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this post was submitted on 23 Jan 2024
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Games
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Fair use doesn't work that way. The mod may be defensible if it targets the copyrighted material with implicit or explicit commentary, doesn't usurp the original market, and only takes what is necessary for that commentary. But even then, it is a legal defense and doesn't prevent a lawsuit. And further, it is based on US law and Nintendo is a Japanese company that may assert its own laws in Japanese courts.
Whether or not it's free has next to no bearing, unfortunately.
You're not wrong, but being free does make a pretty massive difference in this context. After all, there are literally hundreds of pokemon mods for other games, and hundreds more fan games and romhacks. Some of them are huge, like Pokemon Infinite Fusion has a discord with over 400,000 people. The only time Nintendo decides to come after those projects is when they start trying to make money.
Right, yes. Whatever the legal situation, there's always the chance that Nintendo doesn't come after you because you aren't seen as commercially profiting, even though it doesn't affect the fair use analysis.
But also, Nintendo absolutely has at times gone after projects even if they don't make money - they are the not always the most aggressive, but they are very unpredictable.
I dunno if that's true but if it is, can you then explain why are nexusmods and steam hosting tons of marvel/disney content without any repercussions for example? What's the difference between that and the pokemon mod, if not the asking price?
Nexus and Steam and U.S.-based sites have § 230 protections that prevent liability unless/until they receive a takedown notice or are acting recklessly.
So they basically allow user-generated content until someone issues a DMCA notice. If they do not take down the content at that point, they can be sued. But at any point Disney or any other rightsholder can demand content to be taken down. If there is a fair use argument, the person posting it can respond to the service with a counternotice and demand it be re-enabled, after which the company has a choice to sue them directly.
Based on that, most user-generated spaces do not police content unless they are asked, since they have liability protection and can respond case-by-case to complaints. Also, they may be held to a higher standard if they conduct active enforcement. Sites like YouTube that have very mature fingerprinting and enforcement do so because it helps them have relationships with businesses, avoid large litigations, and sell ads.