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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."
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.
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.