ROM Hacking, Patches, and the legal consequences

[KillerMapper]

The only reason those games got a C&D is that they became too popular. Uranium got more than a million downloads and Prism trailer reached 1.5 million views. This also happening to the Metroid remake that became quickly very popular after its release.

So don't promote or advertise your game before it being released and debugged.

 

[Rangi]

That's the argument that was made for many years. Patches even moreso because they don't contain the original game code, just what's modified. This completely flips the idea on its head.

As far as I know the legality of patch files has never been tested in court. It's entirely possible for copyright holders to issue C&Ds against people who could win in a lawsuit—parodies, fair use, and certain other categories are protected. (I'm not a lawyer, please don't quiz me on the exact boundaries of what's okay.)

For now, since Nintendo is a well-funded company and ROM hackers are just individual teens/young adults who don't have significant money and aren't making any more from their hacks, there's little chance of anyone bothering to go to court over a fan game. Though I am curious about what the result would be.

 

[8_BIT_SUPERSAIYAN]

Personally, I I think Nintendo have shot themself in the foot. The whole c&d situation is just more Prism advertisement, and more people will play it now than if Nintendo had left it alone. I The repercussions will be bigger for the big N than for Koolboyman .
Also, woe betide whoever leaked it, but if Nintendo find out who they are.
Signed the petition from a couple of pages back, and but I doubt it'll make a difference.

 

[FL]

The only reason those games got a C&D is that they became too popular. Uranium got more than a million downloads and Prism trailer reached 1.5 million views. This also happening to the Metroid remake that became quickly very popular after its release.

So don't promote or advertise your game before it being released and debugged.

So, why games like Insurgence never got a C&D? Maybe it was ignored?

I agree with SpartaLazor and Rot8er_ConeX.

If you are making $0 profit, then Nintendo cannot prove damages in court and you even can use "Fair use" rule agains't Nintendo, but everyone fears Nintendo's big time law team.

I wish to someone with the guts and the money, faces Nintendo in the court. This would be a big step for fangames. Around 15 years ago, something similar happened. Enterbrain! sued russian Don Miguel english traduction of RPG Maker 2000, and Don Miguel won, three times.

 

[TBM_Christopher]

You want an honest opinion? If you're making a fangame, you're assuming all the risks. Making a fangame is like carving a name into the sand on the beach - it can fade quickly and be forgotten in an instant.

A lot of fans are upset by this notion, but realize that Nintendo HAS to take action - the instant you fail to defend an intellectual property, it's no longer yours. From a liability standpoint, Nintendo will send you a Cease and Desist, which basically means "stop working on this unlicensed game." They won't take further action unless you fail to comply. If the prospect of having to immediately drop a project for legal reasons isn't your cup of tea, don't even start.

 

[Trev]

Prism got way more popular than most of the other fangames (even the ones that we consider popular). Perspective is everything - outside of the internet, you hear basically nothing about ROM Hacking, and even on the populated side of the internet, you barely hear about it. Prism got a lot more attention than ROM Hacking ever gets because it marketed itself well, and that was ultimately its downfall. Nintendo noticed and took action.

Here's how I console myself when I worry about a C&D: if Pokecommunity's entire ROM Hacking community has been alive since 2008 and Nintendo hasn't shut it down like a sassy girl shutting down a hater, then it's nothing to worry about. Don't do what Prism did and you'll be fine. Or do what Prism did and get leaked after your C&D. Doesn't matter :v

 

[Crizzle]

You want an honest opinion? If you're making a fangame, you're assuming all the risks. Making a fangame is like carving a name into the sand on the beach - it can fade quickly and be forgotten in an instant.

A lot of fans are upset by this notion, but realize that Nintendo HAS to take action - the instant you fail to defend an intellectual property, it's no longer yours. From a liability standpoint, Nintendo will send you a Cease and Desist, which basically means "stop working on this unlicensed game." They won't take further action unless you fail to comply. If the prospect of having to immediately drop a project for legal reasons isn't your cup of tea, don't even start.

Generally, that's true, but not really in this case. Like if Sony tried to make a Pokemon game for the PS4, I'd agree. But in the case of fan games, it really isn't. I don't think fan games are a real threat to Nintendo's IP. In fact, Nintendo has failed to protect their IP's plenty of times as they certainly haven't C&D'ed every major fan game. Does this mean that they've already lost?

 

[Trev]

It's not exactly a winnable battle unless they shut down the various websites that promote ROM Hacking (and let's be real, there are quite a few).

 

[TBM_Christopher]

Generally, that's true, but not really in this case. Like if Sony tried to make a Pokemon game for the PS4, I'd agree. But in the case of fan games, it really isn't. I don't think fan games are a real threat to Nintendo's IP. In fact, Nintendo has failed to protect their IP's plenty of times as they certainly haven't C&D'ed every major fan game. Does this mean that they've already lost?

Theoretically with each "popular" fangame's release(yeah, there isn't really a good yardstick, but I think in the end it boils down to "has a large following and could be difficult to distinguish from an actual product"), Nintendo has to, because if they didn't, a scenario like what you described could be legally defended with "You allowed that guy to make a fangame, so why aren't we as a company allowed to make a 'fangame' of our own?"

 

[Crizzle]

Theoretically with each "popular" fangame's release(yeah, there isn't really a good yardstick, but I think in the end it boils down to "has a large following and could be difficult to distinguish from an actual product"), Nintendo has to, because if they didn't, a scenario like what you described could be legally defended with "You allowed that guy to make a fangame, so why aren't we as a company allowed to make a 'fangame' of our own?"

The difference is that company is a competitor to Nintendo and a legitimate threat to Nintendo's profits.

 

[BelmontSlayer]

I'm not worried about Nintendo coming after my project, especially since I don't live in a country that even sells their products or enforces copyright law. I even threw a little greetz in my release topic for Pokémon Bun. E:3

 

[bunny24680]

I haven't been on the site for quite a time but now when I came, I got this sad new - Cancellation of Pokemon Prism due to C&D notice from Nintendo and then subsequent removal of links to Pokemon Brown and Rijon site. I then read the notice carefully. I think we all can agree that Nintendo own the whole Pokemon franchise (media as well as games) and thus, they have the right to protect their intellectual property and to regulate and censor Rom hacking in case it harms their sales, etc. However, I think such aggressive stance on part of Nintendo is unnecessary - in any case, they may even lose some of the fan base. This is because Pokemon hacks (like Pokemon Prism an Brown) are not aiming at monetary gain but are just trying to revive a favorite age old Pokemon game. I believe that Pokemon hacks keeps the interest of Pokemon fans in the franchise during the long gap between releases of official games, which in turn is beneficial to Nintendo itself. It would have been Ok if Nintendo gave some notification to Prism's developer to "keep it down" or to follow some guidelines but to give a legal notice of C&D resulting in cancellation of years of work, is too much. Such things censor the creativity, imagination and love that Pokemon fans have for Pokemon. I don't think Prism was any where a threat to any original games - original games will always have millions of fans and buys. In conclusion, I think that Nintendo may have been right on its part to take this step but it may not be very beneficial to them. And yeah, a message for Prism's developer "Koolboyman" from my side - Bro, though Pokemon Prism was not able to release fully, your work and dedication over the years have earned respect of many and it will remain forever. Thank you for whatever you did...

 

[bitelaserkhalif]

I would say that nintendont should follow Hasbro in reaction of fan made stuff, in this case Hasbro's MLP:FIM.

If it non profit fanstuff... It's should ok.
However the case is different if it goes for profit.. It's a different story. Get lawsuits on.

keep goin' koolboyman. Galoob was getting lawsuits for its GameGenie, but that case is dismissed.

And remember that Satoru Iwata (died on 2015) don't want to criminalize it's fans.

 

[Coolboyman]

Hi, I was the lead developer for Prism and I thought I'd share my input with this as well as why certain decisions were made.

I partnered with Twitch Plays Pokemon in order to complete the game, because for the longest time I wanted to finish Prism and move onto something else. The developers there worked on other ROM Hacks for the stream and the project manager and crew offered to help to finish the game in exchange that Twitch Plays Pokemon gets to play it before the release. I have very little time these days to ROM Hack these days and I didn't want to drag this out even further. I was ashamed that this was taking so long to finish. So for me it was either get TPP to help out or cancel the game. I accepted TPP's help along with the possibility that Nintendo may notice and not like what I'm doing. Working with the TPP devs as project manager the project came out better than I could've ever dreamed of and the stream helped me get a better perspective of the game from a player's standpoint and iron out a lot of notable flaws.

2016 was a particularly notable year for Nintendo taking fan games down and I was aware of this. I was worried every time Nintendo took down a fan game, specially Uranium. I was absolutely terrified in October when the trailer (that to be fair I authorized) came out and a bunch of news sites started reporting on Pokemon Prism and the trailer was getting an incredible amount of views, but as the weeks and months went by, my fears dropped.

December rolls in and by then my fears were pretty much gone. Everything looked like it was going to work out. Big sites like Kotaku talking about Prism? Nothing happens. Trailer gaining 1.4 million views? Nothing happens. Facebook likes skyrocket? Nothing happens. By then I thought I understood Nintendo's unwritten rules regarding fan games. I wasn't making money and I made it clear when you start the game that this is a fan project and asked people to support the official products. ROM Hacks were never taken down by Nintendo, and the only ROM hack I knew of that was taken down was Crimson Skies, but that was from Squaresoft, not Nintendo. Brown was also around for several years and people continued to play it on Youtube throughout its lifespan. Plus, the ultimate safety net, the famous Twitch Plays Pokemon affiliation. I accepted that I was just paranoid in October and was ready to finally release the game. But then I got a takedown notice days before it was supposed to be released.

Prism was leaked by someone and while I didn't authorize the leak and what was leaked was not a release candidate, I'm seeing people having fun playing Prism and that was the most important thing I wanted out of this project. So now I'm moving onto other game projects. I have a couple of ideas that I'm very excited about and I plan to use a lot from what I learned from Prism's development process while developing these games. While Prism has a lot of problems in the leaked build, I'm still very proud at what I and the rest of the team was able to accomplish.

I was off work during the last 2016 week, so the plan for Prism's Christmas release was to listen to the player feedback regarding bugs and bad game design choices and apply daily updates to resolve those so Prism's in a very polished state once 2017 begins. After that, I would spend a month or two on the unfinished content (Lance Quest and Sevii Islands) to make the postgame much better then move onto my next game project.

If anything, Prism shows people a very important lesson when developing fan content: Don't let it too big that Nintendo has to take action and this is proof that it applies to ROM Hacks too. I don't want to see this happen to anybody else.

Feel free to ask me any questions that you might have. I might do a bigger writeup later regarding the emotional roller-coaster I was going through during the last months of development. With that said, I hope this doesn't discourage anyone from making ROM hacks or spread fear mongering to other projects, but rather to continue their projects but take what they learned from Prism's mistakes and avoid those as much as they can. Keep creating.

 

[shadowmoon522]

Guy had it coming. PC has hosted hacks for 10 years+ and Nintendo has never cared for us.

don't go thinking this site is in the clear, their just trying to use him as an example to encourage other hackers not to mod.
thats what nintendo dose, but all it seems to be doing is just causing people to stop bothering with nintendo.
yet there has yet to be a C&D issued to peta who quite frankly deserve one more then koolboyman.

I don't get why Nintendo can't see the goldmine of opportunity with Hacks like these. It's not like it hasn't been proven that fan/company co-op games can't work(case and point Sega-Hatsune Miku Project Diva). If they were to actually try it, not only are fans pleased because they feel their voices have been heard, it also helps the company because they get a boost in sales, as people, regardless of Hacks will go try the original for themselves! When you treat fans like crap for basically giving you "fanart"(I'll loosely define it as that-very) it only turns them off from your product more. It's like getting upset if someone drew a Fanart or and OC for your series because they love it so much. It makes you appear to be immature. How Nintendo misses this point astounds me. For example, I love Dark Rising for it's challenge, but I'm always going to go back to Black and White. I don't just magically leave a regular game for a fan one. It just doesn't work that way. I might like the fan one better, but it's all preference in the end, and in most cases, people want the original games.

This wasn't an attempt to cash in on the Pokemon franchise(the game was made for free and would've been downloaded FOR FREE), fans weren't trying to "slander" Nintendo or hurt their business. In fact, it was the complete opposite. They wanted Pokemon to grow. The reasons why games like these even exist is because people love the franchises and BECAUSE people want to improve them. I could get Nintendo more if these people were making a profit off their own game and just stealing stuff and calling it their own, but they weren't. All these fans were trying to do was pay homage to their favorite franchise and they got punished for it.

In all honesty Nintendo has the legal rights to take the game down, no if's, and's, or but's, the problem is that they really shouldn't. Rom Hackers put plenty of time into their games and I can say they deserve a lot of credit for what they have to do to make a decent Hack. How does Nintendo think that these same people who make the games are going to say anything nice about them at all after this now? Did they just forget that these hackers are people who also sometimes spend free time developing games? Seriously.

It's a shame because Nintendo is a group of people too and I'm sure their not "conniving evil businessmen" who twirl their hands looking to make more money. I'm sure they put a lot of effort into the products they release and I want to hope they see this is a gold mine for them, but at the moment they really appear anti-consumer, which is not a good thing in the slightest.

meanwhile they are trying to get hackers to help them hack proof their games...

Prism was leaked by someone and while I didn't authorize the leak and what was leaked was not a release candidate

well, it was bound to happen. nintendo can throw C&Ds around, but its not gonna stop people from keeping things alive.

 

[FL]

Coolboyman, very nice to hear you here, you position about this was similar of Uranium devs. I have a question: Are you sure that C&D was legit?

 

[Coolboyman]

Coolboyman, very nice to hear you here, you position about this was similar of Uranium devs. I have a question: Are you sure that C&D was legit?

Yes.

I talked with Nintendo's representatives who have been known to take action against other trademark issues in the past via email and phone.

I understand that based on the circumstances Nintendo had to take action and I have no hard feelings against them anymore. They felt threatened by Prism's massive hype and popularity and they had to do something to protect their trademark.

I followed up with Nintendo's representatives a couple of times and after our talks I better understand Nintendo's position on the matter. They also stated that Nintendo knows I'm not a thief who intended to steal the trademark from them, but it's what had to be done. As far as I know, Nintendo and I have mutual respect towards each other and I would be more than happy to develop games for the Nintendo Switch.

 

[theanhvn]

Yes.

I talked with Nintendo's representatives who have been known to take action against other trademark issues in the past via email and phone.

I understand that based on the circumstances Nintendo had to take action and I have no hard feelings against them anymore. They felt threatened by Prism's massive hype and popularity and they had to do something to protect their trademark.

I followed up with Nintendo's representatives a couple of times and after our talks I better understand Nintendo's position on the matter. They also stated that Nintendo knows I'm not a thief who intended to steal the trademark from them, but it's what had to be done. As far as I know, Nintendo and I have mutual respect towards each other and I would be more than happy to develop games for the Nintendo Switch.

If I were you, I would remove the website, trailer, and facebook page. After that I will create a new nickname which is not concern to the old nickname, change all the credit, dig to the underground, closed group on Facebook or smaller area on the Internet to continue development and with this, act like a leaker. Nintendo can't do anything with this. And I think at this time Nintendo still don't know who was the new developer.

 

[Coolboyman]

If I were you, I would remove the website, trailer, and facebook page. After that I will create a new nickname which is not concern to the old nickname, change all the credit, dig to the underground, closed group on Facebook or smaller area on the Internet to continue development and with this, act like a leaker. Nintendo can't do anything with this. And I think at this time Nintendo still don't know who was the new developer.

I've already shut down the main website and facebook and removed the trailer. I prefer going by "Adam" these days anyway. I absolutely will not go underground and defy the C&D. Besides, the game was leaked by someone anyway.

 

[theanhvn]

I've already shut down the main website and facebook and removed the trailer. I prefer going by "Adam" these days anyway. I absolutely will not go underground and defy the C&D. Besides, the game was leaked by someone anyway.

Okay.

By the way, I think that this box in Pokecommunity need to required 20 post and member only to access in order to protect all hacker from being C&D, and if you want a trailer, Post it on other host than youtube like dailymotion or vimeo.