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YouTuber fought back against Nintendo DMCA notice and won

A hot potato: Nintendo is so hawkish about its IPs that whenever we report on someone doing something cool with, let’s say, Mario Bros, we almost always include an obligatory, “Let’s see how long Nintendo lawyers allow this to remain online” sidenote. Most of the time, it doesn’t take long, and that’s the end of it, but not this time.

Last October, video-gaming history channel DidYouKnowGaming (DYKG) posted a 20-minute documentary on a formerly unknown and unpublished Nintendo DS game, Heroes of Hyrule. As the name connotes, it was a Zelda spinoff planned for Nintendo’s popular portable. The video remained on YouTube for nearly 90 days before DYKG received a copyright warning and automatically removed it from public view on December 28.

Channel operator Shane Gill said the copyright strike accused him of using “unauthorized material” in his video. One can assume it was referring to the 22-page pitch document that DYKG obtained legally from former Retro employees. Gill maintains that he used the material for journalistic purposes and adhered to the Fair Use Doctrine. So he filed a counterclaim with YouTube saying as much.

Gill claims that Nintendo tried scrubbing the video because it didn’t like what his research uncovered. However, in Nintendo’s defense, the content is close to 90-percent copyrighted material, including entire pages of text from the pitch document. It’s not an open-and-shut fair use case. However, the tone and purpose of the mini documentary is clearly for archiving history, so it’s not cut-and-dry in Nintendo’s favor either.

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In any case, per its copyright policy, YouTube automatically reinstates a video if the content creator files a counterclaim and the rights holder does not bring a lawsuit within 10 working days. So Gill held his breath for two weeks waiting to get served. Nintendo took no further action, so the video is now back online.

Even though Gill never received a summons or other notice from Nintendo, that does not leave him in the clear. The company’s legal team can still take action against the content since the statute of limitations on copyright claims is three years. So we could hear from Nintendo again on this matter sometime down the road.

In the meantime, you should watch DYKG’s video (above) while it remains online. It’s a well-done piece for those interested in retro gaming or Nintendo history. For those who would rather have the TL;DR version, keep reading.

Metroid Prime developer Retro Studios pitched Heroes of Hyrule in 2004, the same year the Nintendo DS made its debut. Retro intended it to be a strategy game similar to Final Fantasy Tactics. The team sent the pitch to Nintendo Software Planning and Development, which flatly rejected the idea. The SPD heads didn’t even give them a reason for not going forward.

“We sent it over to SPD and got an immediate ‘no, you’re not doing that.’ To this day, I do not know why,” former Retro game designer Paul Tozour told DYKG in an interview. “They just didn’t seem to have any interest in that gameplay concept, which is too bad. It was a really solid concept and had the potential to be something great.”

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Image credit: BCC Hardware



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