 How does Nintendo choose who to sue? Nintendo has developed something of a reputation for being... trigger happy when it comes to litigation. The prevailing joke is that Nintendo will basically sue you for anything for any use of their intellectual property in any form whatsoever. It's kind of up there with my uncle works at Nintendo as being one of the two big memes about interactions with this company. Either you've got a secret in and you have information that you shouldn't have or you're being sued in some way for in any way interacting with the big giant megacorp that is Nintendo. All of that said though and without wanting to diminish instances where it does happen Nintendo doesn't blanket sue everybody. Nintendo doesn't fire out cease and desist to every single fan project. Indeed for a lot of people making fan works based on Nintendo content on the internet this uncertainty, this will they won't they kind of feeling towards Nintendo's properties makes things a little bit worse. If absolutely every fan work was taken down immediately then there would at least be consistency. But the fact that things are so unclear makes it difficult for a creator on the internet to know what exactly they can and can't get away with. Sometimes you'll have fan works that stay on the internet for months, years, decades without Nintendo touching them and in other cases Nintendo will come down very hard very fast. There doesn't seem to be any rhyme or reason to who exactly gets struck with a DMCA takedown or a cease and desist letter and who just gets away with it scot-free for years and years without stopping. Recently the internet has been gifted a little bit of insight into the Nintendo legal process by way of an interview with Don McGowan the former chief legal officer for the Pokemon Company. McGowan worked for the Pokemon Company for around 12 years and was involved with the legal side of for example Pokemon Go and the detective Pikachu movie. He insists that Justice Smith is absolutely delightful and that Ryan Reynolds is apparently just like he seems in movies in real life. He oversaw a team of around 20 lawyers at the Pokemon Company and also oversaw the customer service team and therefore describes himself as having been involved with the team of things that can go wrong. Quite aside from anything else I can't imagine how awful it must be to work customer service for the Pokemon Company. I used to work customer service in a bank and that wasn't great and indeed was a large part of the decision to just give up on professional employment altogether and go self-employed and just do whatever wild things I could come up with. But yeah, doing it for the Pokemon Company with just angry Pokemon fans yelling at you all day. I wouldn't want that. If this video seems a little bit less structured than usual by the way it's because it is because I'm currently at my parents' house for the Easter holidays and I'm using like the five minutes spare where the kids are out of the house in order to film this so that I can just actually get a video made because otherwise it's going to be June before I get another one done, it feels like. Now you may be wondering why I'm talking about the head of the legal team for the Pokemon Company in a video about how Nintendo chooses who to sue and I just want you to bear in mind there's a fair amount of overlap in how these two companies deal with intellectual property. For example, as noted in our Pal World video it is Nintendo rather than the Pokemon Company that owns the trademarks for a lot of the Pokemon characters and their designs and their names. And as such I just I feel like going at this talking about this head of the Pokemon Company's legal team we're covering what Nintendo would do in best practice as well because the two companies are inextricably linked especially when it comes to intellectual property matters. Now when the late Satoru Iwata was president of Nintendo at one point in an Investor Q&A meeting he was asked how Nintendo makes a decision about fan works which ones they take legal action against and which ones they just kind of let slide under the radar and he had some interesting insight into this process. He said, quote As the principal please understand that the question is regarding a rather delicate issue to which no one can perhaps identify a clear cut criterion. Of course we cannot say that we can give tacit approval to any and all the activities which threaten our intellectual properties but on the other hand it would not be appropriate if we treated people who did something based on affection for Nintendo as criminals. It is true that some expressions are detrimental enough to diminish the dignity of our intellectual properties and others destroy our intellectual properties world views by connecting them with something not based on fact. We think one of the criteria for deciding how to respond is whether the expression in question socially diminishes the dignity or value of our intellectual properties or not. Of course it is very hard to have a blanket standard as this problem involves many complex elements that are very difficult to judge. Over the years I've often come back to the phrasing of this diminish the dignity of Nintendo products as being kind of the guiding star for understanding why Nintendo is so harsh with a lot of things that don't necessarily affect the company's bottom line. A large part of the point of a Nintendo product is the tight control that Nintendo has over the way that you play the game. Like they have a very specific gameplay style in mind. They want you to do exactly what you are told and if you do that you get to enjoy the wonderful experience that they have made for you which is very well crafted, very polished assuming that you're going to play in a very specific way. And if you deviate from that then you're not getting the full experience. The dignity is diminished a little bit and so that's why they may come down hard on hackers or modders who then try and change the game. That's why they sometimes come down on YouTube videos that don't show the games in their best light and that's probably also why they go after some fan works in cases where they don't feel like their character is being represented in exactly the way that they want them to be represented. And it is worth bearing in mind that Nintendo has different types of responses to different types of intellectual property infringement. So about a year ago we covered a dubious company that was selling Pokemon NFTs and claimed to be working with the Pokemon company and the Pokemon company went straight for a lawsuit in that case just took them to court and did everything they could to get that website taken off the internet. As opposed to say most fan games will first receive either a cease and desist letter or maybe a DMCA takedown request where the Pokemon company on Nintendo just go to their host for whatever project they have on the internet and just take that off the internet straight away because we do not like it. Under most circumstances that works perfectly well and is kind of the nicest possible way that Nintendo can get a fan creator to stop doing something without having to resort to a full on lawsuit. Now Don McGowan has some interesting insight into how exactly Nintendo and the Pokemon company choose which fan works they are going to send a cease and desist or a DMCA takedown too. How exactly they decide this particular project needs to be gone from off the face of the internet. When asked how the Pokemon company chooses to handle cease and desist letters and how they find projects to take down he said quote short answer thanks to you folks I would be sitting in my office minding my own business when someone from the company would send me a link to a news article or I would stumble across it myself. I teach entertainment law at the University of Washington and say this to my students. The worst thing on earth is when your fan project gets press because now I know about you. So if you've ever had this image in your head of Nintendo lawyers just sitting at computer all day scrolling the internet looking for fan works to sue you're not entirely wrong. It does from McGowan's comments sound like he had an awful lot more on his plate than just that but with a team of 20 lawyers underneath him some of them were yes just happening to stumble across this stuff on the internet not necessarily looking for it not necessarily going out and seeking it but certainly as it popped up they were becoming aware of fan works and we're just bearing them in mind but McGowan says that's not the end of the story quote you don't send a takedown right away you wait to see if they get funded for a Kickstarter or similar if they get funded then that's when you engage no one likes suing fans I was recently at one of the many campuses around the United Kingdom for the University of Law which is one of these kind of nationwide law schools where you can go to study at various different places around the UK depending on where you live I was there having a conversation with one of the lecturers who teaches the online courses if you want to do just an online law qualification specifically about whether or not I should be looking at and this is something I've been considering the solicitor qualification exams to become a solicitor and she herself said that she came from a journalism background so I had a very similar background to me but had gone into law rather than into journalism whereas I come from a journalism background and would be moving into a solicitor legal kind of profession and she said she initially thought that she would want to do what I had been talking about which was go into media law and then she found out what it was actually like and she said it's not fun because it is constant lawsuits it is dealing with people who are infringing your copyright and it is very aggressive and it is very difficult and it is very frustrating and it kind of breaks your soul a little bit I think that's interesting in relation to what McGowan is saying here nobody wants to sue fans like it's not something that anybody enjoys and indeed from his comments he's made it clear that that part of the job is a relatively small part of the wider things that he was doing for the Pokemon Company he talks about how he was involved with the writing of the contracts for things like the Detective Pikachu movie and for working with Niantic with Pokemon Go and getting all the companies on board with that and having everything set out and then it almost sounds like in addition to that every now and then he would either find or be kind of introduced to a colleague saying something like hey have you seen this new thing on Kickstarter someone's making hand-drawn video game guides or something and he has to go all right how much money did they make let's send a cease and desist and so it's like it's not the thing that they want to be doing now of course this is my tiny little violin playing a little sad song for the very well-paid lawyer who works with a big multinational corporation but it is just worth pointing out this kind of legal department this kind of constant fighting against intellectual property infringement is not just a Nintendo thing this is an any legal team for any intellectual property related business thing like this kind of stuff happens all the time at these big companies the difference is just that Nintendo has their barometer or their threshold for sending out cease and desist a little bit lower than some other companies and I do I want to call out shout out moon channel in particular having a great video on why Nintendo specifically is so cagey about intellectual property infringement the short version I do think you should go watch this video but the short version is that they are a relatively small company with a relatively large powerful brand IP selection under their belts like the Pokemon brand is worth so much money that there are a lot of other companies that would love to get a piece of that pie and so because of that Nintendo is very aggressive in defending that intellectual property in a way that some other companies like Sega don't necessarily feel that they need to be and of course we've seen from Sega that they will also take legal action if a fan game ends up making money they very much set that bar as being if there is money involved we are not happy otherwise we're willing to let it slide and with Nintendo and the Pokemon company generally speaking they're less happy with unpaid or unprofitable fan works as well but really the bar for them saying we're absolutely getting involved is if there is money on the table there's a lot that can be learned from the way that Don McGowan talks about his work in general one thing that really struck me this is from his LinkedIn profile he says quote I was the company's head of business and legal affairs when we brought the brand back from the dead so I know a thing or two about restructuring an IP franchise similarly from his recent interview with Aftermath quote I spent a lot of time on the road because during my time at Pokemon the brand returned to international juggernaut status I find that a fascinating insight into how people within the Pokemon company have been thinking about Pokemon because if you ask me I wouldn't have ever said that there was a point when Pokemon wasn't an international juggernaut brand or needed to be brought back from the dead as far as I could tell it's just gone from strength to strength in terms of widespread appeal and understanding of the brand and money that it's making even if at the moment it's not exactly healthy in terms of giving people what they actually want from a game it's also interesting that if the McGowan era is the point of Pokemon Go and Detective Pikachu that's about the point when I stopped buying every single Pokemon game so it might be that I'm not the best judge of when the brand has been in good health or not because yeah that's kind of when I jumped off the only other thing that I could think of that might have affected Pokemon's bottom line during this period is the fact that this was probably the Wii U slash 3DS era as well but it's not like Pokemon underperformed on the 3DS it was one of the big things that held the hand held up for a lot of years as much as it has been for basically every Nintendo handheld I don't know it would be brilliant to get McGowan on this channel at some point and get to interview him myself and just ask him some more questions about this because there's something that went on behind the scenes there that I don't think a lot of Pokemon fans are necessarily privy to now McGowan stepped down from the Pokemon company in 2020 and in recent months he's been quite vocal about his feelings regarding not just Pokemon and Nintendo but kind of the wider gaming sphere in general and had this to say on the subject of Powell world when asked quote this looks like the usual ripoff nonsense that I would see a thousand times a year when I was chief legal officer of Pokemon I'm just surprised it got this far I don't know how far he really looked into Powell world I wonder whether this was something that he was very well aware of or if it was just something that was thrown in front of him and he was asked to immediately respond to that because certainly if you've seen my Powell world video you'll know that I personally don't think that there's enough there in terms of an infringement case and certainly the Pokemon company has not been forthcoming with a lawsuit against Powell world so I suspect that he was just looking at it very quickly and gave a knee jerk reaction to some of these character designs this does then also back up that kind of that growing sentiment within the fan community for Nintendo projects that getting media attention is kind of the death knell of whatever you're working on that you kind of want to work under the radar for as long as possible so that you can then put it out and run away before Nintendo can catch you which is an interesting way to go about this and it does make it rather difficult to maybe market or promote the things that you're making because you've got to drop it and dash and if you make too much noise about it too early in the proceedings then it will end up being taken down if you can get it finished before Nintendo sees it then you're away and in the clear that I guess is the moral of this story and also don't try to fundraise because the moment you start taking money that's the point when Nintendo's lawyers are going to be really interested in finding a remit address anyway, thank you very much for watching I'm sorry for the slightly rambly video but as said, working around the constraints that I have and couldn't possibly bear the thought of not putting out a video this week because I missed last week and life is just a little bit more stressful than I would like it to be at the moment and I like making these videos so here I am, thank you for watching