
Full Screen Mario Takedown Notice - TheAuditor
http://www.fullscreenmario.com/index.html
======
krakensden
Of course they did. Everyone told you they would. Copyright is not just
something that a bunch of greybeards imagined and have been lying to young
programmers about.

Simple steps to protect yourself:

* Try not to clone commercial products to the pixel

* Pay attention to software licenses. Sometimes they matter

* If prominent news websites accuse you of doing something illegal, consider what they have to say

~~~
sillysaurus2
Some mobile users can't read your pointers because you're using source code
formatting instead of italicizing with asterisks, fyi.

~~~
m_eiman
You can drag the "source code" text to scroll it.

------
fit2rule
Its a real pity, but consider it to your advantage that this occurred, because
it means that all your hard work can be pushed further into newer territory.
While you would have been limited by how far you can promote a Super Mario
clone, now the engine can be re-purposed to something else instead - something
creative, perhaps? (It wasn't something I would have considered to be terribly
creative, btw: the correct word to use is derivative..)

So, if you take the perspective that Nintendo are doing you a favour by
pushing your next phase of development away from derivation and instead into
creation, and if you do indeed re-factor the codebase to do something else,
then you will have experienced a positive effect from this experience. If all
you do is take it down and not think about the next generation of product that
you can base on your proven, demonstrated working technology, then I think you
will have kind of missed an opportunity. Of course, easier for some random
stranger on the internet to say this: but if you roll your own content on top
of this layer, then you'll have really made something ..

~~~
Kequc
So since the source code is written from scratch and the only thing copied
were art assets and level design. And since there is a level editor available.
They would be able to release it again without prebuilt levels with different
art.

It's already not derivative other than cosmetically, I can understand trying
to find silver lining but the whole DMCA thing is a ridiculous grey fluster
cuck.

~~~
pbhjpbhj
> _It 's already not derivative other than cosmetically_ //

Appearance matters, form matters the moreso I'd say.

If the appearance and level structure and such didn't matter there would have
been no reason to duplicate them would there?

~~~
Kequc
I'd be hard pressed to come up with any way in which Nintendo was losing money
here though.

~~~
cpayne
It's not about losing money. It's about protecting their brand.

Precedent is a slippery slope. Once you allow the "first" to copy your
product, its so much harder to fight the 2nd or 3rd attempt.

~~~
Kequc
They can licence the dude that made this html5 demo so he can use their
assets.

------
IvanK_net
So if I understand, they had a huge website traffic and made lots of money
(donations) thanks to stealing the product (Mario character) from another
company (Nintendo), who invested lots of money and hard work into it, and they
are still complaining about it?

~~~
Peaker
They made a derivative work that added value to many people. And the law said
that derivative works are generally banned, and society should be deprived of
them. So their hard work to make Mario work for many people in the browser
should be thrown away.

The word "theft" is unproductive, because as this case shows, it might be more
descriptive to claim that copyright is theft, as society was deprived of value
for no good reason at all. Nintendo won't make more and better games because
this website does not exist. People won't enjoy a single nice thing. Copyright
stole this value from everyone.

~~~
etler
Nintendo still sells the original mario bros. game through multiple avenues.
This site existing absolutely takes away from Nintendo's profits off the game
in a real sense.

~~~
spacelizard
I disagree, Nintendo has never distributed a PC- or browser-based version of
this game. Also, it's debatable whether or not profiting from a thirty-year-
old game is adding social value. Nintendo seems to fashion themselves after
Disney, in the sense that they place extreme value for themselves on copyright
protectionism.

~~~
cpayne
They haven't but they might license someone else to do it.

~~~
Peaker
Creating derivative works is the most productive avenue for creativity. By
requiring a license for it, it is virtually banned. Society loses out on a
huge body of derivative works.

Note, virtually all works are derivative works, except that now, we're only
allowed to derive from stuff created at an arbitrary point when copyrights
became perpetual.

If this mario game was allowed to benefit the many users it did -- would
Nintendo lose their incentive to create new games? Would it make Mario not
profitable to develop retroactively?

I think the answer to these questions is clear. As is the fact that society is
deprived of a huge amount of value here.

------
basicallydan
> Full Screen Mario was enjoyed by nearly 2.7 million unique visitors during
> almost a month of popularity, across 6 continents and dozens of languages.
> I’m glad so many people got to enjoy the game, and look forward to working
> on new and exciting (and legal) projects.

Handled like a pro. Josh, I admire your dignity.

~~~
wrongc0ntinent
Yes. Don't know how much he ever got in donations, but at least it was a good
showcase for him.

------
K2h
looks like the repo is still up
[https://github.com/DiogenesTheCynic/FullScreenMario](https://github.com/DiogenesTheCynic/FullScreenMario)

~~~
pbhjpbhj
Does github get a pass based on safe harbour laws?

Do those laws apply even now when github are going to be on very thin ice
arguing they had no knowledge of the infringement or their hosting of
copyright infringing content - seems like they'd be an easy target for a
contributory infringement suite?

A cynic might imagine that they're waiting for the usage statistics to go up
so as to inflate the claim.

~~~
paulhodge
Github.com is protected by the DMCA. If they get a takedown notice then they
have to comply, until then they aren't liable. One of the whole points of the
DMCA is to prevent hosting companies like Github from being held liable when
their users upload infringing content.

[http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Ac...](http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Title_II:_Online_Copyright_Infringement_Liability_Limitation_Act)

------
anonova
A relevant issue from several weeks ago:
[https://github.com/Diogenesthecynic/FullScreenMario/issues/3...](https://github.com/Diogenesthecynic/FullScreenMario/issues/34)

~~~
kamjam
It would be good if Nintendo worked with him/them to release this on their own
site. It would be some good publicity for them.

~~~
Silhouette
Agreed. Nintendo seem to be well within their legal rights, but surely there
was a more constructive way to handle this situation than lawyering up first
and asking questions never. They could have offered to buy him out and put the
game on their own site to bring in traffic, or even just come to some
arrangement where his site operated with their blessing in return for
promoting newer Nintendo products in a useful way. There was a missed
opportunity here.

~~~
krapp
But Nintendo doesn't need his traffic, nor do they need him to help promote
their products. And if they wanted a browser-playable version of Super Mario
Bros. I'm quite certain they could find their own people to develop it.

Literally, as nice as this was, it has nothing to offer Nintendo (that wasn't
taken from them to begin with).

~~~
Silhouette
_Literally, as nice as this was, it has nothing to offer Nintendo (that wasn
't taken from them to begin with)._

Well, apparently he had 2.7 unique visitors in a month. That's a lot of
advertising they could have had for their current product range, and I don't
imagine most of those people are going to go out and buy some new gear from
Nintendo just so they can play a nostalgic game of Mario.

No doubt Nintendo could have developed a similar web-based implementation of
Mario if they'd wanted to, but the facts appear to be that they didn't and
someone else did. They could probably have benefited from that, and maybe
earned a bit of goodwill from the community in the process, for the cost of a
mid-level rep spending a few minutes talking with legal and writing a couple
of e-mails.

~~~
krapp
They may legally have had no other options but to point and shoot, especially
when it became clear that Full Screen Mario was popular, but IANAJL so I don't
know.

I see your point, though i'd still contend Nintendo doesn't need eyeballs or
goodwill when it comes to their flagship products. They can pretty much stick
Link or Mario onto anything and it will still sell. You can play the original
Mario officially on newer platforms. One of my favorite desk toys is a power-
up mushroom I got from Hot Topic that had candy in it which I immediately
poured into the trash because the thing it came in was so cool. The popularity
of Full Screen Mario demonstrates that - people _love_ Mario, especially the
old 8-bit version. It's quite possible that Nintendo discovered there was a
market to be tapped with browser-based games that they were unaware of (or
unaware of the scale of), but they own Mario anyway, and they don't need to do
Josh Goldberg any favors.

Although I completely agree that a great deal of potential creative value is
being lost by not allowing classic games to be legally remade (I would love to
take a crack at some Intellivision games, especially the old TSR adventures)
that's an abstract issue. Nintendo's not an indie game factory that needs to
build cred within the gaming community, and while the discussion about the
value of derivative works and copyright is worth having, _this_ outcome was
pretty much a fait accompli.

~~~
kamjam
While I agree with your point, and no one is disputing that Nintendo owns all
rights to Mario and they may not need more visitors, goodwill is a difficult
thing to earn. It's even easier to lose. Time will tell, but hopefully they
will either take this or have their own dev team release something.

That fact is that this project is now public domain, it's right there on
Github and any of us can take the source code and build it. Of course it's
illegal to host it, but that doesn't mean that those more techincally inclined
couldn't run the game locally.

------
code_duck
Nintendo is known to be protective of their largest franchises. If you look at
your average ROM site, there are only a few games they try hard to prevent
downloads of - Mario, Zelda, Donkey Kong.

How about picking a less well known, but just as entertaining platform game?
Many for the Sega Master System are either abandonware or close enough.

------
Silhouette
Can those of you who just want to advocate or share techniques for knowingly
breaking the law please do it somewhere else?

HN is one of the better forums on-line, and it would be a shame if it started
getting associated with illegal activities, however much you personally might
feel that law is wrong.

------
deckar01
The internet archive still has it.

~~~
deweerdt
[https://web.archive.org/web/20131019203859/http://www.fullsc...](https://web.archive.org/web/20131019203859/http://www.fullscreenmario.com/)

------
hnrandom
This took longer than I expected.

~~~
rybosome
Agreed. This is the only part of the situation that has been surprising to me.

------
yeukhon
But you can make this an extension and people can just play off their browser.
They can't go after everyone downloading the source code and they are not in a
position to stop people from playing off their browser.

~~~
pbhjpbhj
> _They can 't go after everyone downloading the source code_ //

They could. But it's highly unlikely and probably in some jurisdictions they
would fail.

~~~
yeukhon
I don't think it is the source code that the jurisdiction has problem with; I
think it is the fact that he is offering a hosted service to play this in an
emulation/js implementation. In my narrow opinion, anyone could share the
source code that they wrote and playing off our own browser does not violating
copyright and is entirely altruistic.

------
danso
I'm going to go out on a limb here: nearly everyone on HN respects and admires
Bill Watterson, the creator of "Calvin and Hobbes." And yet Watterson has been
quite protective of his cartoon creations, basically not allowing anyone to
re-use them to make merchandise or new content, even though Watterson would
become filthy rich off of it, and the world would likely be a better place
with more Hobbes window-suction dolls than Garfields.

But isn't it Watterson's right to do this? He's an artist, and he wisely saw
that the crass commercialization of his beloved creations would, in the long
run, reduce their nostalgic value. Hell, maybe he isn't even thinking in that
way. In any case, I think it's possible that C&H holds such a special place in
our consciousness because of Watterson's reluctance to license his characters,
and _good for him_.

Now imagine a situation in which a hard-working t-shirt maker puts the images
of C&H on shirts -- shirts for which he risks a tremendous amount of capital
to produce -- and makes a boatload of money selling $8 t-shirts? Is Watterson
harmed financially? For some people, the answer is "No", because Watterson was
not making money off of C&H t-shirts in the first place. And copying static
images certainly doesn't remove them from Watterson's possession.

Yet I would argue again that Watterson's artistic intent has been
damaged...and that even though he hasn't been _physically_ robbed, a well-
intentioned t-shirt maker has watered down the value of Watterson's creation.

Is this not the same situation as the OP here? Is it different because
Nintendo is a big corporation that should be doing better things with its
time? Perhaps...size does matter. But the principle is arguably the same, and
for anyone to say that Nintendo is going overboard and doesn't need to protect
its intellectual property, that requires making a huge assumption about
Nintendo's strategy on how it wishes Mario Bros. to be experienced, same as
it's a huge assumption to say that Bill Watterson doesn't know what he's doing
when he refuses to license the use of C&H.

More context. This is Watterson's opinion on turning C&H into a film:

[http://www.salon.com/2013/10/17/calvin_and_hobbes_creator_bi...](http://www.salon.com/2013/10/17/calvin_and_hobbes_creator_bill_watterson_gives_rare_interview/)

> _Watterson also confirmed that an animated “Calvin and Hobbes” movie won’t
> happen:_ > > > _The visual sophistication of Pixar blows me away, but I have
> zero interest in animating Calvin and Hobbes. If you’ve ever compared a film
> to a novel it’s based on, you know the novel gets bludgeoned. It’s
> inevitable, because different media have different strengths and needs, and
> when you make a movie, the movie’s needs get served. As a comic strip,
> Calvin and Hobbes works exactly the way I intended it to. There’s no upside
> for me in adapting it._

Watterson is incredibly protective of his own creation, so far as to not even
give Pixar -- legendary artists in their own right -- a chance to entertain
millions of people with the goodness of C&H. Yet I don't think that makes him
a copyright-villain.

~~~
chinpokomon
Sure he is -- not in a legal sense, but certainly in a cultural sense.

To pick another comic from the era, the Far Side doesn't have a central
character or set of characters like Calvin & Hobbes. There may be a recurring
cast of similar bovine, but they aren't characters in the same way Calvin and
Hobbes are. Is C&H more worthy of copyright protection? Copying any one comic
would be violation of copyright, but if I make another comic with talking
cows, no one will say that I sole from the Far Side... well they may say it,
but it would be hard to prove.

Once published, these original works become part of our culture. If someone
draws a young boy with a stuffed tiger and makes no claim that the characters
are to depict Calvin and Hobbes, how can someone claim that they are protected
from copyright anymore so than taking cows?

If I have the choice of buying a t-shirt that Bill Watterson illustrated, or
some knock-off imitation that claims to be illustrated by Bill Watterson, Bill
should be able to sue to protect his name. But if the illustration makes no
claim to have been authored by Bill Watterson, why shouldn't this be allowed?
Side by side on a clothing rack, I'd buy the official C&H design over an
imitation, provided that the official design was the funnier shirt. If the
"imitation" design is funnier, then do we as a culture not benefit from what
would today be categorized as copyright infringement?

With Full Screen Mario, no claim is made that this is created by Nintendo. If
you recolored the art, so that Mario had purple overalls and a yellow shirt,
is that sufficiently different? At what point has something been altered
enough so that the derivative work isn't a "copy?" Can Nintendo lay claim to
the color palette chosen?

The reality is that the line drawn between what is the original and what is
copyright infringement is indefinable. More to the point, it is a legal
question answered by a court, and therefore an objective decision. Characters
are just as much a part of the culture as are the style and format. It just so
happens that our current laws favor the protection of characters. If your
character is overwhelmingly recognizable in "derivative" works, copyright
holders can claim infringement, even when copying wasn't a part of the
creative process. Even if the "derivative" work is substantially different in
terms of how the asset is used.

As a culture, we really need to reflect upon why we have copyright protection
in the first place. I'm convinced that it is causing more harm than good.
Copyright is meant to expire so that the culture can build upon concepts and
ideas that are still relatable to the culture in which the original was
established. 25 years is more than ample time for the original copyright owner
to have benefited from an idea. There is no harm to our culture if those ideas
are allowed to flourish under the stewardship of others. With the accelerated
pace or society evolves today, 25 years is downright ancient.

Full Screen Mario is obviously intended to look and feel like the original
game Nintendo published 30 years ago, but so much has changed since then. If
Nintendo created Super Mario Brothers today, and they were just getting into
the gaming industry, I don't think they would have even built the game using
web technologies... they probably would have created a game that runs on
cellphones and tablets and they would have called the game Angry Birds.

Rovio understands current copyright law as much as anyone, which is why their
games have recognizable characters. Sling shots can be replaced with catapults
and birds could be replaced with squirrels, and no one would mistake that game
for Angry Birds, even with similar game play mechanics. If you were to put a
red bird with a yellow beak in a racing game, I would be terribly surprised if
the creators of the driving game weren't sued. Has our culture been harmed in
either instance? Has Rovio been damaged in one instance more than the other?
Does our culture benefit from any of this copyright debate?

------
TheAuditor
If they wanted to Nintento could have actually made use of the programmer to
create a new empire in HTML gaming in partnership. But they choose to go for
the same old 'its my stuff'.

~~~
rgj
It _is_ their stuff.

------
Frozenlock
Oh Nintendo. You used to be so fun and innovative.

But now, it seems you can't make anything newsworthy anymore. (Or when you end
up in the news, it's because of some silly takedown like this one.)

~~~
sebkomianos
C'mon man, if there is one innovative video games company it's Nintendo. At
least in that scale.

I agree with @kamjam that it would have been great if Ninty put it on their
site but I didn't have the expectation from them to let anyone use their whole
game.

~~~
sillysaurus2
What innovative things has Nintendo been doing besides the Wii? Nintendo is
the opposite of innovative when compared to Valve.

EDIT: Hmm, I've touched a nerve. Good. When proponents of Nintendo need to
resort to "They invented the thumbstick" as an example of their innovation, it
becomes obvious that they're not innovating in modern times, else it would be
easy to give examples. Nintendo has no recent innovations when compared to
other game companies. (The Wii isn't recent, and the WiiU is dead.)

~~~
Keyframe
_What innovative things has Nintendo been doing besides the Wii?_

Of top of my head and I am sure there are plenty more.

\- D-Pad (1982 on donkey kong)

\- L-R buttons on SNES

\- redefining handheld console as we know it today (gameboy)

\- Analog stick on a joypad (N64 had it first)

\- Rumble actuator on a joypad (N64 had it first)

\- revitalization of game and game console market with NES

\- Touch screen interface on handheld consoles with dual screen (before
iphone)

\- portable handheld console with 3D without glasses

\- 'portable' 3d console (virtual boy)

\- (re)defining 2d platformer genre as we know it today

\- (re)defining 3d platformer genre as we know it today (N64 super mario)

\- vast collection of super brands of games and characters

\- Wii and that whole thing with motion controller

\- Wii U with separate screen on a controller

.... many many more

So, what has Valve done exactly? They created a marketplace for games which
has revitalized PC gaming (debatable on revitalized - more like set direction)
and several popular games. Don't get me wrong, Valve is successful and likable
company now (remember when everybody hated Steam?). They are just not in the
same category with Nintendo as far as innovation goes, not technically nor
creatively. Maybe some day they will be, but they are definitely not there
yet.

~~~
sillysaurus2
This feels bizarre. Maybe HNers don't actually play videogames?

The Wii U is dead. It completely flopped. The original Wii may as well be
ancient, in terms of game industry time.

Nintendo _was_ innovative. But they haven't been for awhile. When they have to
resort to lawyering their fans, it's a bad omen. And they don't seem to have
anything else up their sleeve right now, as Yahtzee elucidates:
[http://www.escapistmagazine.com/videos/view/zero-
punctuation...](http://www.escapistmagazine.com/videos/view/zero-
punctuation/7417-Next-Gen-Buyers-Guide?hq=1)

It's interesting that most people aren't recognizing what Valve's controller
represents. The future of console gaming is Valve. I'll be happy to refer back
to this comment in five years. Shall we bet $10?

~~~
Keyframe
Those are two different things though. Success and innovation. I was referring
to innovation alone. Success is a whole other beast and I am sure it can be
debated to great lengths. Especially in this context where it's not a zero-sum
game. In order for Nintendo to be successful Valve doesn't have to lose and
vice versa. They have to successfully capture whatever the market they are
after. Is it the same market? I doubt it. Is there some overlap. Sure.

 _The future of console gaming is Valve_

I don't bet because I am strongly opposed, for personal reasons, against
gambling. We can bet on proverbial 'I told you so' if you will. Even though I
haven't alluded that I think Valve isn't the future of console gaming in any
way, now that I think about it I am sure it won't be. There's a possibility
they will be a major player in console market, but I don't see that happening
any time soon. I am quite sure they will disrupt PC gaming market once
again... console gaming? no.

So if you will, we can bet on that and come back to this 5 years from now for
an 'I told you so' moment :)

PS

As long as I remember (and I remember back to the dinosaurs age) Nintendo has
been regarded as 'soon to be dead'. Same with PC gaming. It just didn't happen
over and over again.

~~~
sillysaurus2
_Even though I haven 't alluded that I think Valve isn't the future of console
gaming in any way, now that I think about it I am sure it won't be. There's a
possibility they will be a major player in console market, but I don't see
that happening any time soon. I am quite sure they will disrupt PC gaming
market once again... console gaming? no.

So if you will, we can bet on that and come back to this 5 years from now for
an 'I told you so' moment :)_

You're on! :)

