Professor Victoria Schwartz Quoted in "Nintendo’s Copyright Strikes Push Away Its Biggest Fans" -- Wired Magazine

Professor Victoria L. Schwartz is quoted in the Wired magazine article "Nintendo’s Copyright Strikes Push Away Its Biggest Fans." The article considers Nintendo's Digital Millennium Copyright Act takedown requests against content creators.

Excerpts from "Nintendo’s Copyright Strikes Push Away Its Biggest Fans"

“The challenge in issuing copyright takedown notices under the DMCA is it is hard to know how the multi-factor fair use test would ultimately turn out if litigated,” says Victoria Schwartz, professor of law at Pepperdine’s Caruso School of Law.

Regardless, these legal hypotheticals are often rendered moot by the costs of litigation, costs that prohibit most people from fighting multibillion dollar corporations. “This all comes out of the uncertainty from the fair use analysis in copyright law,” says Schwartz. “The YouTuber believes what he is doing counts as fair use. But the fair use analysis is famously unpredictable, which for the individual defendant means it is expensive to fight.”

Modding, at its best, is an artistic outgrowth of play: a change to the rules of the game. But for Nintendo, Schwartz cautions, the picture is broader than copyright. Nintendo is protecting against pollution of their trademarks. Like, for example, shutting down games that associate Pokémon with guns. “Their strategy would be to keep that trademark very child- and family-friendly,” says Schwartz. “Disney has this issue, right? Disney wants to remain very child- and family-friendly. So they're going to especially heavily police infringing uses that don’t fit within that trademark and brand identity.”

The complete article may be found at Wired