Praising Us Violates IP!

Video game maker Nintendo is apparently waging a trademark crackdown against porn sites that make use of Nintendo characters. (I'm not going to think too hard about what exactly that entails.) Apparently, though, one of their lawyers got a little overzealous and sent a legal nastygram to the owners of the alternaporn site SuicideGirls. The reason? One member had listed Metroid and Zelda among his favorite video games on his profile page. To its credit, an embarassed Nintendo promptly apologized for the error and offered both SG and the user a free Nintendo system and game. (Hat tip: Boing Boing)

Addendum: While Nintendo actually deserves praise for so quickly recognizing this as a goof and making amends (unlike so many other TM holders), Penny Arcade's take is still pretty damn funny.

Comments

[Pavel]

Speaking of intellectual property theft. I've totally been ripping off Hit&Run for my SG newswire stories.

Would you mind suing me and then giving me a lifetime subscription?

[dhex]

from what i understand, nintendo was/is campaigning against search engine spoofing by porn sites. part of their appeal is as the more "child-friendly" console of the three, and all that...

[Brian D'Astous]

An apology has already been issued:

http://www.boingboing.net/2004/10/28/nintendo_apologizes_.html
-----------------
Hello,

We would like to apologize to you and to those who frequent the suicidegirls.com website for inadvertently contacting you about a fan posting on the website.

We know that many of our fans are old enough to make their own choice about what they want to view on the Internet. We value the support of our fans and we respect their decisions. The letter was sent as part of an ongoing Nintendo program to aggressively protect our younger consumers from the hundreds of sexually-explicit sites each year that use Nintendo properties to attract children. We are proud of our efforts in this area. Unfortunately, the site posting identified in our letter was targeted by mistake.

As a gesture of goodwill, we would like to offer you (and RuneLateralus) a free Nintendo video game system and game of your choice. (...)

In addition, we would appreciate it if you could provide us with contact information for RuneLateralus, or have him contact us directly, so that we may apologize to him. We would be glad to send him a game and system of his choice through you as well, since we do not have his contact information.

Sincerely,
Christie Hamilton
Nintendo of America Inc.
Consumer Service Department

[Pavel]

A little testament to the speed of internet culture [it isn't porn don't worry].

[Jason Bourne]

Pavel,

Thankyou for that link.

Julian Sanchez,

Yeah, Nintendo at least had the tits to apologize with alacrity.

[Pro Libertate]

Interesting. Perkins Coie must be scraping the information from WHOIS and automatically sending out the letters. Pretty inevitable that they'd run into something like this.

I've never cared for the wanton use of "cease and desist" letters for perceived violations of IP rights. The IP owners that send them almost never bother with the minor issue of whether there actually is infringement, and I'm not sure it's entirely ethical for them to assert rights they know they don't have. In this case, I doubt anyone looked at the use of the marks in context (bet someone will now!). On the other hand, I've worked with Perkins Coie on IP matters before (I was an in-house counsel with a Seattle corporation, once upon a time), and I never felt that they were unusually overreaching in these matters.

I won't bore y'all with an overly long legal discourse, but this sort of thing really highlights how the supposedly superior protection of free speech is often brushed aside by IP interests. If you think about it, the Constitution permits Congress to protect copyrights and patents but forbids it to pass any laws infringing on the freedom of speech. Obviously, an absolutist argument would result in no IP protection at all, but there's really plenty of room left to protect IP interests, so long as that protection doesn't interfere too much with speech rights. What's really interesting in this analysis is that trademark law isn't Constitutionally established at all, and should lose even more quickly when it conflicts with the First Amendment. This kind of case isn't so obviously a First Amendment case because it lacks direct government action, but there's certainly a question about whether any law that results in the chilling of expression is fully valid.

[mobile]

The blonde guy in the Penny Arcade cartoon looks a flagrant knock-off of Ron Stoppable in Disney's
Kim Possible series.

(Hope I'm not showing my age)