Nintendo’s Actions Demonstrate Our Intellectual Property Laws are Broken

Nintendo has a love-hate relationship with some of its biggest fans. The competitive Super Smash Bros. community, a group of hardcore gamers who compete head-to-head with one another in games such as Super Smash Bros. Ultimate and Super Smash Bros. Melee, know this better than anyone. While Nintendo has waffled on its support for the Smash Bros. scene in the past, things seemed to come to a head in November 2020 when Nintendo sent a cease-and-desist letter to the Tournament Organizers (TOs) of the Big House, an upcoming streamed Melee tournament, and subsequently forced them to cancel the event.

Super Smash Bros. Melee is a GameCube game that was released in 2001; unlike most competitive esports, Melee was released without any online features. Players, for most of the game’s competitive existence, have played in person. This means that TOs have been tasked with getting enough GameCubes, Wiis, copies of the game, and clunky CRT TVs to play on. TOs and players were happy to bear this burden for nearly two decades, but in March 2020, the COVID-19 pandemic hit, putting an abrupt end to in-person tournaments.

As luck would have it, a fan named Fizzi would go on to release Project Slippi a few months into the pandemic, offering a glimpse of hope for the community. Slippi is a software that provides a seamless way to play online against other players. Fizzi quickly became hailed as a hero, almost single-handedly saving the scene from extinction when tournaments like the Big House chose to adopt Slippi. Nintendo, however, was less thrilled. The Big House’s cancellation, announced after the TOs had been directly contacted by Nintendo, came as a major shock to the community. In the face of public backlash, Nintendo released a statement describing Slippi as a mod that violates their intellectual property. Players rallied against Nintendo’s actions, causing #FreeMelee to trend across social media and throughout the gaming world.

The mechanics of Slippi has important implications for its legality; Slippi is a modified version of the Dolphin emulator that is specifically geared towards running Melee. Essentially, emulators act as mediums for someone to play a game, similar to video game consoles. Emulators are widely, but not universally, thought to be legal. ROMs, which are equivalent to the games themselves, are an entirely different story. ROMs which are possessed or distributed without the copyright holders’ permission likely violate copyright law in various ways. Although this is a complex and multi-faceted case, there are two distinct issues that online Melee tournaments raise: the use of Melee ROMs and Slippi.

To play in an online tournament, players utilize their own ROMs. While it is technically possible to distill a ROM from the game’s original disk, most players opt for the easier route of finding the file online and illegally downloading it. TOs have no practical means of checking how individual ROMs were downloaded, but are certainly aware that most players obtain the ROM illegally. It is therefore possible that TOs would be liable for some form of secondary liability of copyright infringement.

The second issue comes from Slippi itself. Emulators are generally thought to be legal, but Slippi is unique; Slippi takes a vanilla version of Melee’s ROM and materially modifies the game on startup. It adds new sections to the opening menu of the original game, allowing players to access the added online features. It also modifies the game itself through its netplay and rollback functionality. It is an open legal question whether this would constitute an infringing derivative work.

While a Fair Use argument could function as a defense in both cases, and a prior analogous Nintendo case suggests that it may even be successful regarding Slippi’s use, TOs and players alike are frustrated because Nintendo has made it seemingly impossible to support the company at all. For example, although players illegally download Melee ROMs, they do so in part because it is no longer possible to buy a copy of Melee from Nintendo – the twenty-year-old game is no longer sold. Resale prices have made the game incredibly expensive and hard to find, and even if one does own the game, technical limitations make it hard to distill the ROM from an individual disk. Likewise, fans have been clamoring for years for Nintendo to re-release Melee with an online version of the game. While these policy considerations could weigh heavily in their favor, it seems unlikely that any TO or group would be willing to risk litigation by hosting a tournament that Nintendo explicitly forbids.

While much of the community remains ambivalent towards the company, one can only hope that Nintendo comes to see the value that the Smash community could provide them. After the #FreeMelee debacle, and as in-person tournaments resumed, Nintendo partnered with Panda Global to launch a licensed Smash Bros. tournament circuit beginning in 2022. Since there is very little chance of copyright law reform, this slow change of heart is seemingly the best option that the Smash community can hope for.