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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."
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.
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".
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.
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.
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
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.
...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.
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
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.
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.
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.