incredibly important and unfortunately convoluted topic. Please do not fall prey to the Dunning Kruger Effect.
If you don’t know about copyright, all you have to do is stop posting about it like you know. This should be basic human decency. Yet I see it all the time, people spouting the companies are in a rock and a hard place and they have to DCMA these projects—this is completely false and by lying about copyright, people like this have fooled a lot of other people into thinking it’s true.
To generalize, if you don’t know what you’re talking about, don’t talk! Ask questions and research instead. Find words written by a lawyer. That’s why I did!
If you see people spouting falsehoods about copyright, don’t let them rule the conversation. Reply back, whether it’s on Twitter, IGN, Neogaf, whatever. Tell them “Actually, trademark requires strict enforcement but Copyright does not. They’re different. Here’s an article on why.“
We can stop this madness. We don’t have to let ignorance rule this discourse. But each of us has to stand up, research before we talk, and we must not let the voices of the ignorant drown out the truth. This is important damn it, and I want each and every one of you to go out there and do just a little bit to help bring this world to a place that encourages freedom of expression and creation. Or at the very least, one that oppresses free expression with proper legal backing, as dire as that is.
I’d also like to call out anyone reading this who writes for major gaming news sites. Gaming news sites tend to do an extremely poor job at owning this particular conversation, trying to remain “neutral” (as if that were a noble affair when freedom of expression is on the line). But letting your readers wallow in ignorance about the most basic concepts of copyright as it relates to fan projects does not do your readership any favors. In fact, you’re actively harming both your readers and these fan projects when you cast a blind eye at these situations.
Write articles. Inform your readers about fan projects and copyright. Let them know that this is not something Nintendo had to do, and that Nintendo is, frankly, lying through their teeth in the letter they sent to several media outlets claiming they’re protecting their copyright or they’ll lose it.