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In the past, developers have often used copyright infringement to

Jan. 13, 2018 by Kimberly Parks

In the past, developers have often used copyright infringement to build their games. Nintendo of America was sued in the late '90s over the use of the N64 title Pokémon Adventures — a game that would become one of the industry's biggest hits if Nintendo had taken the company to court. While Nintendo of America's lawsuit didn't win, it wasn't until the late 'hood that an investigation by the U.S. Court of Appeals for the Second Circuit found that Nintendo of America's copyright infringement had "been an extremely serious infringement of the public's right to enjoy and play Pokémon."

In response to the U.S. Supreme Court's Citizens United decision in 2011, Nintendo of America began to look for other legal means to block content. In 2009 Pokémon Essentials was created, but its creators weren't interested in a court-sanctioned ban, so they opted to keep their game.

A year later, a similar lawsuit was filed by the American Civil Liberties Union of Florida. The ACLU has filed a lawsuit against Nintendo of America, alleging that it uses the same copyright law, but without "reasonable grounds for believing that the content is infringing." The suit was filed this week in U.S. District Court, Southern District of Florida.

"In the long run, Nintendo of America could simply use these tools to take down this site and build something else based on its copyrighted works," said the ACLU, which is representing the creators of Pokémon Essentials. "A lawsuit like this could have a significant impact on that."

While Nintendo of America has been battling with copyright holders for years, it has yet to take the company down. It's one thing for the company to take down a user's game, but it's quite another when a third party takes down a game's source code.

"This is a game that Nintendo has a long history of using legal action to take down fan games based on its popular copyrighted franchises. Now, the company is taking a new approach," said Chris Minkler, director of the U.S. Digital Entertainment Program at Google that was involved in the lawsuit. "To get rid of a fan game, Nintendo has to do something that's really simple to do: It has to make money. Then it has to make money off it. This isn't like it's a new technology or something new. These things are things that are in the realm of innovation. But that's how we come up with these game ideas."