It's hard to think of the Nintendo Entertainment System (NES), a machine that most of us above the age of 30 equate as a best friend from adolescence, as anything negative, but last month they've gone from that dependable buddy to something more akin to a bully. For a while, speedruns (trying to get through a level as quickly as possible) and level hacks have been a staple of YouTube upload geekdom, however now Nintendo is cracking down on the videos and having them pulled down from the Web the same way that movie and music companies do. It doesn't matter if the versions are modified, they claim, since the source material is emulated from Nintendo's original work.
We spoke to Jeff Hong, creator of Punktendo, who has created punk versions of classic Nintendo games starring Hot Water Music's Chuck Ragan and Noisey's own Dan Ozzi as characters. Although he hasn't gotten a cease-and-desist from the company, he was ready for one: "Nintendo is pretty notorious for making sure their property is protected even with early NES games that are over 30 years old, so I'm a bit surprised that I haven't heard from them in the year that my site has been up," he admits. Punktendo is made possible through an open source Flash-based NES emulator called Nesbox, which originally had playable NES games which subsequently had to be taken down when they were served a notice from the Entertainment Software Association (ESA). Hong was able to make Punktendo a reality largely thanks to the fact that the creator of Nesbox subsequently posted the open source code from his Web-based emulator.
Ultimately the argument comes down to whether the copyright holder deems the illegal use of their emulated intellectual property is worth the free advertising—and for the first time, it seems as if Nintendo is shifting their view on that subject away from the gaming community. "These videos basically condone the use of emulators and ROMS so that is most likely where Nintendo is taking issue with these videos. I'm sure if these speedruns were being done on the original consoles using the game cartridges, these YouTube channels would be a nonissue," Hong clarifies. "The timing of the crackdown is definitely curious as Nintendo has just released Super Mario Maker which capitalizes on the custom Mario level hacks created illegally and have been proven popular in the Internet gaming world. It would seem they are trying to clear the slate on YouTube and only have authorized Super Mario levels created through Super Mario Maker."
Hong also adds that the current crossroads parallels what the music industry experienced when illegal downloading became a serious issue. He thinks that if Nintendo were to set up a streaming service like Spotify for older games, it could be a positive for both the creators and players. "With Punktendo, I created graphic modifications that parodied the original games by adding punk icons or a layer of social commentary that theoretically should be protected through the fair use laws. I have no legal precedent to prove that video games fall under this law, but I would not risk fighting a lawsuit if it would come down to that," he summarizes, when asked if these recent developments would affect his future work. "Nintendo's crackdown hasn't changed what I will do in the future, I am still planning to update Punktendo with new game mods as I see fit… until I finally receive the dreaded cease and desist."
Click here to visit Punktendo.