There is no current legislative ruling that puts any power into the realm of ownership of a video game as the right to fair use.
The weird part about this is Nintendo only explicitly talks about this as it relates to YouTube, but there are multiple game streaming options out there.
Right now, publishers and developers hold all the power, it will be interesting to see if any day in the future will actually play this out in court.
As the story continues to develop, we will certainly keep an eye on how Nintendo and the gaming industry itself evolves on the subject of live streaming.
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