I want to preface this article by saying that Nintendo is well within their LEGAL rights to have acted in the manner that they did regarding the Super Smash Bros. Melee tournament and the Splatoon 2 tournament. I am by no means a lawyer or legal specialist in the field of copyright or intellectual property. I’m still pissed though, and that’s valid.
Nintendo has had a reputation for being a company who generally dislikes fans creating content based on their IPs, out of love for their games and characters. The creators of games like AM2R (or Another Metroid 2 Remake), a fan-made remake of the 1991 title Metroid II: Return of Samus for the Game Boy, were sent DMCA claims despite the game being released for free after a 10-year development cycle. It was essentially a fan game, made in the same way people make fan art or fan fiction. It would be seen as absurd if someone was sent a C&D for posting Zelda fanart of DeviantArt, or selling T-shirts on The Yetee with cute Animal Crossing designs. The developers made no money off of it, were not claiming rights to Nintendo’s intellectual property, and weren’t doing anything wrong as they were not selling it. One could argue that Nintendo wanted to draw attention to their own official remake, Metroid: Samus Returns, but if we’re being real, the number of people who were privy to AM2R was tiny in comparison to the number of people being exposed to the 3DS remake in stores and through advertising. In contrast, SEGA responded to fan games and their developers by… hiring them, and working with them to produce better Sonic games, like Sonic Mania, which was critically acclaimed. Huh. Go figure.
Anyone who is remotely aware of the existence of the Super Smash Bros. franchise knows that there is a sub-group of people who absolutely adore the 2nd instalment in the franchise, Super Smash Bros. Melee. Some Melee players argue that it is the best instalment in the entire series, and play nothing else regularly. Small, local Melee tournaments are still held regularly around the world, which says a lot for a game that was released in 2001.
Of course, GameCube online functionality was essentially non-existent during its tenure, unless you played Phantasy Star Online. This reality does not bode well for those looking to play Melee during a global pandemic in which large gatherings is frowned upon (and, not to mention, dangerous). The nice thing is that Melee fans aren’t hounding Nintendo for a solution – they solved it themselves! A software engineer known as Fizzi created a mod called Slippi which would allow for Melee players to play online without latency issues, something crucial for fighting games to be fair for all players. The competitors were fully prepared to play together in a way that would keep each other safe… until Nintendo stepped in.
On November 19th The Big House, the organisers behind one of the largest Melee tournaments, issued a statement that their Melee and Ultimate competitions would have to be cancelled due to a cease and desist letter from Nintendo of America,, who expressed objection to the use of the Slippi mod. In a statement, Nintendo stated that their reason for objecting to the use of Slippi and the tournament was that it “requires use of illegally copied versions of the game”, as such, they took action because they were left “no choice but to step in to protect [their] intellectual property and brands”.
Okay. First of all, it is not illegal to make a copy of something you already legally own as long as you are making the copy yourself from your legally obtained copy, and the copied game is not being distributed, sold or used for commercial use. I PROMISE you that competitive Melee players are using nothing but official hardware and software in almost every instance of them practicing and competing. The use of an emulator is also legal under fair use laws, as was ruled in SEGA vs. Accolade (1992). While a video game company may tell you what they do and don’t want you to do with their products in their terms of service, it is not up to them to dictate that is and isn’t legal.
Nintendo is super scared of piracy. If Miyamoto ever faced a Boggart, I’m sure he’d see a pirated copy of Super Mario Bros. or something. But these players would have participated in this tournament with official hardware/software, if there wasn’t a hecking pandemic going on right now. This is not being used as an opportunity to download illegally distributed ROMs to use in an emulator. There is nothing nefarious about their intentions. And I will re-iterate, Nintendo is completely within the legal right to issue the C&D and ask for the organisers to not host a competition using their intellectual property. But Melee tournaments do not threaten or deface Nintendo’s intellectual property. The game is almost 2 decades old and is not being sold in any official capacity. Melee tournaments do not deprive Nintendo of any sales. Super Smash Bros. Ultimate has sold 20+ million units worldwide as of September, which is significantly more than the 7+ million copies that Melee sold between its release and the release of the Wii. So you can see why I think this is all very unnecessary. “But it’s the principle! If Nintendo didn’t stop this, people would think it’s okay to just do bad stuff!” I hear you saying. Okay… well Nintendo could work with eSports organisers and help them come together to create a solution.
However, Nintendo hates eSports, which is evidenced by the next thing I want to talk about. Nintendo does organise tournaments, in the form of Splatoon 2, Super Smash Bros. Ultimate and ARMS. After hearing about the Slippi debacle, many competitive players also thought that it was unnecessary. To show solidarity, over 30% of the players in the recent Splatoon 2 tournament changed their display names to supportive ones like “#FreeMelee”, a hashtag that started making the rounds after the tournament from The Big House was cancelled. In response, Nintendo cancelled the livestream for the tournament’s finals, citing “unexpected executional challenges” as the reason for the cancellation. Mmmmm, sure. Smells like censorship.
There is no reason I can see why Nintendo has to act the way they do towards their customers who engage in modding, emulation, and fan game creation. Companies like Valve and SEGA engage with their fans and go on to hire and work alongside them. Even the former President, Satoru Iwata, has gone on record to say that people shouldn’t be punished for creating things out of affection for Nintendo.
There’s also other issues, like the one of Joy-Con drift that Nintendo refuses to acknowledge or solve; or the anti-consumer practice of creating an unnecessary shortage of Super Mario 3D All-Stars in order to psychologically manipulate consumers into making a purchase to placate their feelings of FOMO. Sure, it’s “business” but it’s disheartening to see the maker of content that you love engage in behaviour that hurts their admirers. I have the feeling that Iwata was the last executive who really cared about players, and considered their points of view when making decisions. Other execs like Miyamoto are infamous for killing projects and ideas that don’t align with his particular vision, something that could hinder some much-needed fresh eyes in the company. The only way some projects even made it out were by sneaking around and defying higher-ups, which is really sad. I hope things can change, and that Nintendo can work together with their consumers to make things work for everyone.