Not all suits but threatened suits. Nintendo claimed ownership of world maps in platform games ala Super Mario 3 and Super Mario World. If you were making a game that had one in the early 90s and you were shipping in Nintendo you got a letter that in so many words said, "Change your game or get sued AND lose your permission to publish on NES/SNES/Gameboy"
Nintendo also claimed a patent on showing a ghost image of your previous race (the ghost car in Mario Kart)
Game companies do this all the time. Namco had a patent on the idea of "a minigame playable during a loading screen". Splatoon on the Wii U had a minigame you could play while waiting, but as it was during the multiplayer matchmaking process, not loading, it avoided the patent.
But there is no IP in the gaming industry more vigorously defended than Tetris. The Tetris Company LLC has:
* trademarks on the name Tetris, the wordmark, and the word "tetrimino" to refer to the pieces, of course
* trade dress rights on otherwise generic elements, such as the shape of the tetromino pieces themselves and the Russian folk song "Korobeiniki", when used in video games
* copyright on the concept of "a video game where tetromino pieces fall and you must arrange them to make lines". You'd think that this element would not be copyrightable, but Atari v. Philips, which concerned Pac-Man and clones thereof, established that a video game is copyrightable as a form of audiovisual performance, not just program code, which means that if a game looks and behaves enough like a copyrighted game such as Tetris ("substantial similarity"), it can be infringing. And it's near-impossible to make a falling-tetromino puzzle game without making it look and behave like Tetris. Henk and Alexey have retained some of the best lawyers American capitalism can buy, and they've successfully litigated copyright actions against cloners of Tetris and have had "Tetris clone" material seized at the border on copyright grounds.
> Namco had a patent on the idea of "a minigame playable during a loading screen"
Patent issued in 1998, yet there was prior art dating back to the C64 era - I remember 'invade-a-load', where you could play a Space Invaders clone while a larger game loaded from tape.
> nd it's near-impossible to make a falling-tetromino puzzle game without making it look and behave like Tetris.
What's more is that you cannot release a Tetris game if you follow the exact gameplay specification the Tetris Company mandates. And those specification prevent a whole range of gameplay, leading to stagnating game design and the impossibility to play some higher difficulty style of Tetris.
It's as if the First Person Company LLC mandated a Halo style floating jump with regenerating shield. There would be no classic Quake and the Doom revival series (2016, 2020, 2025) wouldn't be able to center its gameplay on agression (or at least, it would feel very weird).
> Namco had a patent on the idea of "a minigame playable during a loading screen".
When does that date from?
Because I remember playing "Invade-a-load" on the C64 in the 80s, while waiting for (I think) Slimey's Mine to load off tape. It was fun enough that sometimes I would stop the tape and just play space invaders for a while.
"In 1995, Yoichi Hayashi of Namco Ltd. invented a variant of the Invade-a-Load technique for use with optical disc based platforms such as PlayStation and applied for a patent. U.S. patent 5,718,632 was granted in February 1998 and assigned to Namco despite the Invade-a-Load prior art."
Hey, I guess that means...
Edit again: got my timelines wrong, 1995 was 30 years ago, this thing is long-expired. Ugh, I am old...)
Spore (C64) also had that and was even a year earlier than Slimey's Mine. So even multiple instances of prior art are not a blocker towards getting a patent...
Google AI Studio by mistake let me generate this image of mario hanged, I know it was by mistake because further attempts always throwed unspecific legal reasons, even if nothing that could be perceived as violent was included, I think I am gonna put it on a t-shirt soon, if for any reason someone here wants it here it is: https://i.imgur.com/j4ebG2D.png
I think this falls under the fair use doctrine for being a satiric piece (says "nintendont" instead of nintendo) but you never know these days.
As the link shows, if you would put it on a t-shirt, you can absolutely expect to hear from Nintendo's lawyers, so the question will just be whether you have the time to put up a fight.
Oh, Nintendo can't technically win a lawsuit against you if you make something for personal use, but they absolutely can and will try and ruin you financially before it sees a courtroom.
"Nintendo has filed a lawsuit against Pocketpair, the developer of Palworld, alleging patent infringement related to game mechanics similar to those in Pokémon games."
Sony should have been mentioned in this description. Last I heard, they've been backing Palworld, in an attempt to get a lucrative not-Pokemon on their platform https://www.ign.com/articles/palworld-dev-signs-deal-with-so... It's an interesting proxy war
This doesn't seem exhaustive though I guess I'd be super impressed if it were. For example I watched a pokemon dataset get taken down then go back up under a new name a couple times from huggingface sometime in 2023-24, fairly certain they were getting c&d
While this page comes close, I've always wished there was a structured wiki containing information about every known instance of playable "fan" romhacks/games which have had some public release (whether in development beta or complete) but were at some point shut down by Nintendo. Of course most of Nintendo's DCMAs shovelware, but there has been some really high quality work in the past that is too easily lost to time.
There's a distinction to make: they are not only being "protective" of their IP, they are also very actively attacking the people that doesn't know legalese. Similar story with Oracle, if you need some reference to solidify what they're constantly pulling.
Didn't take a look at the others (because YouTube videos in general are a bad source) but no. 5 is outright false. This sentence is in EVERY single ToS ever and the Wii famously also displayed it before updates. Also the person being banned for "playing a used game" used a MiG Switch on their console and were active in the SwitchPirates subreddit.
And what about this is novel over how Xbox and PlayStation handle things?
Xbox has been permanently banning consoles from online, like Nintendo, for a decade and a half. Anyone remember the 2009 mega ban wave? One million Xboxes permanently banned simultaneously and Nintendo is somehow uniquely evil with the Switch 2 and we’ve never seen anything like this. Malarkey.
Although, that being said, Nintendo has been doing console bans since the 3DS. Every 3DS cart has a serial number and the server will ban consoles that happen to both be online with the same cart at the same time. Switch and Switch 2 have the same restriction. It was really only the Wii and DSi that were lax.
I suspect what really changed is that the MiG Switch exists. People just now got access to a cheap, reasonable, and most importantly, difficult to ban flashcart solution. What's going on is that people are dumping their games, selling them on, but still playing their now-illegal backups. Since those games have been dumped and are on the used market they're little time bombs that will explode and kill someone's console.
Even in the 3DS era, though, much of the piracy scene was focused on CFW and homebrew piracy apps. The thing about CFW developers is that they actually have the fear of God (or at least the feds) in their heart, so they ONLY provide enough instruction to get homebrew working. And the people providing piracy tools on top of that are part of the piracy scene, they know what gets banned, so they're all going to tell you a hundred times to NEVER. USE. PUBLIC. HEADERS. ONLINE.
But the MiG Switch people? They don't care. They just want to sell you a flashcart. Hell, Gateway (the 3DS equivalent) was run by people who shipped literal console-bricking malware to try and "protect" their flashcard against clones (ironically). The only reason this didn't become an issue on 3DS is that Gateway's precious exploit got patched and they couldn't steal exploits and tools from the CFW scene fast enough to keep the card working.
> The thing about CFW developers is that they actually have the fear of God (or at least the feds) in their heart, so they ONLY provide enough instruction to get homebrew working.
More, they're usually not interested in piracy, they're more interested in making some sprites slew around a screen to a chiptune.
I’m guessing this is just cherry picking cases that go against the mood of the community. I bet there’s a mountain of C&Ds not listed for less objectionable violations such as the Mario shovelware slop littering app stores for years.
In Spanish, we can say super shorthand for supermercado which is super market.
Costa Rica has many expats due to its retirement marketing. It’s a very easy country to reside in permanently and legally for people of any background. Mario is not that unique of a name.
Your post just shows how ignorant you can be of different cultures as well as having being very /r/hailcorporate. You can love Nintendo all you want, but it does not give them exclusivity to the name Mario.
And to state the obvious: Nintendo lost the suit, the founder named it after him self and the super has been in operation for over 50 years.
In a similar vein, Uzi Nissan won a protracted legal battle against Nissan (the car company) over nissan.com, because he'd been in business fixing import cars way before Nissan decided to drop the Datsun name.
Still wound up getting his life ruined from the legal fees, though
I submitted this post because on another thread, multiple people were telling me a company can't sue you if your identical business name or brand is operating in an unrelated industry. Supermarkets are not exactly in the gaming industry.
Mario is a name in Spanish as well as Italian (and several other languages). There are probably many Marios in Costa Rica; and yes, the supermarket owner is one.
I have never been to Costa Rica, but I know for a fact there are a lot of Mexican Marios and I doubt Costa Rican naming customs differ substantially from Mexican ones.
Nintendo has to compete in the world that English Common Law made where lawsuits are _the_ mechanism for detailing regulations, renewing ip copyrights, and establishing contract language. Furthermore *relative to other major game corps* Nintendo is a small privately-held company and can't afford to _not_ play active-defense. It sucks because our market regime sucks.
I was wrong that they're private (genuine misunderstanding lol), but by market cap they're competing with sony, microsoft, and tencent, who are all relatively-larger. Even Roblox is in the same neighborhood at 75B -- it's not like it's a juggernaut, it's legally vulnerable.
If a 100Bil+ company is legally "vulnerable", what would you say to the average person on that list? An iron fortress in terms of vulnerability, perhaps?
"Oh this company is smaller than Microsoft and tencent, it's so vulnerable!" I genuinely don't know if you're just a corpo lover or a Nintendo PR person. At 110B, that's more than the GDP of Oman or Luxembourg or Lithuania. And you call a company that size
> "it's not like it's a juggernaut, it's legally vulnerable"
So, if you're wondering what he means by "English Common Law", let me answer your confusion with another question: why doesn't Japan have Fair Use? Well, the answer's simple: they can't, because judges aren't allowed to legislate from the bench over there. In civil law countries, the law is the law, full stop; judges can't add onto it in any meaningful way. And Fair Use is not a meaningful concept sans that ability.
In Japan, if we want an exception to copyright for, say, training AI; we write a law that says "training AI is not an infringement of copyright". Simple, and straight to the point. In America we have tens of very expensive lawsuits just to bring the question to a judge that will probably rule the same way as the TDM exceptions in EU and Japanese law. The only difference is that a bunch of lawyers get richer and the courts get to feel important.
The ultimate effect on plaintiffs is that novel uses of copyrighted material become "sue-it-or-lose-it". If those authors want to retain the right to demand licensing fees for AI training, they have to sue OpenAI now, just to get it on the books that training is derivative, not transformative. If they wait until 10 years out it's already become an established norm and no judge will disrupt it.
So in Japan, Nintendo can afford to leave certain things in the grey area, unless they actually want it gone. In America, not so much. That being said, it probably has less bearing on Nintendo's actions as one might think from how I described it. Because novel uses of copyrighted material are, well, novel. They don't happen all that often.
Not all suits but threatened suits. Nintendo claimed ownership of world maps in platform games ala Super Mario 3 and Super Mario World. If you were making a game that had one in the early 90s and you were shipping in Nintendo you got a letter that in so many words said, "Change your game or get sued AND lose your permission to publish on NES/SNES/Gameboy"
Nintendo also claimed a patent on showing a ghost image of your previous race (the ghost car in Mario Kart)
Game companies do this all the time. Namco had a patent on the idea of "a minigame playable during a loading screen". Splatoon on the Wii U had a minigame you could play while waiting, but as it was during the multiplayer matchmaking process, not loading, it avoided the patent.
But there is no IP in the gaming industry more vigorously defended than Tetris. The Tetris Company LLC has:
* trademarks on the name Tetris, the wordmark, and the word "tetrimino" to refer to the pieces, of course
* trade dress rights on otherwise generic elements, such as the shape of the tetromino pieces themselves and the Russian folk song "Korobeiniki", when used in video games
* copyright on the concept of "a video game where tetromino pieces fall and you must arrange them to make lines". You'd think that this element would not be copyrightable, but Atari v. Philips, which concerned Pac-Man and clones thereof, established that a video game is copyrightable as a form of audiovisual performance, not just program code, which means that if a game looks and behaves enough like a copyrighted game such as Tetris ("substantial similarity"), it can be infringing. And it's near-impossible to make a falling-tetromino puzzle game without making it look and behave like Tetris. Henk and Alexey have retained some of the best lawyers American capitalism can buy, and they've successfully litigated copyright actions against cloners of Tetris and have had "Tetris clone" material seized at the border on copyright grounds.
This is also why most of the innovation in Tetris comes from the indie scene. See for example tetrio, or my own game Pandora's Blocks.
We all know that if TTC were to sue any of us, they'd be likely to lose their trademarks outright. Which is also why they haven't.
> Namco had a patent on the idea of "a minigame playable during a loading screen"
Patent issued in 1998, yet there was prior art dating back to the C64 era - I remember 'invade-a-load', where you could play a Space Invaders clone while a larger game loaded from tape.
> nd it's near-impossible to make a falling-tetromino puzzle game without making it look and behave like Tetris.
What's more is that you cannot release a Tetris game if you follow the exact gameplay specification the Tetris Company mandates. And those specification prevent a whole range of gameplay, leading to stagnating game design and the impossibility to play some higher difficulty style of Tetris.
It's as if the First Person Company LLC mandated a Halo style floating jump with regenerating shield. There would be no classic Quake and the Doom revival series (2016, 2020, 2025) wouldn't be able to center its gameplay on agression (or at least, it would feel very weird).
> Namco had a patent on the idea of "a minigame playable during a loading screen".
When does that date from?
Because I remember playing "Invade-a-load" on the C64 in the 80s, while waiting for (I think) Slimey's Mine to load off tape. It was fun enough that sometimes I would stop the tape and just play space invaders for a while.
(edit - ah, and there it is, at the bottom of the fast-loader article on wikipedia: https://en.wikipedia.org/wiki/Fast_loader
"In 1995, Yoichi Hayashi of Namco Ltd. invented a variant of the Invade-a-Load technique for use with optical disc based platforms such as PlayStation and applied for a patent. U.S. patent 5,718,632 was granted in February 1998 and assigned to Namco despite the Invade-a-Load prior art."
Hey, I guess that means...
Edit again: got my timelines wrong, 1995 was 30 years ago, this thing is long-expired. Ugh, I am old...)
Spore (C64) also had that and was even a year earlier than Slimey's Mine. So even multiple instances of prior art are not a blocker towards getting a patent...
>not loading, it avoided the patent.
The patent also expires a few months after the release of the game.
And now they've licensed at least the mobile game IP to a free-to-play vendor that's loaded up Tetris with gambling and ads.
Google AI Studio by mistake let me generate this image of mario hanged, I know it was by mistake because further attempts always throwed unspecific legal reasons, even if nothing that could be perceived as violent was included, I think I am gonna put it on a t-shirt soon, if for any reason someone here wants it here it is: https://i.imgur.com/j4ebG2D.png
I think this falls under the fair use doctrine for being a satiric piece (says "nintendont" instead of nintendo) but you never know these days.
As the link shows, if you would put it on a t-shirt, you can absolutely expect to hear from Nintendo's lawyers, so the question will just be whether you have the time to put up a fight.
Only teally if the t-shirt is sold online. There are many nintendo trademarks related stuff sold on flea markets.
And Nintendo cannot sue you if you are making the t-shirt for your own personal use.
But if you show it to people, it's not personal use.
If you make a rip-off of Star Wars, OK. Now show it to others.
Same with a t-shirt.
Of course, a lawsuit has to do with damages... what is the damage of a t-shirt 6 people saw?
But if you wear it on a TED talk?
Oh, Nintendo can't technically win a lawsuit against you if you make something for personal use, but they absolutely can and will try and ruin you financially before it sees a courtroom.
Somehow expected to see way more cases given the page covers even the ancient ones (1989).
Some of the cases are so ridiculously evil, I'm beginning to think they have black marketing division that mostly consists of lawyers.
"Nintendo has filed a lawsuit against Pocketpair, the developer of Palworld, alleging patent infringement related to game mechanics similar to those in Pokémon games."
Sony should have been mentioned in this description. Last I heard, they've been backing Palworld, in an attempt to get a lucrative not-Pokemon on their platform https://www.ign.com/articles/palworld-dev-signs-deal-with-so... It's an interesting proxy war
This doesn't seem exhaustive though I guess I'd be super impressed if it were. For example I watched a pokemon dataset get taken down then go back up under a new name a couple times from huggingface sometime in 2023-24, fairly certain they were getting c&d
While this page comes close, I've always wished there was a structured wiki containing information about every known instance of playable "fan" romhacks/games which have had some public release (whether in development beta or complete) but were at some point shut down by Nintendo. Of course most of Nintendo's DCMAs shovelware, but there has been some really high quality work in the past that is too easily lost to time.
I didn’t realize Citra had been sued by Nintendo. This site says it shut down but it looks like you can still download it.
I’m surprised that litigation didn’t make the front page of Hacker News when it happened.
Didn't they have shared devs/infrastructure with Yuzu ? I think it was both at once.
Yes, Tropic Haze LLC was behind Yuzu and Citra and Yuzu is a fork of Citra. The Switch' OS is derived from the 3DS' OS.
This really sucks. I can see why they are protective of the IP, but some fan games seems entirely harmless as long as it's not being monetized.
> I can see why they are protective of the IP...
There's a distinction to make: they are not only being "protective" of their IP, they are also very actively attacking the people that doesn't know legalese. Similar story with Oracle, if you need some reference to solidify what they're constantly pulling.
A nice sequel to https://killedbygoogle.com/
I expected to see way more cases considering Nintendo's reputation. Are there cases missing?
This list is missing a few things it seems yes.
So you are saying what is listed there currently doesn't warrant that reputation?
The page is a little too red.
Are we allowed to call Nintendo the big N now? Asking for a friend.
> Are we allowed to call Nintendo the big N now?
You were; almost always, actually.
Maybe we can refer to it as NOTMANGA
To also include Oracle and Tesla
Isn’t Tetris notably missing from this list?
The Tetris Company isn't the same as Nintendo.
> April 2024
>Nintendo related content removed from the GMOD Steam Workshop
>Nintendo sent out a DMCA notice to Facepunch, forcing Garry to remove years of user-created addons related to Nintendo from the Steam Workshop.
Should have just kept addons as files you drag and drop into your gmod folder
impossible to read.
Needs JS just to display the list too. Bad design all around!
See Also:
Sacrifices to the Church of Nintendo [1], "Currently at Nintendo" [2], Attorney to Nintendo: WTF? [3], Nintendo tries a DMCA and fails [4]
as well as the various deluges of Switch 2 bans for used games[5].
[1]https://www.youtube.com/watch?v=xgKY9hmbfgo [2] https://youtu.be/wfBEj9BW_ok [3]https://www.youtube.com/watch?v=lUce6irE3H0 [4] https://www.youtube.com/watch?v=J6gtmZI8oUU [5] https://www.youtube.com/shorts/scs5JU7s1hM?feature=share
Didn't take a look at the others (because YouTube videos in general are a bad source) but no. 5 is outright false. This sentence is in EVERY single ToS ever and the Wii famously also displayed it before updates. Also the person being banned for "playing a used game" used a MiG Switch on their console and were active in the SwitchPirates subreddit.
And what about this is novel over how Xbox and PlayStation handle things?
Xbox has been permanently banning consoles from online, like Nintendo, for a decade and a half. Anyone remember the 2009 mega ban wave? One million Xboxes permanently banned simultaneously and Nintendo is somehow uniquely evil with the Switch 2 and we’ve never seen anything like this. Malarkey.
We got used to Nintendo being lax with security.
Although, that being said, Nintendo has been doing console bans since the 3DS. Every 3DS cart has a serial number and the server will ban consoles that happen to both be online with the same cart at the same time. Switch and Switch 2 have the same restriction. It was really only the Wii and DSi that were lax.
I suspect what really changed is that the MiG Switch exists. People just now got access to a cheap, reasonable, and most importantly, difficult to ban flashcart solution. What's going on is that people are dumping their games, selling them on, but still playing their now-illegal backups. Since those games have been dumped and are on the used market they're little time bombs that will explode and kill someone's console.
Even in the 3DS era, though, much of the piracy scene was focused on CFW and homebrew piracy apps. The thing about CFW developers is that they actually have the fear of God (or at least the feds) in their heart, so they ONLY provide enough instruction to get homebrew working. And the people providing piracy tools on top of that are part of the piracy scene, they know what gets banned, so they're all going to tell you a hundred times to NEVER. USE. PUBLIC. HEADERS. ONLINE.
But the MiG Switch people? They don't care. They just want to sell you a flashcart. Hell, Gateway (the 3DS equivalent) was run by people who shipped literal console-bricking malware to try and "protect" their flashcard against clones (ironically). The only reason this didn't become an issue on 3DS is that Gateway's precious exploit got patched and they couldn't steal exploits and tools from the CFW scene fast enough to keep the card working.
> The thing about CFW developers is that they actually have the fear of God (or at least the feds) in their heart, so they ONLY provide enough instruction to get homebrew working.
More, they're usually not interested in piracy, they're more interested in making some sprites slew around a screen to a chiptune.
Far more "nerd cred" vs "criminal expectation"
I’m guessing this is just cherry picking cases that go against the mood of the community. I bet there’s a mountain of C&Ds not listed for less objectionable violations such as the Mario shovelware slop littering app stores for years.
Ladies and gentlemen of the jury, just think about all the people my client DIDN'T murder!
The point is that it’s not personal. They’re just doing what they’re obligated to do.
Nintendo is very sue happy, but the newest case of the supermarket named "Super Mario" is obviously infringing on their IP.
Unless the owner's name is Mario, but that would be a rare first name in Costa Rica.
In Spanish, we can say super shorthand for supermercado which is super market.
Costa Rica has many expats due to its retirement marketing. It’s a very easy country to reside in permanently and legally for people of any background. Mario is not that unique of a name.
Your post just shows how ignorant you can be of different cultures as well as having being very /r/hailcorporate. You can love Nintendo all you want, but it does not give them exclusivity to the name Mario.
And to state the obvious: Nintendo lost the suit, the founder named it after him self and the super has been in operation for over 50 years.
Don José Mario Alfaro González is the owners name.
The business has been named Super Mario for 52 years
In a similar vein, Uzi Nissan won a protracted legal battle against Nissan (the car company) over nissan.com, because he'd been in business fixing import cars way before Nissan decided to drop the Datsun name.
Still wound up getting his life ruined from the legal fees, though
I submitted this post because on another thread, multiple people were telling me a company can't sue you if your identical business name or brand is operating in an unrelated industry. Supermarkets are not exactly in the gaming industry.
Mario is a name in Spanish as well as Italian (and several other languages). There are probably many Marios in Costa Rica; and yes, the supermarket owner is one.
I have never been to Costa Rica, but I know for a fact there are a lot of Mexican Marios and I doubt Costa Rican naming customs differ substantially from Mexican ones.
Nintendo has to compete in the world that English Common Law made where lawsuits are _the_ mechanism for detailing regulations, renewing ip copyrights, and establishing contract language. Furthermore *relative to other major game corps* Nintendo is a small privately-held company and can't afford to _not_ play active-defense. It sucks because our market regime sucks.
>Nintendo is a small privately-held company
Nintendo is a TSE-listed public company with a market cap of about USD 110 billion.
I was wrong that they're private (genuine misunderstanding lol), but by market cap they're competing with sony, microsoft, and tencent, who are all relatively-larger. Even Roblox is in the same neighborhood at 75B -- it's not like it's a juggernaut, it's legally vulnerable.
If a 100Bil+ company is legally "vulnerable", what would you say to the average person on that list? An iron fortress in terms of vulnerability, perhaps?
"Oh this company is smaller than Microsoft and tencent, it's so vulnerable!" I genuinely don't know if you're just a corpo lover or a Nintendo PR person. At 110B, that's more than the GDP of Oman or Luxembourg or Lithuania. And you call a company that size
> "it's not like it's a juggernaut, it's legally vulnerable"
???
Nintendo is literally about the same size as Dell or Foxconn, neither of which anyone would describe as small.
So, if you're wondering what he means by "English Common Law", let me answer your confusion with another question: why doesn't Japan have Fair Use? Well, the answer's simple: they can't, because judges aren't allowed to legislate from the bench over there. In civil law countries, the law is the law, full stop; judges can't add onto it in any meaningful way. And Fair Use is not a meaningful concept sans that ability.
In Japan, if we want an exception to copyright for, say, training AI; we write a law that says "training AI is not an infringement of copyright". Simple, and straight to the point. In America we have tens of very expensive lawsuits just to bring the question to a judge that will probably rule the same way as the TDM exceptions in EU and Japanese law. The only difference is that a bunch of lawyers get richer and the courts get to feel important.
The ultimate effect on plaintiffs is that novel uses of copyrighted material become "sue-it-or-lose-it". If those authors want to retain the right to demand licensing fees for AI training, they have to sue OpenAI now, just to get it on the books that training is derivative, not transformative. If they wait until 10 years out it's already become an established norm and no judge will disrupt it.
So in Japan, Nintendo can afford to leave certain things in the grey area, unless they actually want it gone. In America, not so much. That being said, it probably has less bearing on Nintendo's actions as one might think from how I described it. Because novel uses of copyrighted material are, well, novel. They don't happen all that often.