Nintendo Follow-Up

I would like to address the various game blogs that have reported on this whole PokeBeach / Nintendo situation. At first supporting us, many of these blogs have recently updated their news stories to state that we posted images from roms of the games, which, according to their theorizing, is why Nintendo reacted so strongly to our news coverage. This is absolutely not true, and a number of these blogs have not responded to our e-mail requests to correct this information or have completely misinterpreted our comments. Furthermore, most of these blogs have never even spoken with us, relying rather unprofessionally on their website’s user comments, posts from even more uninformed forum users, and news stories posted on other misinformed blogs. So let me give it to you straight: at no time were images from roms posted on this website. All in-game photos from this news story and this news story (both posted Thursday), as stated in their opening paragraphs, came from 2ch’s Japanese players who had legitimate copies of the games. These were the posts that the Nintendo lawyer targeted for image eradication over the phone. If you look at this front page, no images we have posted over this past week were scanned or photographed by us. We merely collected photos from across the Internet and posted them, as did many other fan websites. The lawyer specifically told us over the phone that Nintendo did not want these photo collections to be posted on larger Pokemon websites and seen by fans – and still does not want us to have any images of the games up – despite the release of the games. This is the egregious heart of the issue.

As with any major situation, scandal, or UFO sighting, there is always something “fishy” that people will pick out and explode into something that is nothing (human nature). It seems in attempting to understand why Nintendo would issue what appeared to be such an unreasonable cease and desist, many fans looked to our limited rom use as the source of their ridiculous actions. To go over this past week, an unstable rom of the game was released Friday afternoon (Saturday in Japan) after many Japanese and foreigners had already received their games in the mail and after the aforementioned photos had already been posted. For convenience, and because our physical copies had not yet arrived, we played the rom for a while to report on the game’s storyline. However, the developers made it so that Pokemon would not level-up if the game was played as a rom, so we didn’t even get 15 minutes into the story. One of us received our Pokemon White in the mail almost immediately after and we caught up and continued our coverage with the real copy, using webcams and Skype to watch, describe, translate, and post the contents of this news story as a team. Again, no images from a rom were ever posted. Furthermore, and most importantly, the Nintendo lawyer never mentioned, insinuated, or discussed the reason for their demands as related to rom use even though the news story posted on that day, which he reviewed over the phone, stated “We just received copies of Pokemon Black and White (the roms, that is – our real copies are still being shipped).” His only concern was for our images – he stated this multiple times. To further prove this, two other sites that were targeted by Nintendo never even said a word about using a rom, so this obviously was not the reason for these cease and desist orders, not to mention that his original letter specifically targeted the images. Bottom line: this whole rom stuff has nothing to do with anything that has happened. It was always about the images. The cease and desist order was probably a few days in the making as well, especially since the lawyer stated he was working on this issue with the Nintendo folks in Washington and their brothers back in Japan.

And as for the people saying this is all fake, please stop. You don’t know everything we know. You haven’t seen the documents we’ve seen. You haven’t talked to the lawyer we have. You don’t have the capacity to look into anything – you don’t even have the lawyer’s name or other information we’ve been sent. You don’t have the right to claim this is fake when you don’t have access to the most basic information. The lawyer is real and so is the cease and desist order – we have confirmed it through various indisputable means as I have said until I’m blue in the face on various message boards. So please accept it and stop derailing the issue with “lol its fake grammer errors.”

After I replaced all of our Black and White images with Ditto and made fun of Nintendo’s ridiculous actions toward myself and other fan websites by using the Soup Nazi from Seinfeld, the lawyer sent me this:

…We note that you have removed the infringing content from your website so that it is no longer publicly accessible. We have accordingly contacted your domain registrar to rescind the copyright takedown notice issued earlier this weekend. [WPM Note: This made my blood boil. They actually were going to take away my .com over images of games that so many people already had in their hands? Guess we would have to register

This matter accordingly appears to be concluded, provided that you refrain from posting any content that infringes Nintendo’s copyright and otherwise avoid violating Nintendo’s intellectual property rights. [Yeah that’s not conveniently ambiguous.] We trust that, going forward, you will post only authorized images from Nintendo’s games, follow the applicable guidelines governing the use of such images, and otherwise limit your use of Nintendo’s copyrighted material to fair use. The volume of unauthorized material posted on your site previously far exceeded the limits of fair use, which necessitated this action. [Guess you didn’t see our HGSS coverage. :D]

We appreciate your responsiveness in addressing this serious legal matter. This letter is without prejudice to any and all rights or remedies available to Nintendo of America Inc., its parent or affiliated companies, all of which are expressly reserved. [I wuv you too Mr. Lawyer.]

So it seems this really is just about them being paranoid about Black and White images being posted for the general public to see (as the lawyer stated in our phone conversation and as his original e-mail stated). They probably do not want the games to be spoiled, but I guess they don’t realize that you can’t keep us from knowing about new games in this day and age (after all, what’s known in Japan is known here almost instantly). This is the new age – an age of networking, information spread, and instant access. You can’t force us to avoid spoilers when there’s this little thing called the Internet that connects us all together, especially when there’s such a huge gap between the release of the games in Japan and their release worldwide. Maybe you could try to do a simultaneous release… did you ever think of that, Nintendo? Once the games are released in Japan EVERYONE knows EVERYTHING about them EVERYWHERE anyway. Why not try to do a simultaneous release? People like Bangiras have the skills to translate the whole game in a day or two. Why can’t you?

While Nintendo apparently thinks it can stop people from being spoiled, we obviously have to comply with them (for now). Since the same content we posted is still available on a multitude of fan sites, I wanted to know why we can’t post such content too. So are we not allowed to post images of the Pokemon anymore? Did this cease and desist only apply to the actual images we posted this past week? Are we allowed to post Pokemon sprites like so many other fan sites? I e-mailed him back and asked, “… Also, when will I be able to post Pokemon sprites? All other Pokemon websites have them up. I don’t think it’s fair that myself and the other sites you targeted won’t be able to post them now.”

With regard to your below questions, be advised that Nintendo respects the right of others to make fair use of publicly-available copyrighted materials as permitted by law. However, the use of Nintendo’s unpublished copyrighted materials or other proprietary information that Nintendo has not authorized for public release is not permitted, which necessitated the actions over the weekend to protect the company’s intellectual property rights. I trust this sufficiently addresses your concerns.

Wha? Stop using lawyer speak on me! Does that mean I can or can’t post them?

I’ve outlined Nintendo’s position and provided guidance as to what is, and is not, acceptable to Nintendo. Beyond that, I cannot provide you with legal advice.

Like heck you outlined anything! So I guess I can decide whether or not I can post the sprites? And then you can send me a threatening letter if I’m wrong since you won’t answer such a basic question? Doesn’t sound like you’re saying no… So is that a yes? Too much ambiguity for me. I’m trying to figure out what I’ve done wrong / why / how to avoid it in the future and this guy sure isn’t helping! Does he even really know what’s going on?

Honestly, this entire situation has left me deeply, deeply disappointed and angry with Nintendo. I didn’t know that when Junichi Masuda signed my laptop last year that I would be dealing with this now. This is NOT how you treat your dedicated fans. Why don’t you people go after the companies that are mass-producing fake cards (that I get e-mails about like… every day) or the websites that let you download roms? I mean don’t you have anything better to do, Nintendo? I’ve dedicated myself to the Pokemon fandom for seven years and this is what I get from you people? I’ve never asked for anything in return and I don’t expect anything in return, but I never thought I would get attacked by you for promoting your own games. Do you honestly think that any of your fan sites have caused you “substantial damage?” That would be PRETTY hard to prove in court. If anything they’re the people helping keep your franchise successful – that’s just logical. And I doubt anyone would argue against that. Or is that what you’re telling us, Nintendo?