Honestly, I didn’t know it was possible to distribute console videogames illegally online until reading an article on the subject matter. I didn’t even know the “Super Mario” series was still being made. However, very similar to illegal music distribution, it’s possible to upload a videogame for Nintendo Wii through peer to peer channels. This is the case of a recent “blunder down under” in Australia when a 24 year old Australian man uploaded and distributed the latest Super Mario game for Nintendo Wii, going against Australia’s Copyright Act of 1968 and later revised in 2006 (according to wikipedia.org). After understanding and applying course concepts, it is clear this defenseless pirate would have been sent to the convict paradise we know as Tasmania, had this been in Australia’s colonial days.
The managing Director of Nintendo in Australia, Rose Lappin, summed it up best when she said, “It wasn't just an Australian issue, it was a global issue.” Once somebody uploads a file, anybody in the world can access the file through our extremely communal internet systems. However, there are means to protect oneself against copyright infringement, which include: work used for criticism, commentary, news reporting and teaching reasons. By the end of the court case, James Burt was found guilty of copyright infringement for a Nintendo product. We will now explore the reasons James Burt was charged a $1.5 million fee settled out of court (on top of his legal costs) by comparing his actions against fair use factors that we discussed in class.
The first fair use factor I will talk about is the purpose for using the copyrighted works. The two aspects that really come into play for this factor are commercial and non-profit motives. Obviously, loading the Super Mario game did not result in profit for James Burt. It did cost Nintendo and its numerous retailers a great deal of loss, however. If Burt posted some information about what he thought after playing the new game as an online review, he could have gotten away with posting the copyrighted information. This was not the case at all. There is a huge difference between posting a review and posting the actual game to download and play. Though Burt did not post Super Mario for a profit, he has bleak odds of winning this case in court. It seems this is strike one for Burt.
The second part of fair use factors deals with the nature of the copyrighted work. When defining nature, it is important to mention: is the work factual or fictional? In most cases, factual work is more difficult to defend against copyright infringement when compared to fictional work. If the facts are facts, then it’s very difficult to copyright it for exclusive rights. Here's an example: last time I checked, Ben Franklin’s birthday was January 17, 1706. Nobody can hold exclusive rights to that fact and copyright it. Any author could publish this information in a factual book. However, last time I checked the concept of Super Mario, it was purely fictional. It’s clear that the Australian court system did not believe James Burt if he claimed to have made up the new Super Mario game, or claimed the game was factual. Super Mario is a fictional made up game registered and legally owned by Nintendo. That’s two strikes for the copyright offender.
The third aspect of fair use factors that we learned about in class was the substantiality of use. In other words, how much of the copyrighted material was used by the accused infringer? According to the Sydney Morning Herald, James Burt “illegally copied and uploaded one of [Nintendo’s] new games to the internet ahead of its release”. James Burt did not duplicate the character of Super Mario (or to a lesser extent just Luigi!) and paste it into a game he created independently from Nintendo featuring those characters. He deliberately uploaded the entire videogame to the internet and shared it amongst thousands of downloaders. This is similar to somebody uploading an entire music album before its release date and sharing it with the entire world, as opposed to just sampling a brief piece of the song. The entire functioning videogame was posted for people to download; therefore, Burt had no case for this piece of the fair use factor list. That puts James Burt at three strikes against copyright infringement, but we can take a look at a “bonus round” before he strikes out for good.
The final part of the fair use factors list we discussed is a major component in this case. The question is: did this affect a potential market? Was it a neutral result from loading the games or was there lost revenue? The answer is: there was lost revenue. As Miss Lappin states in the article, "It's not just about us. It's about retailers and if they can't sell the games then they have to bear the costs associated with that.” Nintendo wasn't the only organization missing out. The reason for the $1.5 million settlement was to recoup lost profits from all the downloads, which resulted in fewer purchases of the physical videogame. Unfortunately for Burt, the Digital Millennium Copyright Act did not change the rules for his copyright infringement. He shared the pre-released game and less people bought the game as a result. There’s no reason to actually buy the game if you already downloaded it. So it’s safe to say that James Burt did cause lost revenue, which officially disqualifies him from this aspect of fair use for this copyright. James Burt just earned his last strike.
After analyzing all of James Burt’s potential defenses that were discussed in class, it’s safe to say he is rightfully guilty. He did not use the videogame for anything that would qualify as fair use and each factor I evaluated throughout this post came up negative for Burt. The case of James Burt in opposition to Nintendo’s Australian division was most likely won by a landslide (the winner being Nintendo). I believe this is a prime example of copyright infringement by way of the internet in our contemporary society.
Article used for this post:
http://www.smh.com.au/digital-
Excellent analysis of this case, Scott. You've applied the various fair use clauses to really determine liability here. I agree with your conclusion that Mr. James Burt is guilty of copyright infringement and should be sent to Tasmania for an undisclosed period of time. Better yet, Mario should chase him around the island!
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