Nintendo says this amazing Super Mario site is illegal | Hacker News Reader

Nintendo says this amazing Super Mario site is illegal

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30 pointscheeaun51 comments

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.

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.

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

Didn't Nintendo already beat that theme to death?

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.

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.

Not entirely,for music in the US there is compulsory licensing in the law. The orignal copyright owner does not need to agree as long as the covering musician complies with the terms of the compulsory license laws.

http://en.wikipedia.org/wiki/Compulsory_license

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

A related story I found interesting at the time about Weird Al vs Lady Gaga: http://www.techdirt.com/articles/20110421/10431413988/weird-...

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.

> 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.

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.

Actually untrue in germany at least. There's a compulsory license requirement in the german copyright law. You'll have to pay a share of your earnings for that license, but it can't be denied to you.

True in Germany as well. You're just mixing the two separate issues. We did a documentary a year ago for EU market and we had to commission a cover of a song that would be used as an intro for said documentary. It was explained to me that we don't need a permission to commission (make) a cover, and band that made the cover can perform that in their concerts, but we can't use it for commercial purpose (documentary) without asking for permission from original author since it's essentially the same as with original work. What we had to do, legally (and what we did), was to secure rights to use the original song for our commercial project (author and publisher waived royalties though, but doesn't matter), and then we also, in parallel, commissioned a cover from some band and we secured rights to that cover so we can use it.

In a nutshell, cover is treated (it seems) like a reproduction. For example chopin's music is now royalty free and accessible for any purpose, but you need a reproduction rights from whoever has performed that.

I am sure something is lost here in translation since english is not my first language, but I think you can get a clear idea from it.

The cover certainly can be used for commercial purposes: See the debate around Heino and his Cover-Album of Tote Hosen Songs. In your example the band was allowed to perform it in public (commercial usage here) and they could probably have pressed a recording and sold it. You need a license and need to pay royalties but that license cannot be denied to you (basically registering the cover with the GEMA is sufficient). Note that this applies to strict cover-versions only and only for songs registered with the GEMA - no major edits permitted.

If that still holds true if the cover is used in a documentary is a separate question. Also note that sampling is not covered by that paragraph (see Metall auf Metall).

You can copy a game in terms of it's rules and so on without any issues but the artifacts involved can't be copied.

So you could create a clone of Monopoly which plays identically so long as you draw your own board, design your own pieces write the wording of rules yourself, give it your own name and so on.

I suspect the issue here is that it looks (and sounds?) identical.

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!

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

Including the IP of the "mario" character?

I can't answer that, but my above point is the premise of the linked article.

Nintendo is reaching disney-level reliance on their cartoon hero, (probably worse) so I wouldn't be surprised to see them becoming another copyright-extending villain over the coming decades as they struggle to survive with their seeming lack of creativity.

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

Can you really trademark a name such as Mario?

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

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

Hoskins must have some plumbing fetish.

Sure, Apple has trademarked Apple. MS has trademarked Windows. Why not Mario? It would have to be limited in use to video games, electronic entertainment, or whatever the narrowest category for such things there is.

What about "maroi"?

Even if it were legal, it would not necessarily be ethical. People incorrectly assume that when something is ubiquitous, it should belong to the public.

Super Mario is not something that has always existed or would eventually exist, it is a creative work that became successful through Nintendo's efforts. There is nothing wrong with Nintendo wanting to reserve their rights to it.

That is not to say that Mario fan works are not enjoyable - there are awesome Mario ROM hacks and Flash animations out there - but that people shouldn't feel entitled to the rights to make them and to complain when Nintendo takes legal action.

Too bad it's open-source.

http://files.benbristow.co.uk/archive/FullScreenMario

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?

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'.

It can also be forked on Github: https://github.com/Diogenesthecynic/FullScreenMario

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.

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.

>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

Can't you just allow a fan site to use your copyrighted stuff with a careful contract, for a ridiculous fee for them? And deny that to corporate leeches?

Right now I'm listening to "Chronojigga" a Jay-Z/Chronotrigger mix. IT's great.

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

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.

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?

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.

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 (flash required)

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.

That only applies to trademarks.

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.

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.

Like The Great Giana Sisters?

In theory wouldn't game mechanics be patentable? I can't think of any case of this though.

A good example is Capcom suing Data East over Fighter's History being too similar to Street Fighter. Capcom lost the lawsuit.

http://www.patentarcade.com/2005/08/case-capcom-v-data-east-...

> Game mechanics aren't protected by anything

I fear the US case law does not agree with this statement. (And we are talking about US in this specific case.)

It would be quite easy to describe game mechanics as the game counterpart to novels' plot. Now, the US have a tradition of considering certain aspects of the plots are copyrightable [1], for example certain non-stock abilities of characters like "having the ability to grow when receiving a powerup, shrinking when touched by enemies, being able to kill enemies by jumping over them but being killed by them if touched by them". Obviously this is a very grey area, but one doesn't get to easily dismiss the problem because "they shouldn't be".

[1] http://www.copyrightcodex.com/infringement/16-infringement-s...

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

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.

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