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Clickbait Kotaku: Nintendo's Lawyers Need To Chill

CyberPanda

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Here’s a taste of where we’re at in 2019: Every single time Kotaku writes about a fan game involving Nintendo characters, the first comments are never about the ambition or quality of the project. They’re about a fear of Nintendo’s lawyers.

It’s almost a meme at this point, so predictable and tragic has the process become. The world finds out about a cool fan game someone (or a team) has made, the world gets ready to enjoy it, Nintendo’s lawyers step in, they get it taken down, and we don’t end up getting to enjoy it after all. Generally, Nintendo doesn’t do anything about fan art, fan remixes of music, or other such projects. But for whatever reason, it draws a hard line at fan games.


It’s easy to blame these lawyers, as though they’re out for nothing else than to spoil our fun, but the reality is that they have a job to do. In their eyes, enforcing Nintendo’s copyright means enforcing it, because were Nintendo to get slack and start letting every little product and service use their characters without permission, then (or at least the legal theory goes) it gets harder to defend the company’s ownership of them should they need to take a bigger product or service to court.

An example of this stance is when Nintendo sued Maricar, the dress-up go-kart service that lets tourists drive Mario Kart-style vehicles around Tokyo while dressed like ersatz Mario characters, with their lawyers saying, “In order to protect our valuable intellectual property that we have built up over many years of effort, we will continue to take resolute measures in the future.”
By the letter of the law, all this is fine, but the letter of the law can and often does suck. It’s where the spirit of the law is concerned that Nintendo is letting itself down. The company needs to start making a better distinction between things that are trying to steal from them and make money, like Maricar, and things that are simply homages to their legacy. Like fan games.

It feels like Nintendo’s response—or at least its guidelines handed out to the legal attack dogs representing it—to fan games at the moment is almost algorithmic, so ruthless is it in hunting out and shutting down even the most innocuous projects.

I understand it’s hard for the company, given the scale involved. Nintendo’s popularity is in this case a double-edged sword, in that it’s great news when it comes to fan adoration and sales, but it also means the number of tribute games in development must dwarf those that other video game publishers would face. So policing what, from their perspective, would look like a tidal wave of potentially copyright-infringing video games must look overwhelming.

So if Nintendo ever wants to fix this—and who knows if it’ll ever bother, since it’s a policy that has been pursued for decades—it’s going to take some work, but there’s precedent from within the company. Nintendo had, for a while, been making things difficult for fans on Youtube until the creation of the Creators Program, where anyone who wanted to cover Mario or Zelda or whatever games in a certain way was able to check in, get a set of rules to go by, and then be free to create. The program wasn’t perfect, and it has since been retired and replaced with a set of guidelines—but it was something.

It wouldn’t kill them to implement a similar program for fan games as well, even if they’re harder to keep track of, since YouTube’s a centralized platform and the world of fan games is a vast wilderness scattered around private forums and Discord servers.

Nintendo needs to read the room here and realise there’s a big difference between a pile of pirated 3DS cartridges at a market stall and a loving, non-commercial Pokémon game made by fans, for fans. These games are tribute, not competition. Mario Battle Royale, the 100-player take on Super Mario Bros. that had to change its name last week to DMCA Royale in honour of Nintendo’s legal threats, was never going to cannabalize sales of Super Mario Maker 2.
Likewise, Breath of the NES, another recent and promising fan project that was turning Breath of the Wild into a retro top-down Zelda game, was never going to stop a Nintendo fan from preordering Link’s Awakening.

Maybe those higher up at Nintendo, or at least higher up in their legal departments, could do with seeing what Game Freak had to say about Pokémon fan games back in 2016 when we asked them about it at E3:
Despite the politics of intellectual property, the creators of Pokémon appreciate that some fans are learning about the process that makes the franchise possible in the first place.
“If I see that you are having fun creating things, or working on an art project...working on game development, we kind of share that feeling,” Masuda said.
But the most surprising thing about our exchange was when Masuda encouraged those fan game developers to join his team.
“In general terms, as creators we both have fun creating things, and at Game Freak we are always looking for skilled individuals, so please apply!” Masuda chuckled.
Better yet, Nintendo could take a look at what some of their biggest competitors are doing in the same space. For years now, a dedicated group of Halo fans have been building an all-new game called Installation 01. The project eventually attracted the attention of Microsoft, and do you know what Microsoft did?

They didn’t send in the lawyers. They didn’t get the game shut down. They met with Installation 01's creators and worked out a deal. So long as the fan game is released free of charge and displays this text:
Installation 01 is a completely separate entity from 343 Industries and Microsoft Studios and neither 343 Industries nor Microsoft Studios is formally funding or partnering with this project.
Then they’d be allowed to keep on developing it, and then releasing it into the wild. That’s it! Super easy for the creators to implement, and more importantly super respectful on the part of Microsoft, who aren’t ignoring their copyright responsibilities, but found a simple legal way to differentiate a fan project from their official works.
As I’ve said, improving their relations with and respect for fan projects would take a little work on the part of Nintendo, but it would surely be worth it, if only for the increased goodwill from its fans over what’s becoming a tiring occurrence.
Then we could look forward to a future where we get to talk about these exciting fan projects on their merits, and actually enjoy them at release, instead of simply worrying about how long it’s going to be before they’re shut down.

 
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Ballthyrm

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On one hand, giving the impression of being hostile to your fan isn't great business.
On the other, i totally understand why they are so protective.

Nintendo IP are some of the most valuable out-there.
There is decades of good games and good will that fan games are riding on.

Nintendo took great care to built Mario, Zelda, etc.
If anybody can make their own fan game and put the name of it, it will devalue the brand.

And please don't say SEGA does it better, SEGA drop the ball on most of their IP so hard that fan games are objectively better than the actual ones, see Sonic Mania.

The Nintendo way of doing this is at least clear. No infringement whatsoever.
IF you take our IPs we will burn you, develop fan games at your own peril.


In any case, making fan game, is like riding a bike with the training wheel on.
Same as fan fiction, you didn't built the affection people have for the character.
You are riding on someone else creativity and not your own.
 
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Kagey K

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I get why Nintendo does what they do. Stuff like the gif with Mario humping Peach with 1up 1up 1up going over her head is why Nintendo cracks down on thier IP rights so hard.

They want to be family friendly and stuff like that isn’t, if that’s what pops up when you type MARIO.
 
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GreyHorace

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Regardless of whether they are being harsh, Nintendo is well within it's rights to protect it's IPs. Sure it's not popular when they shut down fan themed work, but it's their right to do so.

Also, it's kind of hypocritical for bunch of corporate shills like Kinbaku to tell Nintendo to ease up on the litigation and do something for the fans. I seem to recall not so long ago Jason Shyster coming to the defense of a mobile game and mocking the gamers.

https://archive.fo/ruYGx
 

VertigoOA

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There’s been a handful of times when they’d shutdown projects better than what they had coming up for an ip too.

Top down BotW sounds sooo much better than the link’s awakening remake. That Metroid 2 fan remake played better than the mercury stream game. Both fan projects have better art direction than the official products too.

Their solution to piracy should’ve been making all their classics available for cheap. These games being pirated should be an inidicator of money they’re leaving on the table for still being 20 years behind in digital distribution and online infrastructures.

I’m not for fan projects and mods really but Nintendo has prevented some really great stuff from being around... like the mother 3 translation I would’ve cared to play a decade ago. They’re doing the right thing by protecting their properties but the attitude towards the community scene is a bit archaic to say the least
 
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Ovek

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Why the fuck should they "chill" exactly? They are shutting people down who are using and infringing on copyrighted and trademarked characters, art and music.

It doesn't really matter if you think these fan projects are better they are still pissing in Nintendo's yard and they have shown time and time again they will shut you down with impunity.

I have no idea why people even start these projects they must know Nintendo's history with fan projects by now but somehow they still manage to act all shocked when Nintendo tells them to stop like they thought they were a special flower and Miyamoto would love them and directly hire them or some other insane bullshit.
 

Stimpak

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I completely understand Nintendo protecting their IP.

However it does suck when fan games get shut down, period.

Last one I was looking forward to was KOTOR: Apeiron. That died.

Now I’m hoping, Fallout 4 NV stays alive before Bethesda sinks its claws in.
 
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One Big Room, Full Of Bad Bitches
Nintendo’s Lawyers

 

MagnesG

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There’s been a handful of times when they’d shutdown projects better than what they had coming up for an ip too.

Top down BotW sounds sooo much better than the link’s awakening remake. That Metroid 2 fan remake played better than the mercury stream game. Both fan projects have better art direction than the official products too.

Their solution to piracy should’ve been making all their classics available for cheap. These games being pirated should be an inidicator of money they’re leaving on the table for still being 20 years behind in digital distribution and online infrastructures.

I’m not for fan projects and mods really but Nintendo has prevented some really great stuff from being around... like the mother 3 translation I would’ve cared to play a decade ago. They’re doing the right thing by protecting their properties but the attitude towards the community scene is a bit archaic to say the least
I don’t remember there being 2D BOTW? If there is, be smart then just release it on the internet after games’s finished. I really don’t understand what’s the point of hyping it other than to ride that Zelda fame and success, make it Belda or anything. Not that hard. People can still recognize the homage while still being obtuse.

AM2R plays great but there’s nothing remarkable about it. Almot 95% assets were taken from older titles, art direction borrowed from Fusion and Zero Mission, game was buggy AF when it was released 1.0. It blew up then multiple people helped squashing the bugs. The official remake was in development long before AM2R was known, even then it was quite famous for a fangame.

The most interesting thing is Nintendo waited for a fair amount of time before sending C&D. The fan remake was reported on multiple sites (Kotaku itself), countless people downloaded the beta, still they waited until the game finished, then sent the letter. Game was everywhere to be downloaded.

I’d say their lawyers are just doing their jobs properly. They should always be in control of their IPs, not waiting until a serious misuse case appears only to act, while at the same time being lenient for those who deserved it.

Also, you should just play Mother 3 fan translation, clearly they still have issues with how certain characters are potrayed, easily triggering certain people nowadays.
 
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Punished Miku

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nah, they are doing exactly what they're supposed to. No other company knows how to protect, curate, and nurture their IPs better than Nintendo. They have the most recognizable and valuable IPs in video gaming. After all these years, Mario, Zelda, Metroid, are all still as loved as ever. Platformers are barely even a viable genre now, and Mario is still as valuable as ever.

In contrast, look at Sonic. The games were more experimental, with less quality control. Anything goes really. Sometimes you have a hedgehog kissing a girl, sometimes, you have a werehog. Then you have games with low budget investment that don't turn out so well. And here we are. Sonic as an IP as treated like toilet paper.

In reality, everyone with an IP they want to last should learn from Nintendo. They have managed to maintain IP value longer than anyone else in the entire industry. They are clearly doing something right.

Any fan game that puts in the effort to make a whole functioning video game can also make up their own characters. There is literally no excuse. But fan game makers don't want to make their own IP because everyone will ignore them. They want to steal some attention for their game by relying on how recognizable, loved and popular Nintendo IPs are. They are stealing the value of Nintendo IPs to get attention for their game.

I'll never forget all the people defending AM2R, while Nintendo was literally investing in making the exact same game on 3DS. And people still didn't realize how unjustified it was.
 
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BusierDonkey

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I always wondered why people would spend all that time making a remake of a Nintendo IP when they know it'll be taken down and they won't be allowed to sell it. AM2R was well made but they could have used that talent to make something that was similar to Metroid but different without infringing on Nintendo's trademarks. It always turns out the same way.
 

Petrae

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Sorry, Kotaku, but that’s someone else’s intellectual property getting used without explicit permission— and Nintendo has been one of the more strict protectors of its IP. The dumbasses who keep wasting their time on projects like this full-well knowing that Nintendo is ultimately going to cease-and-desist them are the ones who need to “chill”.

I rarely stick up for video game corporations, but this is one of those times. Either run it by Nintendo first or create an original property.
 

#Phonepunk#

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Kotaku truly writing some dumb high schooler discovering Marx takes.

Spiderman shouldn't work with cops!

Nintendo's lawyers should just chill maaaaan!

if Nintendo didn't have their shit down on lock this whole video game mess would have died with Atari.

I always wondered why people would spend all that time making a remake of a Nintendo IP when they know it'll be taken down and they won't be allowed to sell it. AM2R was well made but they could have used that talent to make something that was similar to Metroid but different without infringing on Nintendo's trademarks. It always turns out the same way.

i disagree w the latter, the re-use of sprites and gameplay style was key to the amount of time it took to make. imagine if they had to do all art from scratch it would have added way more dev time. if they had to change physics to be different, that would have altered the game. i'm fine with it. they were smart, they worked on it mostly in secret, then dropped it when it was all done. once it's done, you can't deleted it. contrast this to years long projects of half baked ideas riffing on Nintendo IPs and getting free publicity for the devs. AM2R guy didn't need free publicity, he wasn't using Nintendo IP to get in the news. he made an amazing game without using it to hype his ego and then dropped it when it was done. this is the right way to do it.

IMO Nintendo is correct in shutting down people that are just exploiting them for personal gain. if you have a project to do, do it, nobody it stopping you. if you draw attention to yourself, you're an idiot who needed to learn this lesson sooner rather than later, before it would cost you real money.
 
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Shin

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I didn't read all that, but I assume it's about the fan made game that uses Nintendo pipes, trees and the likes.
If that's the case then I believe they are required by law to protect their IP or they'll lose any right to do so down the road.
 
D

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Hearing that from one of most drama, SJW, bullshit gaming sites is something

Nah, being anti-corporate/super "consumer friendly" is a part of that whole schtick. Though one of the parts I agree with in cases like this (parts of it, some go to far and try to make money with other's IP). But there are certainly more PR friendly ways they can handle a lot of this. Like AM2R was great. They should have just hired the dude, give him a small team and a budget to polish it up and have released it on the e-Shop. It wouldn't have hurt sales of the very different re-make they were doing (I don't know where that was in development at the time AM2R first hit).
 
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Kokonoe

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If fangames are free no company should take it down unless it's like that shitty PETA one for Pokemon "Black and Blue" lmao.
 

zenspider

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These games are tribute, not competition.

Ummm... Nintendo is the number 2 manager of creative IP on Earth. They understand what is and isn't "competition". Stay in your lane Kotaku.
 
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Punished Miku

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If fangames are free no company should take it down unless it's like that shitty PETA one for Pokemon "Black and Blue" lmao.
Even then, it's a fine line. It does still impact the value of their IPs if people can play 8 bit Mario games made by fans free anytime.

Literally just yesterday, they released Super Mario Maker 2. The first one sold millions of copies. They turned what you're talking about as a tribute into tens of millions of dollars.
 
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Kokonoe

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Even then, it's a fine line. It does still impact the value of their IPs if people can play 8 bit Mario games made by fans free anytime.

Literally just yesterday, they released Super Mario Maker 2. The first one sold millions of copies. They turned what you're talking about as a tribute into tens of millions of dollars.
Hmm I disagree. I think people wont consider fangames a replacement and will still buy.

I've not seen any data that fangames caused lower sales.
 

Omeggos

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No fucking shit they stamped a lawsuit claim on that mario kart service, on top of the fact it was straight up plagarism, if something had happened (like someone getting hurt) it would likely lead back to nintendo and they aren't even directly involved.
 

near

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I don't get the issue here to be fair. Nintendo like most major companies will protect their properties and represent IPs the way they see fit. It's hard for me to be sympathetic towards fans who are knowingly violating copyright laws. They know the risks involved before they start these types of projects. Just because they're fans doesn't entitle them to anything. Kotaku writing a hyperbolic article like this is just typical of them.
 

cartman414

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nah, they are doing exactly what they're supposed to. No other company knows how to protect, curate, and nurture their IPs better than Nintendo. They have the most recognizable and valuable IPs in video gaming. After all these years, Mario, Zelda, Metroid, are all still as loved as ever. Platformers are barely even a viable genre now, and Mario is still as valuable as ever.

In contrast, look at Sonic. The games were more experimental, with less quality control. Anything goes really. Sometimes you have a hedgehog kissing a girl, sometimes, you have a werehog. Then you have games with low budget investment that don't turn out so well. And here we are. Sonic as an IP as treated like toilet paper.

In reality, everyone with an IP they want to last should learn from Nintendo. They have managed to maintain IP value longer than anyone else in the entire industry. They are clearly doing something right.

Any fan game that puts in the effort to make a whole functioning video game can also make up their own characters. There is literally no excuse. But fan game makers don't want to make their own IP because everyone will ignore them. They want to steal some attention for their game by relying on how recognizable, loved and popular Nintendo IPs are. They are stealing the value of Nintendo IPs to get attention for their game.

I'll never forget all the people defending AM2R, while Nintendo was literally investing in making the exact same game on 3DS. And people still didn't realize how unjustified it was.

Except it wasn't the "exact same game". I respected the added areas, but MercurySteam was the wrong company. QTE takedown moves my ass, especially in a 2d Metroid.

Nintendo is my favorite company, but that doesn't mean they always have the best take on their franchises. That one Mario fangame from the Sonic fanfest had an artstyle I'd prefer to the NSMB one.
 

MagnesG

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Except it wasn't the "exact same game". I respected the added areas, but MercurySteam was the wrong company. QTE takedown moves my ass, especially in a 2d Metroid.

Nintendo is my favorite company, but that doesn't mean they always have the best take on their franchises. That one Mario fangame from the Sonic fanfest had an artstyle I'd prefer to the NSMB one.
Wut. I love all the fast paced action-y moves Samus Returns had, make sense for a 'killing monsters' entry. They could've done it the exact same way, they did it fresher and better, IMO anyway.

Both game are still awesome though.
 

cartman414

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Wut. I love all the fast paced action-y moves Samus Returns had, make sense for a 'killing monsters' entry. They could've done it the exact same way, they did it fresher and better, IMO anyway.

Both game are still awesome though.

Having to do it over 30+ times (every time you face a Metroid) was way overkill.

The combat ended up impeding the exploration loop.
 

MagnesG

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Having to do it over 30+ times (every time you face a Metroid) was way overkill.

The combat ended up impeding the exploration loop.
Didn't we did it the same in AM2R? I don't remember that much but I think it's the same.

Most of the metroids are even fast kill, 1 min tops for weakest metroid for example, it was better in SR because you're rewarded better with your skills. Late kills will make them run elsewhere. Perfect hunter scenario imo. Or maybe spam the turbo gun (I don't remember lol) if you're being lazy.
 

Mista

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Fuck off Kotaku because they shouldn’t chill. Actually that’s how you protect your IPs especially from those disgusting weebs that keeps on making those Mario fucking Peach shit. You don’t want your kids to watch that shit especially when Nintendo are known for being family-friendly.
 
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SLoWMoTIoN

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Kotaku doesn't call out Sony's bs censorship which actively affects games but they have articles like this. Fucking amazing. Meanwhile Nintedo's President says "“Nintendo seeks an objective rating from a third party before releasing its own products, or third party software,” Furukawa said. “Arbitrary choices made by platform management companies will significantly inhibit the diversity and fairness of game software.”

Fuck off Kotaku because they shouldn’t chill. Actually that’s how you protect your IPs especially from those disgusting weebs that keeps on making those Mario fucking Peach shit. You don’t want your kids to watch that shit especially when Nintendo are known for being family-friendly.

:messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop: :messenger_poop:
 
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Garnox

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I have no idea why people even start these projects they must know Nintendo's history with fan projects by now but somehow they still manage to act all shocked when Nintendo tells them to stop like they thought they were a special flower and Miyamoto would love them and directly hire them or some other insane bullshit.

I’d be willing to bet that it has to do with exposure.

You’re absolutely right and by now, creators should know that if they want to come close to bypassing all the cease and desists, they definitely shouldn’t announce it openly and advertise it.

“Hey everyone! Look at this remake I’m doing! Look, look!” *looks to see if Nintendo is looking*

I feel a lot of the time, these people only make so much of the project to “promote it” and anticipate never releasing it. However, maybe a developer or someone picked up how creative the shown work was and...well, who knows are offered a position? Maybe it’s just have internet fame for 10 minutes, hell I dunno.

That’s what my cynical ass thinks.

Edit: Read nush’s post. It is a game of who touts it first. Come to think of it, I suppose it is editorials that catch wind of these things and bring into the limelight some (most?) of the time.

In short...fuck Kotaku.
 
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It is funny that Kotaku of all places has the balls to tell Nintendo to chill. The way I remember it Gawker Kotaku's old parent company had a hard time listening to lawyers and judges and got into all sorts of good places. Whatever happend to them?

Nintendo you do you and protect your IP.

Kotaku why don't you figure out if you want to be a blog site or a news source and perhaps push your material to that choice.
 

DansDans

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Here's an idea then Kotaku, stop writing about the fan games until AFTER they have been released. No. Clicks and fan cred are more important to you and now you get to shit on Nintendo even though you are the ones shining a fucking spotlight on fan made games.

Not only that, but the articles they write always say “We reached out to NIntendo, but no comment”

So they’re complaining about Nintendo blocking games they write stories about , but they don’t realise they’re actually the key cause of the problem. Time to “fuck right off” Kotaku (that’s was JS would say, right?)
 

VertigoOA

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“Spider-man shouldn’t work with cops”


Ahahahahahahhahhahahhahahhahahhahahhah


Ahahahahhahahahhahahhahahahhahahah


Ahahahahahahahhahgahahhahahahahha
 
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zenspider

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Even then, it's a fine line. It does still impact the value of their IPs if people can play 8 bit Mario games made by fans free anytime.

Literally just yesterday, they released Super Mario Maker 2. The first one sold millions of copies. They turned what you're talking about as a tribute into tens of millions of dollars.

Great illustration of the point.
 
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MagnesG

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Once in a while they need money for those clicks. I'm sure they realized those articles are becoming the laughingstocks of the internet.
 
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So if I get a domain called "Kotaku GO!" and mimic Kotaku's layout and use a script to mimic their content and authors with minor differences then their lawyers will be cool with it?

Good to know.
 

Danny Dudekisser

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I feel like Kotaku, apart from knowing little to nothing about copyright law, refuses to acknowledge that Nintendo gets to do whatever they want with their IP. It's theirs.
 

Elder Legend

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Oh I forgot to say 1 more thing in my original fuck you post to Kotaku and it won't let me edit it. So here you go.

Jason Scherier if you are reading this. Fuck you too :)
 

HeresJohnny

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Lawyers being lectured by game journalists lol. Two of the lowest forms of life battling it out for which occupies a lower rung on the Asshole Ladder (hint: I'm rooting for the lawyers).