Mario 64 Remake Receives a DMCA Complaint From Nintendo

jones_supa writes: Well, we saw this one coming. Just a couple of days after computer science student Erik Roystan Ross released a free recreation of the first level of Nintendo's 1996 Super Mario 64, Nintendo filed a Digital Millennium Copyright Act complaint. It was sent to the content distribution network CloudFlare and the complaint asked to immediately disable public access to the page hosting the remade game. CloudFlare forwarded the complaint to the person hosting Ross' game, after which the hosting provider (a friend of Ross) had to take the game down. Nintendo also sent Ross takedown notices for his downloadable desktop versions of the Bob-Omb Battlefield. Nintendo is famously protective of its copyright, taking issue even with "Let's Play" videos posted on YouTube and threatening to shut down live-streamed Super Smash Bros tournaments."

Comments

Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

Nintendo defines Corporate Social Responsibility as "Putting Smiles on the Faces of Everyone Nintendo Touches." Nintendo of America, working closely with our parent company, Nintendo Co., Ltd., strives to embody this definition in our business activities and interactions with all of our stakeholders.

- http://www.nintendo.com/corp/csr/

I bet this put a smile on the face of Mr. Ross! Just another in the long line of community management bungles from Nintendo.

Re:Nintendo "Corporate Social Responsibility":

[cfalcon]

I mean, sure, I'm a fan of Nintendo... ...But here's the thing. Mario 64 is a game that Nintendo actively remakes, updates, and sells. It's on their shop RIGHT THIS SECOND, updated to work with all the new controllers and whatever on the Wii-U. What legal precedent do they set if they allow a guy to just flat out reimplement their game? Note that they are going with "DMCA takedown"- that's a reasonably soft pitch that doesn't land some cool coder in real legal troubles.

Note that unlike most DMCA (ab)use, this isn't "a website where I told you how to read data on your drive" or "a hyperlink, which is magically indistinguishable from the real thing now" or "an emulator unrelated to our characters, games, or code". This is, some guy made a version of their game and put it online. A game they actively sell for their current system (they may even be making the DS version).

I just don't see this as something that, legally, they can leave up there.

Re:Nintendo "Corporate Social Responsibility":

[maugle]

That's a strange motto for Nintendo to have. Between copyright shenanigans like this, their abusive partner program on YouTube, and their infamous treatment of third-party developers, a better slogan might be "We Make Games, Fuck You".

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

Their primary market is children (and man-children). They're terrified of their brand ever being associated with "adult" material because parents might sue them for said exposing their child to hypothetical adult material. They want to seem trustworthy to the [i]consumer[/i]. From a brand-protection perspective (and even a customer service perspective), it makes perfect sense.

Re:Nintendo "Corporate Social Responsibility":

[dissy]

They're terrified of their brand ever being associated with "adult" material because parents might sue them for said exposing their child to hypothetical adult material.

That must be why Nintendo partnered with Playboy to promote the Nintendo exclusive release of Bayonetta 2.

http://wiiudaily.com/2014/10/nintendo-partners-with-playboy-to-promote-bayonetta-2/
http://bayonetta2.nintendo.com/
http://www.playboy.com/galleries/pamela-horton-nintendo-bayonetta/slide-1

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

Fair use does allow short excerpts from others work to be used legally.

This is NOT a fully game re-implemented but I wonder if we'd be better off allowing full fan-fiction games, art, etc under the 1st amendment, freedom to express, freedom to make art, with the publics interest in mind.

I would say a 'parody work' that remakes the game top-to-bottom should be allowed, in the creators own mind and image, but a complete dupe of Nintendo's original work might be a "counterfeit" or "illegal duplication."

Certainly a mere single world recreation is akin to taking a 3 minute excerpt from a 2 hour film and is completely fair use of Nintendo's IP.

This guy's demo is probably legal but he doesn't have a lawyer to take his case to court to test the waters.

NOTE ON DMCA: YOU DO NOT HAVE TO COMPLY WITH A DMCA TAKE DOWN NOTICE. YOU ONLY HAVE TO DO THAT IF YOU WANT DMCA SAFE HABOUR STATUS. OTHERWISE YOU WILL BE SUBJECT TO COPYRIGHT LAW AS IT EXISTED BEFORE DCMA. THE DEMO CREATOR CAN PUT HIS DEMO BACK UP AFTER NOTIFYING HIS HOST AND CLOUDFLARE THAT HE IN FACT OWNS THE CONTENT AND WHAT HE MADE WAS LEGAL, INCLUDING A STATEMENT ABOUT HOW NINTENDO DOESN'T OWN HIS IP. LEGALLY CLOUDFLARE AND HIS HOST CANNOT BE SUED, BUT HE CAN BE, BY NINTENDO - THIS IS BECAUSE THEY ACTUALLY DID COMPLY WITH DMCA. HE IS ACTUALLY ARGUING NINTENDO VIOLATED DMCA AND HIS CONTENT IS LEGAL, IE UNDER FAIR USE OR 1ST AMENDMENT. NINTENDO'S ONLY COURSE OF ACTION AT THAT POINT IS TO TAKE HIM TO US DISTRICT COURT PERSONALLY. IF THEY THINK THEY CAN WIN.

In US District Court, he can argue to his hearts desire why his demo was legal, perhaps to make precedent to stop other such false actions from occurring in the future.

Nintendo will have to prove the work violated copyright law to get an order from a judge to have it taken down.

This work looks like fair use, like a parody, like new content, like a transformation, like a demo, with public interest - art protected by the 1st amendment. That will be his argument in court.

And he can appeal it to a high court if he loses.

drrobertduncan.com.

Re:Nintendo "Corporate Social Responsibility":

[cheesybagel]

This only comes as a surprise to people who don't know Nintendo. They are one of the most lawsuit happy companies in the gaming market. In the 1980s they sued game developers who made their own game cartridges for the NES without paying for Nintendo for their "IP" to manufacture the cartridge. A lot of the time Nintendo even stalled these guys on purposes so they couldn't publish their games only to come with something quite similar of their own shortly after that. They were laughed out of court and the NES cartridge cloning business began. Today that we have stupid laws like the DMCA even that might happen today.

As for games they at one time sued Rainbow Arts for doing the Great Giana Sisters game claiming that it was too similar to the Mario games. Imagine making a game and calling it Mario. Good luck.

Re:Nintendo "Corporate Social Responsibility":

[fatwilbur]

I agree, Nintendo has to protect their copyright & trademarks for them to remain valid.

However, in a lot of cases I think the lawsuit/legal threat method shows these companies don't have a lot of ingenuity or common sense. Unless it's obviously taking sales away, why not meet with the guy and draw up a license for him to use the content for those purposes? It would be cheaper than any legal action (save perhaps just a threat) and moreover it's likely to generate some goodwill for your company if you support the fans of your products.

Why no one looks for a solution outside of (a) cease and desist permanently and immediately or (b) lawsuit is beyond me.

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

"Your honor. The people of the Internet need the ability to post content on Facebook, Twitter, and their blogs, to share culture, and to make new content based on other peoples content as a basis right to express themselves. The world is sold to us, copyrighted, controlled by big media, whatever they sell to us becomes our imaginations. For a corporation to then be able to come in and say, "no, you cannot do that," that limits the human races right to freedom of expression. For the corporations to control what you can think and do.. that's wrong, and they should not have that power or ability."

"Thank you judge for siding with the public interest and freedom of expression."

drrobertduncan.com

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

I totally agree. It's strange that because it's Nintendo filing the complaint that so many people/sites seem upset that it's been taken down. I suspect a lot of developers would do the same thing given the position Nintendo are in. They still build games with this IP. It's theirs. They own it. Just because you love it does not mean you can do what you want with it. That's the law. Also, not liking the law does not mean that it does not apply to you.

What's the tipping point for extremely popular copyrighted content becoming regarded as open and free to use like this? Because it's extremely popular and well-loved does not mean it is up for grabs. Other huge franchises like Star Wars have come to embrace many forms of third-party work based upon their works, but it wasn't automatically granted just because the public just thought that it magically should be.

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

Why people can't come up with their own game idea and instead decide to clone someone else's hard work is beyond me.

How is giving people free-rein to clone their games in the best interest of any company (or individual)? The DMCA takedown *request* is a very reasonable response by Nintendo to someone making an exact clone of one of their games.

Re:Nintendo "Corporate Social Responsibility":

[maorb]

Fair use does allow short excerpts from others work to be used legally.

Fair use only allows certain excerpts to be used under certain conditions. IANAL and I'm not familiar with all court cases that that might have affected the interpretation of U.S.C. Title 17 Section 107 (the portion of copyright law that implements the "Fair Use" exception), but this might not be covered under that.

That section of the law specifies a few example purposes that can be covered and the closest example is "Scholarship", which this might fall under. I don't think that that is guaranteed though since the use of Mario and related ideas (Goombas, Bob-ombs, etc) as well as the first level of Super Mario 64 was not required for Ross to learn to use or demonstrate the Unity engine, and releasing his work afterwards beyond the video trailer was definitely not needed for the purposes of scholarship (whereas if he released this as part of a project in a class to other students it would have been).

Having said all that, I feel that Nintendo missed a great opportunity for positive PR by not instead contacting Ross and retroactively giving him permission to use the content found in the first world of Super Mario 64 to make this recreation and then using the project to generate excitement for more complete and official re-releases.

This is NOT a fully game re-implemented but I wonder if we'd be better off allowing full fan-fiction games, art, etc under the 1st amendment, freedom to express, freedom to make art, with the publics interest in mind.

This actually perfectly describes one of the things US copyright law is specifically designed to prevent. You have to freedom to make your own art like a 3D platformer game, but you do not necessarily have the freedom to use other people's art, such as the character of Mario or distinctive level designs made by other people, as a part of your art. This was supposed to be off-set by older works passing into the public domain, but that part of the system got broken by Disney; Shame on them.

I would say a 'parody work' that remakes the game top-to-bottom should be allowed, in the creators own mind and image, but a complete dupe of Nintendo's original work might be a "counterfeit" or "illegal duplication."

A parody game is definitely allowed, but you need to remember what a parody is. It generally needs to be humorous twisting of the original work the results in an ironic meaning. An example of a parody would be "Stinkoman 20x6" from Homestarrunner.com (man, didn't think I'd mention that website ever again) which riffs on the Megaman series of side-scrolling video games, other examples include most "[insert popular anime name] the abridged series" videos on youtube. What Ross did is much closer to a duplication of the original work, in fact it's even being referred to as a modern recreation.

Certainly a mere single world recreation is akin to taking a 3 minute excerpt from a 2 hour film and is completely fair use of Nintendo's IP.

This guy's demo is probably legal but he doesn't have a lawyer to take his case to court to test the waters.

This work looks like fair use, like a parody, like new content, like a transformation, like a demo, with public interest - art protected by the 1st amendment. That will be his argument in court.

This seems a bit like comparing apples and oranges. It might be like 3 minutes out of 2 hours in terms of relative length compared to the original work, but that does negate the fact that it's 20-60 minutes of gameplay, not 3 minutes. Additionally many aspects of the recreation would be separate copyrights, use of a likeness of Mario can violate copyright law on its own even without recreating a level from one of Nintendo's games.

You might think this guy's demo should be legal and that's your opinion, but I'm showing you another int

Re: Nintendo "Corporate Social Responsibility":

[hackwrench]

Secret Maryo Chronicles has been around for quite some time. http://www.secretmaryo.org/

Re:Nintendo "Corporate Social Responsibility":

[jklovanc]

You really need to look into fair use and DMCA.

Fair use does allow short excerpts from others work to be used legally.

True if those short excerpts are part of a bigger whole. In this case the copyright material is the whole work.

I would say a 'parody work'

Parody is not emulating the exact same game play as the original. There needs to be significant differences.

THE DEMO CREATOR CAN PUT HIS DEMO BACK UP AFTER NOTIFYING HIS HOST AND CLOUDFLARE THAT HE IN FACT OWNS THE CONTENT

The real process is as follows;
1. Someone posts material
2. A copyright holder files a DMCA take down notice.
3. The ISP takes the material down.
4. The poster files a counter claim.
5. The ISP forwards the claim to the person who filed the takedown notice.
6. The ISP will wait 10-14 days to allow the initial filer to start legal action.
7. If legal action does not occur the post goes back up. If it does the post stays down.

Nintendo will have to prove the work violated copyright law to get an order from a judge to have it taken down.

It is actually the other way around. Once a DMCA take down notice is filed and a legal action is started the material will stay down until a judge allows it up.

taking a 3 minute excerpt from a 2 hour film and is completely fair use of Nintendo's IP

If the "new" work is only 3 minutes long then no it is not fair use.

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

I would say a 'parody work'

Parody is not emulating the exact same game play as the original. There needs to be significant differences.

What if the game Mr. Erik Roystan Ross made depicts the Mario brothers engage with a group of whores in a grand orgy? Sure that would be an very significant difference from the original game?

Would Nintendo object to that, claiming the same DMCA?

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

I have NEVER seen a company follow through with a lawsuit once a DMCA takedown notice was contested.

And you are actually talking about YouTube's process.

Does the law really spell out the convoluted system YouTube uses?

I have not seen the DMCA law myself. I read law as needed.

But I have seen enough to know you can make your own arguments in court and your content can remain online unless they sue you.

Also fair use is not a settled matter. There's lots of potential arguments, and theories, that have not been argued in court in the modern age and era.

Re:Nintendo "Corporate Social Responsibility":

[TerminaMorte]

OP is incorrect. Mario 64 is only on the Wii. You can access it via the Wii mode on the Wii U, but you CANNOT use new controllers.

Re: Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

Many are creating their own games but the reason for copying is: human nature and it requires less work.

Re: Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

they put a smile on everyone's face by ensuring no one plays their crappy games.

Re:Nintendo "Corporate Social Responsibility":

[michelcolman]

There are legal reasons requiring companies to react to violations of their copyright and trademarks, since they may otherwise legally lose them. However, they could have just reacted with "place a notice on your website that we own all the trademarks and copyrights but gave you explicit permission to keep this excellent remake on your website as long as it's limited to part of the first level."

It's more publicity for their game and may actually lead to more sales from people trying out the web version and then buying the real thing. But alas, lawyers don't think that way.

Re:Nintendo "Corporate Social Responsibility":

[cfalcon]

You can't use the Wii-U specific ones, but you can use the Wii ones.

Re:Nintendo "Corporate Social Responsibility":

[Half-pint HAL]

Unless it's obviously taking sales away,

What you are proposing is called "shutting the door when the horse has bolted". It's like not building flood defenses "unless the river is obviously filling people's basements", or not tsunami-proofing your nuclear powerplant "unless a tsunami is obviously knocking out your backup systems and failsafes".

Nintendo's business model has incorporated nostalgia for decades. Sequels, remakes and reissues are their stock-in-trade, and most people are cool with that because they normally do a decent job of it. Allowing others to satiate consumers' nostalgia for free would be suicide to Nintendo.

No doubt some people will say "good -- it'll force them to be original for once", but that's nonsense. Nintendo are still engaged in more innovation than most publishers, who have cookie-cutter FPSes coming out of their ears.

Why no one looks for a solution outside of (a) cease and desist permanently and immediately or (b) lawsuit is beyond me.

Well first of all, a cease and desist is easier and cheaper than drawing up a legally binding contract that is guaranteed to generate no profit, and may serve to reduce sales; and secondly because they typically want the other party to cease and desist!

Re: Nintendo "Corporate Social Responsibility":

[Half-pint HAL]

Many are creating their own games but the reason for copying is: human nature and it requires less work.

It's also easier to grab attention with. In the same week that this Mario64 clone was released, numerous original indie titles were presumably released, but they didn't get the press. Shutting down this sort of thing isn't just good for Nintendo, it's good for the indie scene too.

Re: Nintendo "Corporate Social Responsibility":

[rioki]

Actually, brand recognition. Do you think that /. would have reported, some dude built some game in the browser. The only reason why this was news was because it mas a Mario 64 reproduction.

Re: Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

Then just rename this game to Supermaryo 63.999999.

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

What if the game Mr. Erik Roystan Ross made depicts the Mario brothers engage with a group of whores in a grand orgy? Sure that would be an very significant difference from the original game?

You might get away with that. See e.g. "The Disneyland Memorial Orgy".

But if you did it now, as a response to the DMCA, it would be pretty clear to everyone that you were just being a childish dick.

Re: Nintendo "Corporate Social Responsibility":

[cheesybagel]

The probably didn't notice it exists. Better hope they continue not noticing it.

Re:Nintendo "Corporate Social Responsibility":

[Wootery]

What legal precedent do they set if they allow a guy to just flat out reimplement their game?

Actually, none. Copyrights aren't compromised by allowing infringements (unlike trademarks).

I agree with your other points though. Nintendo's position is reasonable. (Ignoring the copyright-duration debate, which is a separate issue.)

This isn't the first time we've seen this sort of response. Both fan remake projects of Chrono Trigger received Cease and Desist letters.

Re:Nintendo "Corporate Social Responsibility":

[VGPowerlord]

In the 1980s they sued game developers who made their own game cartridges for the NES without paying for Nintendo for their "IP" to manufacture the cartridge.

Are you attempting to revise history?

The court case in question is Atari Games Corp v. Nintendo of America, Inc,.

In this court case, Atari and their subsidiary Tengen were found guilty of copyright infringement after using false pretenses to obtain the code Nintendo used to lockout clone cartridges from the copyright office.

Re:Nintendo "Corporate Social Responsibility":

[StikyPad]

Exactly. If he had used different skins, he probably would have been fine too, since games are not copyrightable on their own; only elements like the characters and the appearance.

Re:Nintendo "Corporate Social Responsibility":

[Anonymous Coward]

Fair use only allows certain excerpts to be used under certain conditions.

That is not an accurate statement of the law. Nothing is said about limiting copies to "excerpts": the law as written allows entire works to be copied, when doing so is fair.

There is also no inclusive list of "certain" conditions. Some examples of considerations that can be relevant are given, but the "list" is specifically indicated as being open-ended (non-inclusive). It's about as un-certain as one can get.

Case law is not a good guide here, since there is a close connection between "fair use" rights and the 9th Amendment (providing for unspecified rights retained by the people). By definition, rights retained by the people can not be taken away by any entity of government, or by the legal profession (individually or collectively).

Unfortunately, in practice that means that unethical lawyers will abuse people, since most people don't understand their rights and most of the legal profession finds the 9th Amendment inconvenient.

Re:Nintendo "Corporate Social Responsibility":

[cheesybagel]

Which disproves what I said that Nintendo are a bunch of lawsuit prone anti-competitive pricks in which way?

There were companies other than Tengen doing clone cartridges. Some of which did clean room reverse engineering.

Also Nintendo lost an anti-trust lawsuit against Atari and Sega in the late 1980s. Guess why.

Re:Nintendo "Corporate Social Responsibility":

[jklovanc]

I have NEVER seen a company follow through with a lawsuit once a DMCA takedown notice was contested.

How many DMCA notices have you been involved in? One only needs to file a suit if the poster files a counter claim. So many do not get to court as the filer knows they are infringing. Even then, very few copyright cases get publicity.

And you are actually talking about YouTube's process.

It is YouTube's process because it complies with Title 17 of the US Code. They didn't come up with it on their own. All US content providers follow the same procedure because it is the only one that protects them from law suits and follows the law.

But I have seen enough to know you can make your own arguments in court and your content can remain online unless they sue you.

What you "know" and what are the fact are two different things. Try reading this

And unless the DMCA issuer notified the OSP before then that they have filed an action in court seeking to restrain you from posting, the OSP must restore access to the removed material. 17 USC 512(g)(2).

The content remains of line if they sue you. The whole reason for the DMCA is to allow a quickremoval of infringing material and give the copyright holder some time to properly file the paperwork with the courts. Without those provisions the harm is done before the paperwork gets through the courts. Perhaps you might want to read the law before commenting on what you "know".

Re:Rescue your "Toadstool" by Joining GayWAD!

[TheReaperD]

Nothing sadder than a wannabe troll that trolls with everything he has and just can't troll. My dyslexic aphasiac roommate does it better, and I'm not trolling you on this fact. Find a new hobby.

Copyright

[Anonymous Coward]

Nintendo doesn't make money anymore with that specific game. Why do copyright laws allow IP owners to excercise rights over abandoned products? I mean, which loss does nintento have to expect?

Re:Copyright

[Em Adespoton]

This one's easy: Nintendo still sells games. They're afraid that if people start playing conversions of their old games (or even just start watching videos of other people playing old games), they'll have no incentive to go out and by their newer games/consoles.

The reality probably includes that, but also includes the fact that since IP goes so deep, any Nintendo games are likely to include IP licensed from others, with specific contract details outlining how the IP can be used. If some third party starts duplicating/redistributing this IP, things get messy.

Not the way it *should* be, but it's the way it *is*. Shortening copyright to 14 years for digital works would fix a lot of this.

Re: Copyright

[Anonymous Coward]

They do sell it for the virtual console in the Wii shop for 1000 points.

Re: Copyright

[sanf780]

I am sure it is sold to parents that do no know how differentiate a NDS from a 3DS (some brick and mortar shops still have a NDS section), and to the people that connected the WiiU to Internet. This is how large companies work today: sell me the same shit again and again. When is the 4K version of Star Wars coming out? I want it sooo badly.

Re:Copyright

[The MAZZTer]

Rumor has it tomorrow they will be announcing Super Mario 64 virtual console title for the Wii U. So yes, they DO make money off of it still! And don't forget the DS remake which still runs on their latest handhelds.

Re:Copyright

[cfalcon]

I mean, it's for sale for the Wii and Wii-U. I'm not sure if the DS version from 2004 is still being printed. It's certainly not abandonware.

Re:Copyright

[thegarbz]

Nintendo doesn't make money anymore with that specific game.

Yes they do. You can buy it right now on the Wii-U. We bought it for the Wii a few years ago. Nintendo have re-released a lot of their franchised greats over and over again on each new console. Heck they only released the SuperMario collections a few years ago with all the old classic games, ON A DISC. Not even a generic Nintendo store download, but a disc sold in the store with games remade to work on new consoles.

Re:Copyright

[jones_supa]

Shortening copyright to 14 years for digital works would fix a lot of this.

Wait, you have to consider all sides of that. Would that "fix" also cause smaller investments being made in game companies and their products? What is more important: cool, big, polished games from the original companies, or the permission for a hobbyist to make a Mario clone?

Re:Copyright

[Anonymous Coward]

You're kidding aren't you? Nintendo has made their money selling the same games (Mario etc etc etc) for 2-3 decades now with increasingly pretty graphics.. Take away the one seller game and they are over sooner rather than later...

Re:Copyright

[cfalcon]

"(Mario etc etc etc)"

Super Mario Bros. is not Super Mario Bros. 2. Neither is anything like Super Mario 3. The Zelda games are all very different from each other. Super Mario 64 is very different from Super Mario Galaxy, and Super Mario 3D World is also unlike the previous ones. The fact that they continue to rerelease older games seems odd until you remember that tons of people still buy them and play them.

Nintendo is certainly not a one-trick pony, even with their big franchises showing up again and again.

Re:Copyright

[Anonymous Coward]

How is a copyright term of 14 years going to cause anyone to reduce their investments in game companies? Do you believe anyone seriously expects a video game to continue selling after 14 YEARS? That's at least two console generations later, getting it to run would be a real hassle, the game would look absolutely dreadful in comparison to newer releases and, especially for Nintendo games, the current target audience wouldn't even have been born when it released.

Re:Copyright

[Half-pint HAL]

Let me just check me Gog.com bookshelf...
"Broken Sword" I,II,III and IV (1996, 1997, 2003, 2006)
"Magic Carpet" (1994)
"Little Big Adventure" I (1994) and 2 (1997)
"Interstate 76" (1997)
"I have no mouth and I must scream" (1995)

I could go on, but I'll just finish with "Another World" (1991). If gog.com did MAME roms, I'd happily pay for even older stuff, like Pacman, Pengo and Mr Do.

Re:Copyright

[jones_supa]

How is a copyright term of 14 years going to cause anyone to reduce their investments in game companies? Do you believe anyone seriously expects a video game to continue selling after 14 YEARS?

That's not unreasonable at all.

There's also another point here: if old games were automatically released into public domain after 14 years, some customers might not want to pay for new stuff at all, because there would be so much old games to play for free.

Re:Copyright

[dissy]

First just to be clear, I'm not disagreeing with your analysis, I agree it is completely spot-on.
If anything my counter is directed at Nintendo and this choice of policy (not that anyone there would be reading this nor care if they did)

They're afraid that if people start playing conversions of their old games (or even just start watching videos of other people playing old games), they'll have no incentive to go out and by their newer games/consoles.

The thing with this line of reasoning is that there are many people like myself who aren't willing to purchase something we can't see or know anything about before buying it.

If I can't see screenshots of the amazing graphics, videos demonstrating the game play mechanics, see the first impressions from reviewers I respect the opinion of, or otherwise get some idea the game may be something I would enjoy playing and get value out of - I simply will not be purchasing it at all.

I have no problems paying a high price for something I believe will be of high value to me.
I also have no problem paying a low price if the value is expected to be low but still there.

What I do have a problem with is paying any price for something of unknown value. I simply refuse to do so.

Not to mention if it was a smaller less recognizable gaming company, going out of your way to hide all details about your game before getting my money strongly implies they know they are peddling garbage, and I can only assume such a purchase was designed to be a scam to take my money while providing no value.
It's worth noting that even the large companies like Nintendo are not immune from this gut reaction feeling. Only their past track record keeps me from assuming the worst.
But I still have to question what they are trying to hide, and why they can't be honest about their product so I can make an informed purchase.

Despite the fact their behavior is intended to prevent lack of sales, the reality is their behavior directly results in a lack of sales.

Re:Copyright

[Anonymous Coward]

Reasonable would be to shorten copyright to 5 years max with no extensions allowed for any reason, and any copyrighted works over 5 years old become public domain immedietly and permanently. Of course Disney, the MPAA and RIAA will never allow this to happen.

Oh, and game consoles need to die, they have become too big a rip-off in the last few years!

Re:Copyright

[Em Adespoton]

The point here is that in order to sell new games, they would need to advance the progress of science and the useful arts. That's what copyright is all about.

A new game that's like an old game, but can run on different hardware, with slightly improved graphics, slightly improved sound, and in-game purchases, does not advance the progress of science and the useful arts.

Basically, history shows that people are willing to pay for products that achieve what copyright sets out to achieve. People tend to find alternate ways of preserving their societal history when copyright is used as a means of artificial monopoly for the sake of holding our social heritage hostage.

Re:Copyright

[Em Adespoton]

Doing this would limit technical development to projects that could be completed within 4 years (4 years to bring to market, 1 year to recoup costs). This doesn't really give enough time for copyright to promote the sciences and useful arts -- even in the computer software realm.

Currently, 14 years is around one generation in the computer/tech world. So copyright would give them a monopoly on the right to copy their creation for one generation, and then get out of the way for the next generation to build on top of it. This is the way US copyright was supposed to work (as opposed to UK copyright for example, which was the Crown's way of granting favors and limiting the spread of information).

The whole concept of introducing the life of the artist has always seemed like a bad idea to me -- it means that if you shorten the artist's life, there's a potential for earlier release into the public domain -- which is why to fix this, they added an extra 40 years, so there would be no immediate benefit to killing someone to release their copywritten work.

However, with corporations able to hold copyrights now, things get even trickier -- plus, we now have works made up of licensed works belonging to others. Because of life + 70, this becomes a nightmare to untangle without making a mistake, so most places just don't bother, and treat all works as if they were under perpetual copyright, and complex works as if derivatives could never be made of them, ever.

The result of THIS is abandonware, where you have people releasing source code and binaries for software where they *probably* hold the copyright, but nobody's sure as the company who held it all together no longer exists, and has possibly sold off its copyright assets, but not for sure. Because nobody's sure, nobody is likely to sue over the work being made available, and if someone eventually does, people just stop copying.

As far as game consoles needing to die/being a ripoff: if they're a ripoff, then don't buy them, and they'll die. Obviously, enough people find them to be worth purchasing to keep them going. For everyone else, there's Angry Birds.

How about other clones?

[sanf780]

I am sure my nephew has seen his share of Flash games that are clones of Mario games. And some of these games come from shady developers, I am sure of it. Thankfully he is now more interested in Minecraft.

Fair Enough

[Anonymous Coward]

I think it's pretty fair if that is what Nintendo wants; it's their right.

I do think it is stupid, though, as this sort of thing brings you a bad rep, while fostering this kind of activity is usually a way to promote yourself and your products.

fair use

[Anonymous Coward]

this is where I think fair use needs to be sharply enforced and new precedents made. in fact society doesn't know the 1st amendment in the United States actually gives them a lot of rights, including that to freedom of expression such as through art and creations but also a public interest exists. the courts currently do a balancing act between what is fair use, what is protected by the 1st amendment, and what is legit infringement. The courts tend to allow abuse of the copyright law, allowing companies to over control media and content, probably because the public doesn't have their own lawyers and rarely go into court.

this demo could be a freedom of expression. it's parody like, too. it has public interest as well under the 1st amendment, because it was posted publically for all to consume and engage in.

The thing about it. Mario's old. Everyone knows the image of Mario. They're going to draw and doodle Mario. They're going to make fan-fiction comics, and games, and art. In fact they do. And they should be able to legally post such content publically, and no company or law should be allowed to take it down or restrict it.

Now that Mario is nothing more than a tree to everyone else, maybe Mario's not a protected entity anymore, nor is Nintendo's IP beyond their copyrighted code and game disc information?

In fact you are allowed to use direct copies of other peoples content under copyright law, when you transform the work into new work perhaps by putting it in a new display with new content. Did this creator do this? Perhaps he did. The re-creation he made has new textures, new areas, tweaks, etc. It merely looks like the old level everyone knew and loved. That's why we need to get some precedents on the books, so Nintendo cannot bully people around to take down what amounts to cultural art and social content.

I hate when big corporations use the copyright rules to take down news content and history, too. Like when Jon Stewart last year did a Comedy Central episode of "Daily Show" featuring info on NRO launching a rocket up into space with a giant octopus sucking the face off North America with the words, "Nothing is beyond our reach," with a bit about NSA surveillance. Jon made some jokes about the logo being close to a popular school girl anime in Tokyo, the kind with tentacle's in it. A short clip was posted on YouTube so we could reference the story and information. Comedy Central waited a year, but finally Time Warner did a take down and YouTube pulled the clip.

At this point they're destroying history and the news and they don't want others to be able to see the content let alone share or talk about it. Even though it's part of our histories, our psychies, our art, our imaginations, our expression, etc.

I myself was using the clip for a website with my lawsuit, the clip was used to educate the public on what was happening in the world regarding satellites, space capability, NRO, NSA, etc. I wanted references to important news, including the launch of another satellite that will be used to spy on us and perhaps even attack us with electro-magnetic rays.

They fucked up my website and presentation on this by taking down the clip.
drrobertduncan.com

Re:fair use

[Half-pint HAL]

it's parody like, too.

Please feel free to explain how an almost-exact copy of something is a parody. If I photocopy your CV, is that parody too?

Job offer?

[Anonymous Coward]

I sure hope Ross' takedown notices from Nintendo included a job offer.

Nintendon't

[nowsharing]

...2...1...Takedown! Corporations are totally out of touch with the streets. Nintendo is taking down all kinds of free fan marketing. They swatted one of Happy Console Gamer's videos that was basically a love-letter to the new Nintendo games: https://www.youtube.com/watch?... It's ironic and infuriating. I hate all of the big three for these reasons. They'll pay for this stance in the long term. They're already going down the drain fast now, and soon they'll probably just be another poorly maintained IP for some other shit company to purchase.

Re:Nintendon't

[thegarbz]

Nintendo is taking down all kinds of free fan marketing

Duplicating a game on another platform that they still actively sell is not free fan marketing.

Re:Nintendon't

[Anonymous Coward]

This is duplicating one level of the game. Essentially a demo that they don't have to host themselves.

Re:Nintendon't

[nowsharing]

But it's not being sold... Hence, one re-made level of a game that they still sell is free fan-made marketing.

Re:Nintendon't

[thegarbz]

Yes it is. It will cost you 1000 Nintendo points and is available on the Wii and Wii-U though through the Nintendo Virtual Console.

You also fail to realise that Nintendo is a company which not only provide a lot of their old archives for sale online ported to a variety of other systems, but also frequently release old software completely re-written for new console as collectors packs like the original Super Mario series which you can still buy right now on disk at most shops which stock Wii games.

They aren't protecting abandon-ware.

Swap

[Tablizer]

Just replace all the objects and sounds with different things. Make Mario a green lumpy alien and replace all the stuff with whacky alien stuff. Name it Blamfoog*.

Flip the image so the green alien is jumping on the ceiling. It's the same gravity rules, just upside down. Nobody would even know it had anything to do with Mario if you don't tell them.

* Sounds like an open-source project name

Re:Swap

[cfalcon]

If you made a Mario 64 level (any of them), believe me, everyone would know. I think you underestimate how many times they've been played.

That's the whole thing though. If this demo hadn't used Mario, it wouldn't have made slashdot, like, twice. No one would have an opinion if it was just a cool game implemented interesting. It's news because it's Mario.

I'll ask the question...

[Anonymous Coward]

So where can we download this remake ?

Re:I'll ask the question...

[Anonymous Coward]

Give it 24-48 hours, and you will probably find it on TPB.

Let's get this started.

[Anonymous Coward]

Fuck Nintendo, fuck all their execs, and fuck their lawyers.

That felt good.

Nintendo are only making more people hate them every year by doing stupid shit like this.

Copyright issue?

[mark-t]

Or trademark issue? Nintendo is using the DMCA here, but if the work contains none of Nintendo's code, then why would copyright apply?

Certainly I can see trademarks being an issue here, and it's only right that Nintendo try and put a stop to it.

Re:Copyright issue?

[mjwx]

Or trademark issue? Nintendo is using the DMCA here, but if the work contains none of Nintendo's code, then why would copyright apply?

Certainly I can see trademarks being an issue here, and it's only right that Nintendo try and put a stop to it.

Copyright would have more to do with art assets.

Even if the developer cleanroomed every texture and model from scratch, it was clearly intended to be a copy.

If the developer had just built the "super mario 64" engine and made his own game assets (erm, Super Silvio 64) he'd have a leg to stand on.

Re:Copyright issue?

[jeepies]

Because it contains their art assets.

Re:Copyright issue?

[Anonymous Coward]

Even if the developer cleanroomed every texture and model from scratch, it was clearly intended to be a copy.

I have no problem with a clean-room implementation. That should be considered a "derivative work".

But using actual assets from the original? That's clearly a no-no.

Re:Copyright issue?

[Anonymous Coward]

There is a specific part of copyright law that DOES NOT cover games, It may cover the rules of the game (like the official Monopoly rules) and it covers the assets of the game.

This guy could have easily solved this DCMA problem by removing Nintendo assets and using his own.

Re:Copyright issue?

[Half-pint HAL]

This guy could have easily solved this DCMA problem by removing Nintendo assets and using his own.

...and designing his own level. Suddenly that word "easily" becomes inapplicable. In the days before orchestral soundtracks, gazillion-polygon reverse kinematic modelling and 4K-ready texture design (ie Mario64 era), the single biggest job in game design was making levels that played right.

Re:Copyright issue?

[Anonymous Coward]

He wouldn't need to design his own levels. Since it's just a small part of the game, once the character models are replaced, it'll be easy to argue that it's a parody and therefore fair use.

Re:Copyright issue?

[Half-pint HAL]

Please explain how it would be a parody.

No shit, Sherlock.

[Anonymous Coward]

Seriously, who didn't see this coming from a mile away?

Hobby vs job

[ArhcAngel]

IANAL but my understanding is that as long as he isn't charging or selling ad space on the page and all of the artwork was digitally created by him and not copied directly he should be clear from almost any type of legal action since it is for "personal" use. I admit I didn't visit the site so I don't know if these conditions were met. Now if he has the Nintendo logo and Mario is bit for bit identical they can go after him for trademark and trade dress infringement but not copyright as he hasn't "published" anything.

Re:Hobby vs job

[Anonymous Coward]

Unfortunately for him, he did not create it all. He used many of the original assets.

Re:Hobby vs job

[Anonymous Coward]

He's actually using the Mario model from Super Mario Galaxy. Further, it's only personal use if he doesn't distribute it. He released it for people to play in the browser via the Unity plugin. It was even released on Github I believe. It's pretty clear infringement here.

Re:Hobby vs job

[Anonymous Coward]

You're right, you're not a lawyer. Sit down and shut the fuck up. Nobody needs legal advice from a fucking idiot.

Re:Hobby vs job

[ArhcAngel]

In that case he is fortunate all he got was a DMCA notice.

Re:Hobby vs job

[Half-pint HAL]

... but not copyright as he hasn't "published" anything.

Hasn't he? I'm sure I saw the software available for download from a website. I must have been dreaming.

Re:Rescue your "Toadstool" by Joining GayWAD!

[Anonymous Coward]

At least the GNAA shit has stopped, or curbed a little.

I liked nintendo

[Anonymous Coward]

One thing I liked about Nintendo is they were the last holdouts on carts vs various CD formats. The carts never made people wait and were typically more reliable.

They were also one of the last holdouts on gaming systems adding mountains of extraneous BS vs just playing games.

Now WII's turn themselves on randomly and shove ADs in your face.

Fuck em.

Just when you thought...

[kuzb]

...Nintendo couldn't further alienate its fanbase, they pull this stupid shit. It's no shock they're starting to suffer the slow death.

Re:Just when you thought...

[thegarbz]

Hardly. When a fan duplicates a game you still actively sell for multiple platforms I see no reason what so ever that Nintendo is in the wrong at stopping the distribution of said game.

Of course, we all saw it coming ...

[Purity Of Essence]

... the moment Slashdot posted a story about it two days ago. Nintendo would not have cared if Slashdot and other big sites didn't overexpose this project. Too many fan games have been destroyed this way.

If you actually like these projects, carefully consider the consequences of your reporting.

If you want to play copyright tattletale, carry on.

A Pyrrhic victory for Nintendo.

[aristotle-dude]

Way to cause everyone to hate you Nintendo. I hope you enjoy your no-none sales of your rehashed products.

Re:A Pyrrhic victory for Nintendo.

[thegarbz]

Way to cause everyone to hate you Nintendo. I hope you enjoy your no-none sales of your rehashed products.

Funny you mention sales of rehashed products. The product in question is still on active sale. It's not some abandoned old game that someone is breathing new life into.

Re:A Pyrrhic victory for Nintendo.

[Anonymous Coward]

Not at all. Even retards could see this was trademark infringement, let alone the theft of assets. Anyone skilled enough to navigate the awful Unity UI would know what would follow. But had they done their own asset and level design, they wouldn't have got their 5 minutes of fame on dweebs' websites.

Archive.org's MAME ROM collection

[Anonymous Coward]

have they seen this yet?

sad :(

[seopro2691]

i remember mario is my first ever game that i played when i get to know what is gaming and believe me it's not just a game but it's my best childhood friend as well :) http://techpopat.com/

googledrive link still works

[Anonymous Coward]

https://e309ac2f88e3628091cd5d7bde5ca47aadc8d85d.googledrive.com/host/0B8LzjlWgzu_bcmp0RlZ4QzZkcGs/index.html

Re:Rescue your "Toadstool" by Joining GayWAD!

[TheReaperD]

Yea, I'm glad too. It's just... sad.

Re:Rescue your "Toadstool" by Joining GayWAD!

[TheReaperD]

Preparation H, not Bengay and you're trying too hard [as well | still].