Nintendo Is Bullying The Retro Emulation Community

The world’s most beloved video game company is using its legal might to bully and intimidate content creators in the retro emulation scene. Today Russ from Retro Game Corps, a pillar in the handheld community, announced that his YouTube channel has received a second copyright strike from Nintendo.

A third strike within a 90-day window will prompt YouTube to take the channel offline permanently — something that Nintendo knows it has the power to do at any moment. Arguably the greatest retro handheld video resource ever created could be wiped off the face of the earth … but not for the reasons you might think.

Let’s briefly recap these events, and then talk a bit further about Nintendo’s rights, the legality of emulation (and emulation showcases on the Internet), and why I think the company is acting like a bully to actually circumvent current case law and undermine a hobby enjoyed by millions of its fans around the world.

Strike One

Retro Game Corps announced on September 12 that Nintendo had taken action to remove a video on his channel for the first time ever, issuing a copyright strike. The video in question was a review of the MIG Dumper, a grey market product that allows Nintendo Switch users to save a digital copy of their games from the cartridge to a microSD card. These games can then be played on other devices using separate emulation software (such as Yuzu, which Nintendo sued earlier this year and forced to shut down). It’s also worth noting that the Dumper’s companion device, the MIG Flash, comes with certain restrictions, including putting a user’s Nintendo account at risk should they try to play online features of a dumped game at the same time as another player.

But it was Strike One for Retro Game Corps. YouTube’s escalation policies permit the recipient of a strike to file a counter-claim, which would Nintendo with two options: drop the claim, or provide YouTube with evidence that it has filed formal legal action with a court. Because Nintendo is notoriously litigious, and not lacking in money to bankrupt people it thinks have violated its intellectual property, the wise move for a content creator is to take the strike and change the way they operate.

That’s why the second strike — which the channel received today — is so significant. Nintendo is now a keyboard stroke away from eliminating the channel, which was founded in 2020 and today has more than half a million subscribers. Russ, and other content creators who may run afoul of the corporation’s lawyers, has little recourse.

But the first strike was not, in fact, against RGC’s showcasing of the MIG Dumper in action. That certainly drew Nintendo’s attention and motivated the action. But here’s the thing: the MIG device itself is operating in something of an untested legal space (more on that in a minute), and Nintendo probably knows there isn’t any legal case to be brought against a third-party content creator who is simply showing the device on the Internet. So instead, they struck where they knew they could: the use of Nintendo’s intellectual property in a YouTube video. The video’s offense was showing the Super Mario 3D World title screen on camera, for three seconds (in a 23-minute video).

Yes, that’s the sort of “violation” that Nintendo permits thousands of YouTubers to do every single day. Creators use Nintendo’s IP with a fair and reasonable expectation that the company permits such use.

Until they don’t.

Strike Two

YouTube copyright strikes automatically expire after 90 days, giving creators the opportunity to reform their practices and move forward. Retro Game Corps decided to take the L and move on, “and simply make more videos focusing on what I love the most — showing how to play our favorite games on many different platforms.” (Watch the video below for Russ’s further thoughts on the situation following the first strike.)

A new video posted this week focused on Cemu, a fan-made and open-source emulator for the Wii U which has been available for Windows since 2015. The big news is that Cemu is currently being ported to Android, with a beta release now available that can run a handful of games (with glitches) on some of the more powerful Android devices currently on the market.

Retro Game Corps’ video looked at this porting project and tested out the beta using the AYN Odin 2, a popular gaming handheld powered by a Snapdragon 8 Gen 2 processor. Again, in the course of this showcase he showed the title screen of a popular Nintendo game: The Legend of Zelda: Wind Waker. Nintendo struck again, taking down the video and issuing a second copyright strike — once again, not for the video as a whole or its subject matter, but for the single use of this copyrighted Nintendo asset without permission.

In a post to the community this morning, Russ explained that he believed this video wouldn’t draw Nintendo’s ire because it was for a console the company is no longer selling, using footage from a game that cannot be purchased from Nintendo today. (U.S. copyright law’s “fair use” doctrine considers not only the educational value of the use, and whether the material is being used in a transformative way, but also its potential market impact.)

“It does appear that my worst fears are true, and that I am being specifically targeted by Nintendo,” Russ wrote. “My Wii U video was taken down and I received another copyright strike, even though this showcase video was no different than all of the tech demos and reviews I have made on this channel previously.”

Now, the channel that provides such an incalculable value to the retro gaming community — in the form of hardware reviews, setup guides, and more — stands on a knife’s edge. So let’s talk about the people who are doing this.

Nintendo Is A Bully

There is a strong case to be made that Nintendo isn’t so much enforcing its (very valid) copyrights here as it is exploiting and abusing YouTube’s copyright strike system, and using its considerable weight as a multi-billion dollar corporation to threaten independent content creators — even when the law is not on Nintendo’s side.

Russ responded to the first strike, noting, “While I likely have a case to counter-claim and fight for the video’s restoration, I simply don’t have the means to get into a legal battle with a multi-billion corporation known for their cutthroat legal team.”

Let’s start with Nintendo’s actual rights. Like any company or creative, it holds the copyright to its creative works and the right to defend that in court. Nintendo is fully in the right, for example, to take legal action against those who distribute game ROMs on the Internet. In the United States the 1998 Digital Millennium Copyright Act (DMCA) granted companies like Nintendo even greater legal protections, by including language outlawing the circumvention of copyright protection measures. This was the basis for Nintendo’s 2024 lawsuit against the makers of Switch emulator Yuzu, whose developers shut down the project and settled out of court.

Nintendo does not have the legal right or ability, however, to bring an end to the emulation of its games using legally created software. Yuzu got into trouble by using the Switch’s encryption keys to make games playable. And while the distribution of copyrighted game ROMs is clearly illegal (just like film, TV, and music piracy), courts have issued clear judgments that consumers are within their rights to make (and use) back-ups of games they own.

Much to Nintendo’s chagrin, that means that emulation itself is legal. You can buy a cartridge, create a digital file for your own use, and even play it on non-Nintendo hardware.

Nintendo’s legal team knows this, of course, which is why they fall back on tactics like the abuse of YouTube’s copyright strike system. They cannot take legal action against a content creator for making a back-up of a game, or showing a game running on another manufacturer’s hardware. They can’t even take action against a YouTuber showing viewers how to use third-party tools to make back-ups of their games. But they are waging a war against emulation anyway — even calling emulation “piracy” in the legal filing against Yuzu — and so they turn to copyright strikes to take down legal content they don’t like.

That’s a clear abuse of the system. Because of Nintendo’s past statements and actions permitting the use of game footage, creators across the Internet have a reasonable expectation that they may do so without fear of legal action. And so Nintendo appears to be issuing strategically targeted copyright strikes not to defend against YouTubers using its intellectual property (which, again, they do by the thousands every single day). These actions are targeting practices they don’t like — including emulation and game back-ups — despite the fact that these things are legal and Nintendo cannot win those fights in court.

Nintendo, we see what you are doing. And it’s wrong.

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What do you think of Nintendo’s copyright strike actions? How can retro emulation creators best respond? Let us know your thoughts in the comments, and consider subscribing to Retro Game Corps on YouTube to show your support.