Retro Gaming YouTuber Says Nintendo Is Unfairly Targeting His Homebrew Videos

Over the weekend, the YouTuber known as Modern Vintage Gamer announced that Nintendo has flagged several of his videos about emulating old games on the Switch, some with hundreds of thousands of views, for copyright infringement.

YouTube automatically takes down videos with strikes against them. He said he tried to dispute the claims, but was unsuccessful and is now taking steps to reupload the videos elsewhere.

Discussing the issue in a new video, Modern Vintage Gamer, whose real name is Dimitris Giannakis, said Nintendo flagged four of his older videos over the past week.

The videos include one called “Homebrew on the Nintendo Switch goes NEXT LEVEL”, which has 290,150 views, and “Homebrew on the Nintendo Switch 2019 Update - Full Speed N64, Half Life, and More,” which has 280,824 views.

All of the videos focus on issues related to Switch homebrew, which is the act of getting unauthorised software, including emulators for older games, to run on the platform. Giannakis said the reasons Nintendo listed for the copyright strikes were the inclusion of small amounts of gameplay footage from games like Super Mario 64 and The Legend of Zelda: A Link to the Past.

Screenshot: Modern Vintage Gamer, YouTube

“They’re all Switch homebrew videos and claims reasons are for things like Mario Kart, Splatoon 2, which by the way I don’t have any Splatoon 2 footage in any of my videos, and Link to the Past,” he said in the video.

According to Giannakis, the claims against his videos were because of screenshots or footage of games being played on an emulator that appeared in them. Giannakis argues that his videos fall under fair use and shouldn’t be subject to the copyright strikes, adding that the game’s he’s running on the Switch are all ROMs he owns original copies of and aren’t pirated.

Nintendo did not immediately respond to a request for comment.

In the past the company has been very strict about how footage of its games can be used on YouTube, issuing takedown notices against content creators for things like Let’s Plays and even, in some cases, re-uploaded trailer footage of upcoming games. Last November, however, Nintendo announced a less rigid set of guidelines for content creators.

“We encourage you to use Nintendo Game Content in videos and images that feature your creative input and commentary,” the guidelines currently state, though Nintendo reserves the right to takedown content it feels violates those guidelines.

Screenshot: Modern Vintage Gamer, YouTube

The homebrew scene on Switch has come a long way since the console released in March 2017. Last October modders announced that they had found a way to get RetroArch, a program that houses lots of video game emulators in one interface, running on hacked Switches.

This is the type of software Giannakis had been discussing in the videos Nintendo flagged.

It’s unclear why Nintendo waited until now to file copyright strikes against some of Giannakis’ content, but he told Kotaku he’s not the only person.

On April 7, YouTuber Tech James uploaded a video explaining that he would no longer be making tutorials about how to install custom firmware on the Switch due to takedown notices from Nintendo. Switch hacker Skullator NZ, who had the same problem last year, eventually moved his work to Twitch to circumvent the issue.

“Nintendo has never had a good understanding about emulation,” Giannakis told Kotaku in an email. “They see it as a threat.” He said that people who own copies of Nintendo games should be able to run the game on any emulator they choose, “without fear of repercussion.”

Giannakis said he plans to focus his channel on discussing mods for older consoles and will no longer host videos about the Switch until it becomes a legacy platform.

“While I’ve received some good advice about how to mitigate future potential copyright claims, unfortunately the threat is always there and it’s just not worth the trouble,” he said.


Comments

    Well, as someone who's dealt with a bunch of YouTube copyright claims this is absolutely not fair use.

    If your video could be interpreted as having a significant impact on the likelihood someone would buy a game or copyrighted IP that almost entirely bars your work from being 'fair' unless it was made for review or critique purposes. Videos on getting unauthorised software to run on the Switch to play games that will almost certainly be acquired by people that don't own the games is not and should not be protected under fair use laws.

    This really grinds my gears, I've been pretty careful about obeying fair use laws (even though we don't have them in Australia, but because most of my audience is American and I'm uploading to American servers owned by an American company I'm inclined to think it still may in one way or another pertain to what I do) and seeing someone blatantly disregard, ignore or misuse the protections they have really frustrates me.

    It sucks when your work isn't protected by copyright law, but don't try to claim it is when the very software you're making videos about is obviously totally in breach of copyright law. Hey, maybe Nintendo did misuse the claim system, but they'd honestly be in their rights to issue a copyright strike, consider yourself lucky.

    While I empathise with the frustrations of small creators getting claims from big companies (I've received a bunch) your only leg to stand on in an argument like this is a moral one, not a legal one, and as soon as you try to claim fair use in a case that's blatantly not you're potentially hurting the rest of us.

      Nothing illegal about homebrew or jailbreaking your device, nor running emulators. Ideally he'd show off homebrew ROMs but if he demonstrated anything Nintendo then that's enough to set them off.

        Aren't you circumventing copy protection? Also I'd say higher than 99% of people would download ROMS rather than make their own but that's something else.

          What people do is not in his control.

            No, but posting instructions on how to do something would certainly count against being 'fair' use.

        Pretty sure it's against the terms of service on the Switch (and other hardware), but even if it wasn't we all know how people use emulators and it's pretty clear from the thumbnails alone that's something the YouTuber in question knows too.

          Without watching the videos they're just clickbait thumbnails for all we know. Breach of ToS and copyright aren't the same thing. People are still developing homebrew ROMs for Megadrive, NES, SNES, etc... people doing bad things isn't a reason to not let people do good things. If it were anything else besides YouTube they would not have targeted him.

      What this guy is doing is probably illegal depending on the country (format shifting is legal in some countries for personal use however) and the actions in the video are probably and individual breach of copyright laws for which he could be punished. But i would argue that showing a snippet of a Nintendo game to prove your homebrew expertise is probably fair use.

      The problem is not that Nintendo have taken down the video it is that they have used Youtube's copyright system inappropriately to do it which leads to problems for all other content creators where Nintendo and other companies can ignore fair use to censor content creators on a whim, realistically Nintendo should have followed up with Youtube to flag the video appropriately for the potential illegal content and potentially taken legal action (which i am sure they want to avoid incase it sets a legal precedent) instead of using the contentID system as its own personal censorship system

        I do think Nintendo used the system incorrectly, but I am about as certain as I can be that this isn't fair use all the same.
        That's why I say they might be able to mount an ethical or moral argument - for example one that went - because the original developers and publishers will receive no money from a legally obtained copy there should be nothing wrong with emulating them until a re-release or official copy was made available. That would be a better argument. That's not their argument though.

        While it's true the use is transformative (the focus isn't on the games in question) and the use is presumably brief (benefit of the doubt there) the educational aspect is in regards to a common means of piracy (regardless of their apparent lack of piracy that use would still be disqualified from being 'fair' in the legal sense), and it would be reasonable to assume that this use would leave someone less likely to legally acquire the IP shown (I know I wouldn't buy an original N64 cartridge if I had an emulated copy of the same game and I doubt most people would) and thus would likely not be protected under fair use.

      Homebrewing/ Jailbreaking is perfectly legal in the USA.

      His video is fair use.

        OK, so I just installed a homebrew video player on my Switch that allows me to watch a full movie, so I put up a video online explaining how I did it with significant chunks of, say, The Dark Knight.

        Are you saying my use of The Dark Knight footage is fair use because it's legal to make or use the software I played it with?

        Fair Use is a protection against copyright law offered when the use is legally considered fair, whether or not homebrew is legal is irrelevant, I did not (in this hypothetical example) have the right to copy and reproduce the footage I did.

        Now when it comes to emulation software companies such as Nintendo don't allow emulation unless it is done via one of their consoles and the software they created. They don't allow you the right to copy their games, whether you own them or not, and the major factors of fair use (educational purpose, used for critique or review, transformative use etc.) don't adequately cover this use.

        Now I'll grant you the fact I'm no lawyer, but yours is false equivalence argument, one that doesn't actually have any bearing on Fair Use protections.

    Sure would be nice if there was a legit way to play N64 (and other consoles) on the Switch. NES games don't really do it for me, but Nintendo seems content to drip-feed me those for a fee. I love my Switch but I would love it even more if I could whack a few N64 games on it.

    Really disappointing the way this process works with disputes going back to the complainant (ninty)

    Not fair use, not unfair and the one who doesn't seem to understand is him.
    As it is I find it highly unlikely that somebody so deep in the home brew scene doesn't know how Nintendo operates when it comes to this sort of thing.

    I'm all for Nintendo offering better ways for us to enjoy their back catalogue and even play the games we have but I'm sick of folks doing the wrong thing and then having a sook about it after the fact.
    Can you imagine what these folks could actually achieve by putting their efforts toward something that could actually be mutually beneficial for both consumers and company and then using the proper channels rather than always trying to bypass the law and packing a tantrum when the inevitable happens?!

      "but I'm sick of folks doing the wrong thing and then having a sook about it after the fact."

      Homebrew/ Jailbreaking is legal in the USA

        However the roms and backups/copies of owned games are still illegal.
        Perhaps I should've clarified that particular part.

        I don't agree with it either, I think (especially with older games) that we should have some options available for ensuring the integrity of originals via legitimate backups but doing so in blatant disregard for the law and arguing the point after the infraction is never the way to go about it.

        Homebrew/ Jailbreaking is legal in the USA
        You've simplified this to the point where the statement is not actually true. Jailbreaking is generally prohibited by the DMCA's anti-circumvention provisions unless it is covered by an exemption.

        There is an exemption for jailbreaking "Smartphones, Smart TVs, Tablets, or Other All-Purpose Mobile Computing Devices". The EFF petitioned the US Copyright Office to have the exemption broadened to jailbreaking all devices, but that was rejected with them instead extending the exception to voice assistant devices (i.e. Google Home, Amazon Echo, etc).

        While the Switch could be considered a mobile computing device, it probably doesn't fit the "all-purpose" label. So in this case it probably still illegal.

    It's a shame this has happened to Mvg. He actually makes/ports homebrew to the switch and has been doing homebrew stuff since the og Xbox days. He makes some great videos as well.

    With the videos taken down, it is a bit hard to judge. I suspect that Nintendo would have a strong case against the videos based on the DMCA's prohibitions on circumvention devices. The encryption and secure boot systems on the console would likely be considered technological measures to protect the game software and/or the operating system. So a video describing how to bypass those protections would likely trigger the anti-circumvention provisions of the law.

    But that's not what they took his video down for: instead the take down is based on use of footage from games in the videos. Even though this is a weaker claim due to a possible fair use defence, it is probably easier for Nintendo due to the lower standards of proof needed by YouTube's internal copyright strike system.

    So that's Nintendo misusing the YouTube's take down system to take down videos they could probably have removed via the DMCA anyway.

      Yeah this better articulated than i did in a response above, ContentID take downs seem to be much easier for companies to do so they often use them for almost every complaint, i think the use of Nintendo games in the video constitutes fair use but the hacking of the system and copying of the game (even if it is format shifting) would fall foul of these laws and Nintendo should have used the appropriate avenue to remove these videos.

        I suppose I should add that I don't particularly like the anti-circumvention clauses of the DMCA: it risks us losing access to a lot of creative work, and doesn't distinguish between circumvention for legal and illegal purposes (e.g. bypassing region coding vs. piracy).

        But it is the current law of the land in the US, so is a tool available to Nintendo.

          Preaching to the choir, it you purchase a piece of tech you should have the right to modify it for your legal personal use otherwise you end up with the perverse stuff like John Deer preventing farmers from undertaking repairs on their own tractors

    According to Giannakis, the claims against his videos were because of screenshots or footage of games being played on an emulator that appeared in them. Giannakis argues that his videos fall under fair use and shouldn’t be subject to the copyright strikes, adding that the game’s he’s running on the Switch are all ROMs he owns original copies of and aren’t pirated.

    I'll say the same thing here that I said in the comment section of his youtube video.

    It doesn't really matter unfortunately if you own the original games or not, roms are still illegal. Under some laws you're allowed to make backups of your own copies of games, but that will require you to actually extract the rom data yourself, and you're still not allowed to actually use that backup for commercial purposes. So even if you did rip the roms yourself, you can't upload a video of it to youtube and monetise it (or sell the backup, etc). And you definitely can't download a rom that somebody else ripped and say it's okay just because you own the original game because that's not a backup you yourself made. It's still copyright infringement.

    Emulators themselves are a different story, they are totally legal (unless they are using copyrighted software like system BIOS), but roms are not. I'm not saying that what Nintendo has done is right, claiming videos that don't even feature footage of the game they are claiming for is very dodgy. All I'm saying is that you can't argue that the roms you're using in your videos are okay just because you own the originals.

    More info: https://www.tomshardware.com/news/why-most-roms-are-illegal,37512.html

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