So, if you're wondering what he means by "English Common Law", let me answer your confusion with another question: why doesn't Japan have Fair Use? Well, the an

So, if you're wondering what he means by "English Common Law", let me answer your confusion with another question: why doesn't Japan have Fair Use? Well, the answer's simple: they can't, because judges aren't allowed to legislate from the bench over there. In civil law countries, the law is the law, full stop; judges can't add onto it in any meaningful way. And Fair Use is not a meaningful concept sans that ability. In Japan, if we want an exception to copyright for, say, training AI; we write a law that says "training AI is not an infringement of copyright". Simple, and straight to the point. In America we have tens of very expensive lawsuits just to bring the question to a judge that will probably rule the same way as the TDM exceptions in EU and Japanese law. The only difference is that a bunch of lawyers get richer and the courts get to feel important. The ultimate effect on plaintiffs is that novel uses of copyrighted material become "sue-it-or-lose-it". If those authors want to retain the right to demand licensing fees for AI training, they have to sue OpenAI now, just to get it on the books that training is derivative, not transformative. If they wait until 10 years out it's already become an established norm and no judge will disrupt it. So in Japan, Nintendo can afford to leave certain things in the grey area, unless they actually want it gone. In America, not so much. That being said, it probably has less bearing on Nintendo's actions as one might think from how I described it. Because novel uses of copyrighted material are, well, novel. They don't happen all that often.