Topic: Looks like Earthbound won't be hitting Virtual Console

[Flames_of_chaos]

The sad story here

Attack of the Copyright Lawyers

Sure enough, the weeks following E3 were barren. By the end of July we heard from our contact -- all they could say was that there were delays, and while things weren't falling apart, it wasn't looking good. Maybe August? After an agonizing couple of weeks (and the release of the hotly-anticipated DK Math Jr), we got something solid: December. We adjusted our plans accordingly.

We didn't realize it at the time, but the appearance of NoA's legal squad was the beginning of the end for EarthBound. They were demanding changes to the game, and while we can't say specifics, it's safe to assume they were uncomfortable with the game's constant pop culture references. EarthBound's soundtrack, in particular, references/samples every band under the sun, and hearing that any game is constantly referencing bands like The Beatles is enough to make any modern IP lawyer wring his hands.

This wouldn't normally be an issue (lots of changes have been made to other VC releases), but there was one major problem: NCL wasn't playing ball. For reasons we can only guess, the head honchos back in Japan were refusing to let NoA modify the game prior to release. Was it too expensive? Did they disagree with the NoA lawyers' assessment? Were they just being stubborn? Was Itoi involved somehow? None of our sources were able to tell us what transpired.

Meanwhile, we were in the dark, still expecting a December release. By January 2008, we were getting worried. December had come and gone, and Brawl's release was drawing near. If Nintendo hoped to release EarthBound, their window of opportunity was closing -- SSBB's hype had been sending Starmen.Net's traffic off the charts, and it didn't take a marketing genius to realize that, a few weeks/months after the game was released, most people would stop caring about Ness.

Brawl and the ESRB rating
Starmen.Net traffic from June 2007 - June 2008

In March '08, Brawl was released and our traffic peaked. The following Mondays were agonizing, and when EB failed to materialize we contacted our source to find out about the latest holdup. This is when we found out that NoA's lawyers were refusing to release the game without changes, and NCL was refusing to authorize those changes. The stalemate, if it continued, guaranteed that the game would go unreleased.

That news is what compelled us to organize the PK Tube'N in the spring of 2008. It was a last-ditch effort to salvage the game, and we made that much clear: in the video, we explained that "EarthBound is probably not coming out on Virtual Console". The fans responded in the same way they always have: with a huge flood of creativity and an outpouring of support. The Tube'N was a great success, with the submitted videos garnering about 400,000 views over the course of a month.

Part of the reason the Tube'N felt like such a huge success is because, only a week after it started, EarthBound was rated by the ESRB, capping off a huge Shacknews article about the community. This, of course, sent fans into a frenzy, and since then pretty much everyone has believed that it's just a matter of time before EB is released on the VC.

Unfortunately that's not true, as we found out a little later that summer. We've had to sit on the information until now, but the time and circumstances are finally right to let the cat out of the bag:

The VC rating was a mistake.

Not like "ugh we never should have done the ESRB rating early, all these annoying fans are all worked up", but more along the lines of "Uhhh, why was EarthBound rated? I thought the guys over in legal told us to forget about it?"

From what we've learned, Nintendo never intended to send EarthBound up the flagpole; it seems to have been some kind of internal mistake on behalf of the ESRB. By the time both parties (NoA and the ESRB) realized what had happened, it was presumably not worth the effort to 'fix'. NoA didn't have to pay for it, and the ESRB didn't have to go to the trouble of backpedaling. And besides, as far as the ESRB knew, the game would be released eventually anyway... right?

Well, then.

EB was, and will continue to be, withheld due to legal issues. It doesn't matter what anyone's opinions are on copyright law or fair use; the fact is that Nintendo's lawyers have a huge amount of leverage over the release of any game they're uncomfortable with, and EarthBound made them pretty uncomfortable. As long as NCL remains unwilling to approve changes to the game, EarthBound will stay buried.

Long story short: there are a bunch of copyright issues especially with the soundtrack. And it seems like NCL will refuse altering the original game to satisfy copyright law. I know it's sad that copyright issues are making the game a no show but you have to give props and respect to Shigesato Itoi and NCL not allowing their game and original vision to be butchered because of copyrights.

[KDR_11k]

They might have a point if the game hadn't already been released once.

[decoyman]

P.S. - QFT, KDR.

[Deguello]

And by that same token, you should respect Nintendo of America's lawyers in not wanting a gigantic lawsuit about the Beatles music references.  Now I know you're thinking "I'm sure Paul McCartney and Ringo wouldn't mind."  And to tell you the truth, they wouldn't.  But they don't own the rights to their old music.  Michael Jackson does, last time I checked (and according to this little VH1 special.)  And considering the financial climate, both his and in general, I'm sure his lawyers are scanning the headlines like hawks waiting to sue a big company for just this sort of thing.

Realize the good in both parties, NCL not wanting their artistic work to be altered, and NOA wanting the game to be released at any cost due to a desire to please the fans.  It's a pity the current climate is preventing this game's re-release.

Earthbound is Oktoberfest here.  It was a rollicking good time in 1932.  1942 is a little different.

[KDR_11k]

How elaborate are the music references, do they directly take parts of those songs and play them or do they just use a similar style? And why would they get sued now if they didn't get sued back then?

[Flames_of_chaos]

How elaborate are the music references, do they directly take parts of those songs and play them or do they just use a similar style? And why would they get sued now if they didn't get sued back then?

Because copy right infringement lawsuits are much more rampant than it has been in the 90's. And with how the global economy is now you can bet that lawyers would like to get some lawsuit income.  Also The Beatles has been very protective of their songs recently so I'm not surprised.

[Ian Sane]

They might have a point if the game hadn't already been released once.

You would think that but lawyers didn't used to be quite as on the ball about that sort of stuff.  Something like a videogame back in 1995 would have flown under the radar.

I admire NCL for not wanting to compromise the game but I think a lot of people would rather have it slightly altered than not have it at all.

I question however if anyone would have noticed if NOA's lawyers didn't get all worried about it.  I never heard ANYTHING about music rights for Eathbound until recently.  If NOA hadn't brought it up I wonder if there would ever have been any risk.

I really wish copyright law had a "historical accuracy" clause so that any artistic work made in the time when copyright lawyers paid less attention is protected and can be release unaltered.  Why should we have to deal with altered soundtracks or works being kept in unreleasable limbo because they screwed up?  If Earthbound was able to be released and sold in 1995 without any copyright lawyers making a peep it should be allowed to be re-released by Nintendo unaltered because the lawyers had years to express any problems they had with it.  Them failing to do so should be interpreted as them saying it's okay.  It should be like how a brand name can become genericized if a company fails to protect their trademark.  There's a real world example of "you didn't say anything so too bad for you" in the legal system so I think it should apply for copyright as well.

[SirSniffy]

I admire NCL for not wanting to compromise the game but I think a lot of people would rather have it slightly altered than not have it at all.

I'd even be willing to go for this option. I mean, as a U.S. gamer, I am used to changes and alterations to game content. Nintendo of America is clever enough I feel to make some translational and content changes to the game while keeping the game's integrity intact.

I won't hold my breath, but I will remain hopeful that someday I will be able to play Earthbound on my VC.

[KDR_11k]

I really wish copyright law had a "historical accuracy" clause so that any artistic work made in the time when copyright lawyers paid less attention is protected and can be release unaltered.

Be careful what you wish for, that almost amounts to a "defend it or lose it" rule like trademarks have and make it pretty much mandatory to sue anyone who might be even slightly infringing.

[Flames_of_chaos]

They might have a point if the game hadn't already been released once.

I admire NCL for not wanting to compromise the game but I think a lot of people would rather have it slightly altered than not have it at all.

I question however if anyone would have noticed if NOA's lawyers didn't get all worried about it.  I never heard ANYTHING about music rights for Eathbound until recently.  If NOA hadn't brought it up I wonder if there would ever have been any risk.

I really wish copyright law had a "historical accuracy" clause so that any artistic work made in the time when copyright lawyers paid less attention is protected and can be release unaltered.  Why should we have to deal with altered soundtracks or works being kept in unreleasable limbo because they screwed up?  If Earthbound was able to be released and sold in 1995 without any copyright lawyers making a peep it should be allowed to be re-released by Nintendo unaltered because the lawyers had years to express any problems they had with it.  Them failing to do so should be interpreted as them saying it's okay.  It should be like how a brand name can become genericized if a company fails to protect their trademark.  There's a real world example of "you didn't say anything so too bad for you" in the legal system so I think it should apply for copyright as well.

I'm actually surprised you would say something like that since you seem like the type of person that would be pissed if Nintendo messed with a classic like that. Also NOA's legal staff has to deal with simple things like these because it's their job to protect Nintendo's ass from copyright infringement and lawsuits.

And I'm sure everyone wishes that copyright law was different.

[Ian Sane]

Be careful what you wish for, that almost amounts to a "defend it or lose it" rule like trademarks have and make it pretty much mandatory to sue anyone who might be even slightly infringing.

Back date it so that only works prior to 2000 count.  There was a time where someone would make and sell artistic work that was technically copyright infringement.  However the copyright owner didn't complain so the artist assumed that his work's use of that material was acceptable.  Then years later you tries to publicly sell his artistic work again and suddenly lawyers all over him.  I don't think that's very fair.  You can't give someone the impression for years that something they're doing is okay and then suddenly be a hard ass about it.

Since 2000 obviously copyright enforcement has been much more strict.  Which is fine because those are the rules and everyone is aware of them and follows them when making artistic works for sale.  But for pre-2000 works copyright lawyers are kind of changing the rules.  So I say an exception should be made.

To me it's like if prohibition was in the town charter and nobody knew about it and then when it suddenly was acknowledged they went and arrested everyone with liquor in their house because it's against the law, even though those people bought the liquor under the assumption it was not illegal.

[EasyCure]

Poor Bill....

[KDR_11k]

Arbitrary years are no good for laws, that only divides works into classes where some get a free pass and others do not on a purely arbitrary cutoff line. It's fair if that cutoff line is when the law gets passed and earlier actions are judged according to the laws at their point of creation instead of afterwards (I think that's a common legal principle though) but passing a law now that retroactively exempts actions before an arbitrary cutoff line is the kind of disney law that hurts copyright laws and makes them seem biased towards major corporations. Your prohibition example falls flat, ignorance of the law is no defense.

Anyway, what kind of "homage" are we talking about here?

[Mop it up]

I love Earthbound but I've never heard anything about how the music in the game "references/samples every band under the sun". Which bands are we talking about here, and how similar is the music? If it isn't a direct copy, is that really even copyright infringement? Would these supposed references actually harm the original properties in any way? Seems like such a ridiculous claim to me, it's a real shame people aren't going to be able to experience this magical and under-appreciated game simply because of some trivial reference that may just be imagined.

This makes me wonder what chance the NES Earthbound (Mother 1) has of coming to the VC. It was already translated so there's no problem there. Does it have a "derivative" soundtrack as well?

[Spinnzilla]

LOL, pwned.

Why can't they just rework the damn soundtrack?

[Luigi Dude]

I'd like to just say that right now, none of the Mother/Earthbound games have been released on the Japanese Virtual Console either.  Even after the Japanese version of Brawl had a demo of Mother 2 in the Masterpieces section, the game still hasn't come out.

The fact that Nintendo hasn't released them even in Japan yet seems to say that there might be another problem with the games that we don't know about.

[decoyman]

Well, I guess there's one solution then. It's a three-letter word that starts with R and ends with M.

RAM, as in "RAM" a car into Nintendo HQ, temporarily take control of the building, and remain until the papers designating the game for release are signed.

Oh, goodness. This could get me in trouble. FOR EVERYONE, WHAT IS UNDERNEATH THAT SPOILER TAG IS A STUPID JOKE.

It's not even funny, I know.  "Frankly... I'm ashamed." /layton

[Adrock]

Why can't they just rework the damn soundtrack?

Artistic integrity.

[King of Twitch]

Why can't they just rework the damn soundtrack?

Artistic integrity.

Too bad they can't pawn it off to Silicon Knights since they wouldn't worry about either one

[ShyGuy]

I miss Bill...

AND RUBBING THIS BAD NEWS IN HIS FACE HAHAHAHA

[Khushrenada]

Did anyone here know that the soundtrack supposedly rips off the beatles? This is the first time I've ever heard. I honestly think that if they had released this game, no one would ever have known.

It's a shame. I've bought nothing on the virtual console. The one game I was hoping for was Earthbound. I thought for sure it would get released. Looks like I may have to EBay after all.

It explains the delay. I've been wondering why the game has never shown up on after the ESRB rating so long ago. Now that I can't buy Earthbound on the VC, how am I going to get Mother 3 to get released here? Nintendo keeps foiling all schemes to get these games released.

[NWR_insanolord]

Since when is Nintendo's legal department afraid of a challenge?

[stevey]

It all bill's fault, now that he's gone NOA doesn't care about it's fans....

[TofuFury]

That's a real shame. More people need to be able to play this without emulators or paying tons of money off of ebay.

[EasyCure]

Why can't they just rework the damn soundtrack?

Artistic integrity.

This.

I've known the producers were fans of the Beatles and thats why there's so many little references in the game, my favorite being the submarine with the "purley coincidental" yellow color, but i've never heard anything about the soundtrack using samples.. It would explain why its one of the best soundtracks EVER created for a game, but until i see some proof i'm not gonna believe it.

That's a real shame. More people need to be able to play this without emulators or paying tons of money off of ebay.

And this too. Good thing i still have my copy<33 even if vudu broke it! lol