Nintendo sends a cease and desist to insider that has leaked pretty much every E3 2019 announcement

Oct 29, 2017
4,830
The whole point is that you control what you make. In this case, the announcement itself may be what's copyrighted. Putting it in terms of books and Amazon will not paint the whole picture. If I've made an album, I have the right to control how that's shared. That's my right to first publication. Giving that right to someone else is a case of Amazon and a book. So 'publishing' the name of a copyright work infringes that right the author has. The substansiality of what is revealed would be relevant in a fair use defense. Of course, a lot of this would come down to the author's interpretation of the substansiality. Given games, it's pretty big to know that, say, a new Sim City game is being made. If you make your claim that someone shared an announcement – a copyrighted work in itself – then you can argue that the name of what's being announced is a substantial part of that work. As I understand it, publishing something before the author has decided to make it available is a compounding factor to copyright infringement, since you are infringing the copyright if it's before or after first publication.

The point is that copyright grants the author the rights to control who can do what with their work.
I suspect that the actual media trailer itself would follow under copyright law. Nintendo successfully DMCA's other reproductions of media that aren't actually the game itself.

Actually talking about the leak wouldn't. I would wonder if screenshots of a leaked trailer fall under fair use.
 

Phendrift

Member
Oct 25, 2017
14,423
Huh so gamexplain but up video about this and they mentioned that Sabi was part of their blog theory discussion for Smash Bros ultimate back in September. I watched that video back then but I didn't realize it was Sabi in that video. I checked video and sure enough, Sabi is on it:


I can see how Nintendo could easily identify Sabi in person.
So Sabi ISNT a girl?
 
Oct 29, 2017
4,830
Would it have got the same reaction if some git leaked it on Twitter?
Maybe not. Maybe. But if that spectacle is your thing then I'd suspect you probably shouldn't be watching any leaked video.

But people being excited over a game commercial is immaterial anyway.

And that's fine, but it's a weak defense for leaks.
FWIW, I'm not really defending leaks. I think the emotional hype machine behind game releases is bad and leaks are part and parcel the whole thing and can not be avoided.
 

PancakeFlip

Member
Oct 26, 2017
2,625
I’m not understanding how video game news is a trade secret outside of technology endeavors. Thats a super stretch.
 

Terra

Member
May 15, 2019
33
Well, that is another subject of discussion, companies spend a ton to keep it secret - it's a fixation with the industry. In any other entertainment industry you know about projects being made as soon as they enter production whether it's movies or music or literature.
The main reason why video games have this secrecy is because of how important marketing is in this particular industry, more so than in movies or music, which often sell based on the names of the artists and their merits. Because of how saturated the games industry is, and the fact that games tend to have longer production cycles than other mediums and a higher cost of entry for a consumer, publishers will want to market their games on their own terms, waiting until the right moment to maximize consumer interest.
Additionally, people who play games often don't comprehend how a game is actually made and the work that goes behind them. There is a disconnect of how games are actually made vs how they are perceived to be made; and publishers will also want to capitalize on the "magical" nature of their projects.
This explains why companies spend a lot of money and time to keep it secret, and why they have options in place to act when someone leaks projects and breaks their NDA.

I would just say I would not want to be in Sabi's place right now.
This. Completely this. These leaks will continue to happen because of the structural way the industry is set up. This isn’t even pro leaks, this is just not being dumb to the fact that the industry is systemically set up to just continually get rocked by leaks.
 

Terra

Member
May 15, 2019
33
"Inoffensive"? Just pick a avatar that YOU like.

....

I'm interacting with you so much because a common complaint on this site from newcomers is that it's hard for them to mesh in the community and they don't feel like they have a voice. I understand that and try to really have a good time with the new people.
Thanks for being welcoming, I really appreciate it. :) and yeah I’ll update my avatar in the future, it was just 3 am haha, didn’t want to think too hard lol
 

Mewshuji

Member
Nov 11, 2017
3,011
Alright, so my take on leaks in general, as the thread went in that direction...

The owners and higher ups of EA, Rockstar/Take-Two, Activision and the like... do you think they legitimately care from an artistic point of view if their game reveal is leaked? The answer is, of course, no, and that's evident from how they treat their workers. They care from a purely capitalistic point of view, without any consideration for the work the developer of the game put in, and when they might want to reveal the game. Maybe if a development team under those companies is lucky they get some input, but my educated guess is they just get told when the game's being revealed, and are forced to go along with it.

Obviously, if a leak could harm a development team because the publisher is so petty they might scrap the whole project or shift teams, perhaps it shouldn't be leaked. I won't debate that. But that is indeed a symptom, if a small one, of a very abusive industry, and needs to be talked about. The response to a leak should not be "well, shit, we're firing you all because ONE person let something slip". It should be "oops, well, guess the public knows now, let's try to refocus how we market". This is especially notable when well known higher-ups like, say, Randy Pitchford, let information about the games they're making slip when their publishers explicitly told them not to, but they only get a slap on the wrist at the best. It really does display how a lot of the industry sees most of its workers as cogs in the machine, and only the big names get treated as human at all.

In the end, if it weren't for the industry being a shitpile, the result of a leak should merely be the developers being disappointed they couldn't reveal their art on their terms. But that disappointment is enough, to me, as an advocate for workers' rights, to be upset, because artists should get to reveal their art on their terms. And you know, if that was the normal case, I would have revulsion for leaks. As is though, I struggle to be too upset about them, because by and large it isn't even decided on anyone in the development team or related to the development team when to reveal a game. It's mandated by the corporation they toil away for. The only reason developers would worry is because of their jobs being at stake- when they shouldn't be, and it's completely on the publishers for caring more about manufactured hype than their workers.

Like, if I'm wrong, and it's in fact industry standard (i.e., not just your personal experience in one company) that development teams as a whole get the last say on when their art is revealed, by all means, PLEASE correct me. But, as far as I can tell, it's not like that at all except for the most pedigreed dev teams or directors/producers.

Onto this in specific situation....

I do think leaking stuff you know not from the developers but from, like, Directs or conference scripts is ultimately self-serving, though, because at best you're getting info out there a week ahead of time. It's possible to, you know, wait. At least in other leaking, there's someone on the dev team who wants the public to know. Here it's just... letting impatient people get hyped early? Shrugs. I don't think lesser of people who do it, but it just seems silly to me.

That said, it's insanely creepy and stalker-ish the lawyer sought out a person who was apparently out of country and at a place with a landline they normally aren't at. That feels very skeevy to me. Like, Sabi surely knew the NORMAL legal risks, but... that just seems to be severely overstepping bounds. And it's really fucking strange it's Nintendo doing it, as it doesn't seem to match with their current corporate structure, unless something has radically changed within it since Iwata passed. It's definitely a dark mark on them, but then, they already throw their weight around way too much, to near Disney levels, threatening normal people (not other companies) without wealth to bankrupt them over the pettiest of things, so...

I’m not understanding how video game news is a trade secret outside of technology endeavors. Thats a super stretch.
I'm not sure it would actually hold up in a court of law, but I don't think the lawyer was doing anything more than intimidation akin to a C&D. Like, who wants to go to bat for a case to set precedent when there's a chance they might lose and have to pay millions of dollars they don't have to a corporation?
 

Septimius

Member
Oct 25, 2017
417
This is a clear misunderstanding of copyright law.

A specific performance (say a trailer or TV ad) falls under copyright.

Mere facts cannot, as a matter of law, be copyrighted.

Saying "X game is in development at Y company" will never be a copyright violation.
That's not really the case. Facts can be copyrighted, like an encyclopedia. Also, you're trying to blur the line by deliberately choosing a side that makes it seem unrelated to the copyright itself. Characters of GOT die. That's also a fact. It's just as much a part of the copyrighted work as the title is, or similar. That's why substanciality is one of the four factors of fair use.

The information about the copyrighted work, comes from the copyrighted work. It's also an important distinction that copyright infringement might not be illegal, given the fact that fair use is an affirmative defense.

So I absolutely uphold that copyright law gives you the express right to control what is shared with the public and when. And leaks like this is absolutely about that.
 

Septimius

Member
Oct 25, 2017
417
I suspect that the actual media trailer itself would follow under copyright law. Nintendo successfully DMCA's other reproductions of media that aren't actually the game itself.

Actually talking about the leak wouldn't. I would wonder if screenshots of a leaked trailer fall under fair use.
Talking about the leak, if we were using the leaked information in this discussion, would be transformative, so it'd have a stronger case. It is a burden for the offended party in a copyright case to consider if it was fair use, so right holders can't sue people and make a huge problem for them. That's what's preventing a lot of grey area cases. Frivolous lawsuits are really hit hard when it comes to copyrights. But just because there's precedence, doesn't mean it's legal.

You can argue it poorly I suppose.
Well, it's not really my job to argue it, but that's a venue the lawyer for this case could do. As I've stated previously, I think it's easy to establish a prima facie case. Whether or not it's ruled illegal is of course a different case.
 

Syriel

Member
Dec 13, 2017
4,925
Facts can be copyrighted
This is absolutely, 100% false. Facts cannot be copyrighted. You can copyright a particular expression of facts, but you cannot copyright facts.

There is case law on this. It is a well settled question.

This isn't even advanced copyright. This is copyright 101 level stuff.
 

Septimius

Member
Oct 25, 2017
417
This is absolutely, 100% false. Facts cannot be copyrighted. You can copyright a particular expression of facts, but you cannot copyright facts.

There is case law on this. It is a well settled question.

This isn't even advanced copyright. This is copyright 101 level stuff.
Facts. Not 'a fact'. Why are you arguing semantics rather than responding to the rest of my post?
 
Oct 27, 2017
4,669
The only reason developers would worry is because of their jobs being at stake- when they shouldn't be, and it's completely on the publishers for caring more about manufactured hype than their workers.
Can't agree. Given the reaction of people on the internet, they have plenty to worry about. Mario X Rabbids is the great case study for this. They got leaked far before it was ready to show (which still takes years of development effort) and the development team had to deal with months(?) Of people online questioning what the hell they were doing and calling it all manner of things, which was horrible for the Devs, who ended up making a damned great game.
 

Syriel

Member
Dec 13, 2017
4,925
Facts. Not 'a fact'. Why are you arguing semantics rather than responding to the rest of my post?
Because your entire argument is predicated on a misreading and/or misunderstanding of copyright law.

You cannot copyright facts. Period.

Someone who is reporting on a fact, or series of facts, cannot be accused of copyright infringement. There is no cause of action.
 

Kolibri

Member
Nov 6, 2017
486
Man, this whole thread reminds me of the time when Sakurai said there wouldn't be a story mode in Smash Bros because of leaks.

""Unfortunately, the movie scenes we worked hard to create were uploaded onto the internet." Sakurai lamented. "You can only truly wow a player the first time he sees [a cutscene]. I felt if players saw the cutscenes outside of the game, they would no longer serve as rewards for playing the game, so I've decided against having them.""
 

MushroomSamba

Member
Oct 26, 2017
233
The fact that people are treating E3 as some kind of art form where knowing what will be announced is akin to being spoiled about a movie/book ending is blowing my mind. I'm genuinely shocked about the outcry resulting from these leaks.

Like if a publisher released a teaser for an announcement (i.e., here's a week-long countdown clock for when we unveil our new game), are people really pissed if someone leaks that it's final fantasy or whatever?
 
Oct 29, 2017
4,830
Man, this whole thread reminds me of the time when Sakurai said there wouldn't be a story mode in Smash Bros because of leaks.

""Unfortunately, the movie scenes we worked hard to create were uploaded onto the internet." Sakurai lamented. "You can only truly wow a player the first time he sees [a cutscene]. I felt if players saw the cutscenes outside of the game, they would no longer serve as rewards for playing the game, so I've decided against having them.""
No one can have them because some one else watched a leaked cut scene?


Seems like a completely ridiculous conclusion to make.
 

Doomrider

Avenger
Oct 27, 2017
806
Man, this whole thread reminds me of the time when Sakurai said there wouldn't be a story mode in Smash Bros because of leaks.

""Unfortunately, the movie scenes we worked hard to create were uploaded onto the internet." Sakurai lamented. "You can only truly wow a player the first time he sees [a cutscene]. I felt if players saw the cutscenes outside of the game, they would no longer serve as rewards for playing the game, so I've decided against having them.""
This is just an extremely poor excuse considering watching those leaked cutscenes would've been an individual choice, thus still being "rewards" for those who held back on running to YT. Instead he makes the choice himself on behalf of millions of players based on a silly argument.

Always annoyed me, and I don't even play Smash.
 

Nitpicker_Red

Member
Nov 3, 2017
934
The fact that people are treating E3 as some kind of art form where knowing what will be announced is akin to being spoiled about a movie/book ending is blowing my mind. I'm genuinely shocked about the outcry resulting from these leaks.

Like if a publisher released a teaser for an announcement (i.e., here's a week-long countdown clock for when we unveil our new game), are people really pissed if someone leaks that it's final fantasy or whatever?
Spectacle performance is an art form akin to theater.
It moves people. People like to be hyped, it feels great. But like any popular art or craft, it's used there for marketing purposes.

One way to see things. Many way to see things.
 

mael

Avenger
Nov 3, 2017
6,389
Two people made that suggestion defending their opinion that leaks like Sabi are beneficial.
I would personally argue against that position.
Leaks like the ones from Sabi seems to come from someone with a direct connection to the industry.
That can be highly damaging to the individual or company involved (cf the example of the trailer company getting hosed because a stupid employee leaked promo material).
This is entirely unlike the usual Ubisoft leaks where you have employees working on unannounced material in commercial planes for no goddamn reason (or hopefully that's a controlled leak).
A project being unannounced for years is better than SquareEnix 's way of doing business with announcing a game Year-8 and then dripfeeding trailers for the next half decade.
Knowing that Square was remaking FFVII was pointless in 2017 and certainly didn't help anyone working at SE on other projects or even this project.
 

Septimius

Member
Oct 25, 2017
417
Because your entire argument is predicated on a misreading and/or misunderstanding of copyright law.

You cannot copyright facts. Period.

Someone who is reporting on a fact, or series of facts, cannot be accused of copyright infringement. There is no cause of action.
The rest of my posts says you’re trying to skew the facts of the case to fit your narrative. Could you please respond to it?
 

luffxan

Member
Oct 28, 2017
384
Cause people want to know info about things they like without having to go through the pageantry and rigmarole and other folks like to participate in their own way.
You can probably accomplish this by just waiting to read the news run downs after.
Was about to reply the same thing. There is value in some leaks sure but just saying something along the lines of "FFVIII Remake is a thing" feels unnecessary. Especially days away from a reveal and hopefully more info.

And there it is. Definitely get that vibe from their Twitter account rip
 

Syriel

Member
Dec 13, 2017
4,925
The rest of my posts says you’re trying to skew the facts of the case to fit your narrative. Could you please respond to it?
There is nothing to respond to. A filing of copyright infringement in response to someone reporting on a leak would be thrown out of court for failing to state a cause of action.

What you are trying to claim isn't supported by the law. With no cause of action, nothing else matters. There is to claim to be heard by the court.

There are ways to address leaks. A copyright claim (outside of someone, say posting a whole announce trailer) is not one of those ways.

You can always say "X developer is working on Y game" and that will never fall under copyright protection.
 

mael

Avenger
Nov 3, 2017
6,389
Man, this whole thread reminds me of the time when Sakurai said there wouldn't be a story mode in Smash Bros because of leaks.

""Unfortunately, the movie scenes we worked hard to create were uploaded onto the internet." Sakurai lamented. "You can only truly wow a player the first time he sees [a cutscene]. I felt if players saw the cutscenes outside of the game, they would no longer serve as rewards for playing the game, so I've decided against having them.""
I like Sakurai and his games but he did the leaking on JAPAN TIME every week including most of the cutscenes, kinda hard to sympathize here when he's directly responsible for the environment surrounding his game to be so prone to leaks.
 

Septimius

Member
Oct 25, 2017
417
There is nothing to respond to. A filing of copyright infringement in response to someone reporting on a leak would be thrown out of court for failing to state a cause of action.

What you are trying to claim isn't supported by the law. With no cause of action, nothing else matters. There is to claim to be heard by the court.

There are ways to address leaks. A copyright claim (outside of someone, say posting a whole announce trailer) is not one of those ways.

You can always say "X developer is working on Y game" and that will never fall under copyright protection.
Based on what? You're still completely disregarding my post. In a case of copyright infringement, the offended party has to consider whether this is done under fair use. Further, to not have the case thrown out, before anyone would have to argue for fair use, the offended party would have to establish a prima facie case. Showing they at least have the bare bones of a case.

Assuming the announcement is what's being leaked, and that the announcement can be copyrighted – which you've stated it can – then there's a copyright infringement. Using the four factors of fair use, it's easy to say a leak isn't transformative, that even the name of the project can be considered a substantial part of the copyrighted work, given its importance to the announcement. It's pretty easy to establish that prima facie. From there, of course, it's not a given that it's not fair use, but Nintendo would have a case.

Someone somewhere has gotten their hands on copyright information. Copyright is to give the author of a work the right to control who publishes it. When someone takes that right, it's a copyright issue.

The problem with your idea that this is a "fact" is that it's not a publicly known fact. It's not known, because the author has created it. Controlling the rights of disclosure and publication it is exactly the intent of copyright law. That's why I'm saying you're construing the case to fit your narrative that "it's a fact". That's why it has no basis or bearing. The facts of your work are your right to disclose the way you want.

EDIT: I mean, just look up the ongoing case of Watch Tower v Darkspilver/EFF/Reddit to see how little is needed to be an actual copyright case.
 
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Syriel

Member
Dec 13, 2017
4,925
Based on what? You're still completely disregarding my post. In a case of copyright infringement, the offended party has to consider whether this is done under fair use. Further, to not have the case thrown out, before anyone would have to argue for fair use, the offended party would have to establish a prima facie case. Showing they at least have the bare bones of a case.
There is no copyright case. Leaking the name of a game and that it exists is not copyrightable content.

Assuming the announcement is what's being leaked, and that the announcement can be copyrighted – which you've stated it can – then there's a copyright infringement.
No, a generic announcement just stating the facts of release cannot be copyrighted. A specific expression of those facts can be.

Relaying information that an unannounced game is under development = not protected by copyright.

A promo trailer for said game = protected by copyright.

Using the four factors of fair use, it's easy to say a leak isn't transformative, that even the name of the project can be considered a substantial part of the copyrighted work, given its importance to the announcement. It's pretty easy to establish that prima facie. From there, of course, it's not a given that it's not fair use, but Nintendo would have a case.
Fair use is a defense to a claim. If there is no valid cause of action, there is no need for a defense because the claim is getting thrown out.

Someone somewhere has gotten their hands on copyright information. Copyright is to give the author of a work the right to control who publishes it. When someone takes that right, it's a copyright issue.
This only applies to the work itself. Not information about the work. You seem to be confusing the two.

The problem with your idea that this is a "fact" is that it's not a publicly known fact. It's not known, because the author has created it. Controlling the rights of disclosure and publication it is exactly the intent of copyright law. That's why I'm saying you're construing the case to fit your narrative that "it's a fact". That's why it has no basis or bearing. The facts of your work are your right to disclose the way you want.
It does not matter if something is publically known or not for copyright purposes. The fact that the work exists is separate from the work. The work is protected by copyright. The information about the work is not protected by copyright.

The latter is something that you've conjured up and is not supported by case law.
 

Septimius

Member
Oct 25, 2017
417
No, a generic announcement just stating the facts of release cannot be copyrighted. A specific expression of those facts can be.

Relaying information that an unannounced game is under development = not protected by copyright.

A promo trailer for said game = protected by copyright.
The information has come from a copyrighted work. If that is the announcement trailer, or if that is the work itself is up for debate. The title of a copyrighted work is not a disparate fact from the copyrighted work. That's why you can't call your book "A Song of Ice and Fire". Or even "A Schlong of Ice and Fire" and not expected some copyright issues. It's not the fact that something is "in development" that copyrighted. It's the fact that you're using copyrighted work, as in the title.
 
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FrakEarth

Member
Oct 25, 2017
661
Liverpool, UK
This thread is getting quite large so I might have missed discussion on this point but can leaking privileged announcements be considered a kind of industrial espionage?
Are unreleased products considered a trade secret?


all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.
Not suggesting that's what Nintendo would argue, just curious if people think it would be possible to argue that leaking an announcement might cause harm to economic value, 'actual or potential'. Diminished hype due to an unmanaged information release vs a coordinated campaign so to speak.
 

Glio

Member
Oct 27, 2017
6,755
Spain
This thread is getting quite large so I might have missed discussion on this point but can leaking privileged announcements be considered a kind of industrial espionage?
Are unreleased products considered a trade secret?




Not suggesting that's what Nintendo would argue, just curious if people think it would be possible to argue that leaking an announcement might cause harm to economic value, 'actual or potential'. Diminished hype due to an unmanaged information release vs a coordinated campaign so to speak.
They can easily argue the loss of opportunity cost.
 

Syriel

Member
Dec 13, 2017
4,925
The information has come from a copyrighted work. If that is the announcement trailer, or if that is the work itself is up for debate. The title of a copyrighted work is not a disparate fact from the copyrighted work. That's why you can't call your book "A Song of Ice and Fire". Or even "A Schlong of Ice and Fire" and not expected some copyright issues. It's not the fact that something is "in development" that copyrighted. It's the fact that you're using copyrighted work.
It does not matter for the purposes of talking about the work.

Copyright can prevent someone else from naming a book "A Song of Ice and Fire." Copyright cannot prevent someone from saying that "A Song of Ice and Fire" exists, or is in production, even if it is before the official announcement.

Again, this is copyright 101.