

Nintendo says this amazing Super Mario site is illegal - cheeaun
http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/17/nintendo-says-this-amazing-super-mario-site-is-illegal-heres-why-it-shouldnt-be/

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scrabble
_Creating a game like that from scratch is a lot of work, but it would be a
lot easier to do if people could start with the Full Screen Mario codebase._

There's nothing that prevents the creators from making their own thing that
people could start from. It doesn't need to be Mario.

 _Game designers could also incorporate parts of "Super Mario Brothers" as a
"mini game" within modern video games._

This also seems odd to me.

Generally I think I stand for reasonable copyright terms, but on the other
side, I never applied those terms to Mario. I can't imagine a character like
Mario being used by many companies in many games across many systems where it
is not tightly controlled by Nintendo. That is really a dreadful outcome.
Nintendo has grown the brand and character over the years and it would be
immediately diluted.

I could very easily picture a game like GTA starring Mario using a gun to
shoot goombas and koopas, while Bowser snorts crack off of Princess Peach.
That's not the kind of thing I'd like to see.

~~~
jiggy2011
Would it necessarily be such a terrible outcome? The idea of providing
protection for intellectual works is to incentivise the creation of these
works rather than to protect any particular brand from being diluted.

What would be the upshot if the character of Mario entered the public domain,
in the same way that characters from Greek mythology or Shakespeare are in the
public domain?

Nintendo might decide to expend creative effort creating a new set of
characters to figurehead their brand, this could well be a win for society at
large.

Other unaffiliated developers might then decide to take mario in interesting
new creative directions that would not have happened under Nintendo, this
could also be a win.

~~~
GhotiFish
Personally, I'm looking forward to a more official rendition of the "Mario and
Luigi are high on mushrooms" theory.

~~~
stevvooe
Didn't Nintendo already beat that theme to death?

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petercooper
How come its legal for musicians to do cover versions and pay a fee to
centralized songwriter organizations to do so, yet this doesn't exist in other
copyright spheres?

OK, having things enter the public domain would be _better_ but if it were
possible to pay a certain amount for every X pageviews of a Mario "cover
version" and that makes it legit.. that could be pretty interesting and allow
for things like this to live on safely via donations or sponsorship.

~~~
DominikR
They can cover songs because they reach an agreement with the license holders
and Nintendo obviously isn't interested in that kind of business.

I can't blame them, because Mario is one the main drivers for sales of Nintedo
consoles in the last decades.

~~~
Keyframe
Original copyright holder doesn't have to agree for you to make a cover. It's
a common courtesy though, but not legal requirement.

~~~
petercooper
A related story I found interesting at the time about Weird Al vs Lady Gaga:
[http://www.techdirt.com/articles/20110421/10431413988/weird-...](http://www.techdirt.com/articles/20110421/10431413988/weird-
al-denied-permission-to-parody-lady-gaga-releases-new-song-free-anyway.shtml)

~~~
Keyframe
That story also shows what you can and cannot do without copyright holder's
permission. If you don't have a permission, you cannot profit from your cover.
If you have a permission, you have to pay royalties for your cover to the
original author if you're exploiting your cover commercially.

~~~
gabemart
> That story also shows what you can and cannot do without copyright holder's
> permission. If you don't have a permission, you cannot profit from your
> cover. If you have a permission, you have to pay royalties for your cover to
> the original author if you're exploiting your cover commercially.

Weird Al does song parodies, not covers. AFAIK the prevailing opinion is that
his songs would be legally protected under fair use (whether released
commercially or for free) but he typically gets permission from the artists as
a courtesy.

~~~
Keyframe
You're right. It dawned on me once I have commented. Parodies are in different
legal space, so I'm not sure about commercial exploitability of it. See my
other comment, based on my experience, how regular covers are treated legally
within EU.

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Skoofoo
Many of us love the Super Mario franchise and SMB has made a huge cultural
impact, but that does not entitle people to use it as a base for their own
work.

Take inspiration from Mario and create original games!

~~~
JonnieCache
The point is, if it weren't for disney et al, SMB would be public domain in
the next couple of months.

~~~
candydance
Including the IP of the "mario" character?

~~~
stonemetal
Art yes, name probably not. I believe the name would be covered by trademark.
Trademark allows for indefinite ownership.

~~~
rejoinder
Can you really trademark a name such as Mario?

~~~
arbitrage
In the context of a video game character who happens to be a plumber from
Brooklyn, yes.

~~~
chinpokomon
And movie... or are we trying to forget that that was ever made?

~~~
rejoinder
Hoskins must have some plumbing fetish.

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benbristow
Too bad it's open-source.

[http://files.benbristow.co.uk/archive/FullScreenMario](http://files.benbristow.co.uk/archive/FullScreenMario)

~~~
garethadams
I guess you're saying that even though Nintendo say it's illegal to copy SMB,
it's still technically possible?

It's probably illegal where you live to break the lock on someone's front door
and enter their house. That doesn't mean you can say "Too bad my hammer is
stronger than their door".

To take the hyperbole further, it's illegal to murder. Too bad these humans
are so soft and squishy.

Is the point that something being easy to do has some kind of impact on its
legality? Or is this to do with how easy a law is to enforce?

~~~
benbristow
The game's decades old now. Do you think it's going to do them any financial
impact, really? They don't even sell the game anymore apart from on the Wii
store.

The only people playing it are those using downloaded ROMS on the internet
using emulators or those with the original copy they had back in the day on a
NES or NES-clone.

And by saying what I said, I'm saying 'good luck enforcing that'.

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VeejayRampay
Reminds me of Square Enix pulling the plug on what was at the time a pretty
awesome remix of Chrono Trigger. I really don't understand why any company
would choose to piss on the efforts of dedicated fans who only wish to pay
tribute to the greatest franchises. It's not like it's diminishing the sales
of the game or anything. Quite the contrary, as all the past studies about
piracy, fanart and derivatives have clearly shown.

~~~
rjbwork
Copyright is, as in many things, a "use it or lose it" kind of situation.
Unfortunate, but true. If you don't defend it today from some guy, you can't
defend it tomorrow when your corporate competitor starts selling your original
game on their digital marketplace.

~~~
gabemart
>Copyright is, as in many things, a "use it or lose it" kind of situation.
Unfortunate, but true.

I don't believe this is true to any degree. True for trademarks [1] but not
for copyright. The copyright holder is completely within their rights to turn
a blind eye to the first 99 infringements and then sue for the 100th.

[1]
[http://en.wikipedia.org/wiki/Trademark_dilution](http://en.wikipedia.org/wiki/Trademark_dilution)

------
stonemetal
_James Grimmelmann, a legal scholar at the University of Maryland, believes
Nintendo would have a strong case in court. He says the graphics and music
from the game are protected by copyright, and the levels and game mechanics
likely are as well._

To bad they didn't contact anyone familiar with copyright law or look at
copyright.gov for a few seconds. Game mechanics have never been eligible for
copyright. You can copyright the art and code but not the gameplay.

[http://www.copyright.gov/fls/fl108.html](http://www.copyright.gov/fls/fl108.html)

 _Copyright does not protect the idea for a game, its name or title, or the
method or methods for playing it. Nor does copyright protect any idea, system,
method, device, or trademark material involved in developing, merchandising,
or playing a game. Once a game has been made public, nothing in the copyright
law prevents others from developing another game based on similar principles.
Copyright protects only the particular manner of an author’s expression in
literary, artistic, or musical form._

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josephlord
Obviously it won't help where companies want to retain their copyright
longterm but I want to set a better example. I'm thinking of coming up with a
license that offers no additional rights for a limited duration and then
allows free use to emulate what would happen if copyright durations were more
sensible. I don't think it will meet the OSS definition of Open Source
although I think it should be possible to make it compatible with liberal
licenses by offering mechanisms to exclude code (snippets, files or folders)
from the licence. If you wanted you could dual license with a real OSS
license.

I'll put it on Github do a "Show HN" when I have something worth looking at.

Does anyone know of any examples of this being done? Also I've never been able
to work out whether code on Github needs to be under a license that allows
modification/distribution, it seems like as long as it can be read it can
still be copyright protected, does anybody know?

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kvinnako
Nintendo built the super mario franchise with the help of society's
infrastructure(on top of the gaint's shoulders). For that society gave them
28years of time to monetize. But lobbying changed that equation in favor of
corporations and made it 95 years. Nintendo making money or not, it's immoral
to say the least for trying to impose copyright on what is supposed to be a
public domain work. In the long run, relatively speaking society wouldn't be
as big a gaint for future inventors as it was for nintendo.

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aaronetz
I wonder where Tuper Tario Tros[1] stands from a copyright standpoint, then.
At what point would you say that a game violates copyright? Obviously Super
Mario Bros was the inspiration for a whole generation of platformer games that
came after it. What would be the minimal set of changes that will allow Full
Screen Mario to exist without violating copyright?

[1]
[http://www.newgrounds.com/portal/view/522276](http://www.newgrounds.com/portal/view/522276)
(flash required)

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captainmuon
Surely this is not causing Nintendo to loose money on SMB sales. I heard they
have to pursue copyright violations, otherwise they might risk loosing the
copyright (or did that apply only to trademarks?).

Anyway, why don't they just give that guy a very limited, non-commercial fan
license to make that game? Maybe charge him a cent or so. And have him slap on
a big "unofficial" sign. They wouldn't loose much, but it would be a big PR
gain.

~~~
pjc50
That only applies to trademarks.

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bpicolo
Lawyer in the article suggests game mechanics are copyrightable, but that is
definitely not the case. Game mechanics aren't protected by anything (and
shouldn't be). Art and music you can make the case for.

~~~
Tyrannosaurs
Just said this below. Game mechanics aren't copyrightable but the artifacts
are.

The issue is that this looks identical - if it looked different but played the
same I suspect there would be no problem.

~~~
jeena
Like The Great Giana Sisters?

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asadlionpk
I wonder if they still earn money from the original Mario. If yes than this
move against the project makes sense.

~~~
stonemetal
It is in the virtual console store on the Wii and Wii U. So it is still for
sale not sure if they are really making money on it.

