Nintendo Shuts Down Recreation Of Original Super Mario Bros. For No Reason Other Than It Can

from the 28-years-later dept

I’ll never forget the Christmas party my grade school threw when I attended it. Not because of the food. Not because of the friends. No, I’ll always remember it because I won a brand new in-the-box Nintendo Entertainment System in the raffle. And when we went home, my father plugged it in, allowed me to play the included Super Mario Bros. cartridge for five minutes before insisting it was time for bed. But those five minutes were everything to me that night and they spawned what would be the next 25 years of passion for gaming, for my appreciation of it as an art form, and for what has probably been thousands of dollars spent in total.

So, you can imagine my elation when I heard about FullScreenMario, a project begun by a college kid to not only recreate the original hallmark of home-gaming, but also to allow fans to expand upon the original and build their own levels, built on the latest web standards, and open sourcing the whole thing. Unfortunately, as you’ve probably already expected, Nintendo saw my elation, my joy, and promptly crapped all over it.

“Nintendo respects the intellectual property rights of other companies, and in turn expects others to respect ours as well,” Nintendo said in an e-mailed statement. “Nintendo is seeking the removal of the content, as we vigorously protect against infringement of our intellectual property rights.”

Now, nobody can doubt Nintendo when they get all puffy chested about how vigorously they protect their IP. But why is this even an option? How far gone are we down the intellectual property rabbit hole when projects like this, which people love, and which don’t (in any way) harm the original offering, are shuttered? Because whatever your thoughts about copyright in general, if there is one industry for which the never ending copyright extensions make zero sense, it’s for video games. As Tim Lee notes:

When the United States was founded, the maximum copyright term was 28 years. “Super Mario Brothers” was registered with the copyright office in January 1986, so if copyrights still lasted for 28 years from the date of registration, the game would be due to expire in about three months. Then anyone would be free to re-create the game, as Full Screen Mario does, or to create new games based on its groundbreaking characters, levels and music.

If copyright terms were shorter, old video games could find a new, emulated life when their copyrights expire, just as the Gutenberg project has made thousands of books published before 1923 freely available online. That’s especially important because old consoles wear out much faster than old books do. If you find a book published in 1980, chances are you’ll be able to read it without much difficulty. But if you find an old Atari video game cartridge, you might struggle to find the Atari 2600 console required to play it.

In general, “might struggle” might as well be replaced with “can’t.” Sure, Nintendo and other companies are still building off of franchises from days gone by. So what? Recreating the original Super Mario Bros. doesn’t harm any of that. Allowing users to build their own levels and engage in something like a Minecraft community would only build the brand further. We can certainly say that Nintendo would be better off not shutting this project down, say by working directly with the creator, but that shouldn’t even be a question. We’re at the 28 year mark for Super Mario Bros. Imagine how stupid this is all going to look in 95 years. As the article notes, even those who think gaming companies need some copyright protection should be able to see how ridiculous current lengths are.

But don’t video game companies need copyright protection to encourage them to produce new video games? Of course they need some copyright protection, but 28 years is plenty. Most games make the vast majority of their revenue in the first few years after release. Only a tiny majority of mega-hits such as Super Mario Brothers are still commercially significant after 28 years. And those games have already made their investors’ money back many times over. We’ve had long copyright terms for so long it’s hard to imagine what the world would look like without them. But copyright is supposed to be a bargain between creators and the public: Creators get a monopoly for a limited number of years, and after that, the public gets to use their works for free. But copyright terms are now so long that most of us will die before the videogames of our childhoods fall into the public domain.

So thanks again, copyright, for standing in the way of us all having a little harmless fun. It makes me mad enough to stomp a turtle.

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Comments on “Nintendo Shuts Down Recreation Of Original Super Mario Bros. For No Reason Other Than It Can”

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65 Comments
Rikuo (profile) says:

Re: Re:

I counter with the point that Nintendo’s selling of SMB on the Virtual Console is for use on proprietary Nintendo hardware i.e. the DS, 3DS, 2DS, Wii and Wii U. The recreation talked about in this article was for use in a web browser, which, quite frankly, would never be used on Nintendo hardware unless they were jailbroken.
There are people who own Nintendo consoles and would like to play the original game on them, but also like to play a browser version while on the go on their smartphones. Such things wouldn’t be competing. Quite a few times myself, I’ve played free games, then gone on to purchase them.

Anonymous Coward says:

Re: Re: Re:2 Re:

You miss the point. Your logic is basically “As long as something is published on a different platform it’s ok”. Which is not how copyright works. Regardless of what platform something is published on, if you publish an identical version of it on a different platform, you’re still competing with it and in violation of the copyright.

Otherwise Microsoft and Sony would cheerfully be approving copies of Nintendo games for sale on their console because “Hey, it’s not your propriety hardware so tough luck.”

Rikuo (profile) says:

Re: Re: Re:3 Re:

No. My point is that the official version of SMB that Nintendo is selling is able to be used only on their hardware. They don’t sell or service at all the smartphone market, the laptop market or the desktop/tablet market (less said about the Wii U’s tablet controller the better). While yes, the recreation in this article does violate Nintendo’s copyrights, as per the law, I argue that it does NOT compete with Nintendo’s own offering. It would be different if they sold SMB on PC and someone recreated it themselves; then, Nintendo can make a legitimate legal argument that the recreation on PC competes with their own paid for version.
To put it in context, think of this as like the very valid argument of someone torrenting a movie that is not for sale at all in their country (whether disc/download/stream). While they are violating the copyright (as long as that country is beholden to the Berne Convention, if I understand things correctly), I don’t see how the movie studio can claim that the torrent competes with their paid for product.

Sam says:

Re: Re: Re:4 Re:

It DOES though. Since usually you need to BUY the hardware and the game to play it.

It is in direct competition! Instead of needing to buy a game and the hardware, people get it for free. And that’s competition. That’s exactly what they said also.

And the movie is a bad example. You CAN buy the game AND the hardware. With the movie you just can’t.

It competes with peoples need to buy both the hardware and the game if they want to play it.

Anonymous Coward says:

Re: The legal way to do this

That is absolutely a possibility. but the question is: How did the programmer get the artwork in the first place? I would imagine the answer is that it has been copied in some shape or form. Recreation the art to a high enough degree to pass as a different game could be very labourious!

Giana Sisters comes to mind as an example even though the game developers gave up on selling the game after Nintendo approached them. To me that game had sufficient differences from Super Mario Bros. to pass as a different game, but in the end, the call of taking the money you do not have by going to court is on Nintendo if you ignore or resist.

Rekrul says:

Re: The legal way to do this

He could do it the time-honored way: change the names & artwork so they don’t violate the copyright (“Super Duper Bario Bros.”). Inevitably, one or more fans will produce an extension that makes the clone complete.

Rainbow Arts tried that with The Great Giana Sisters back in 1987. Didn’t keep Nintendo from threatening them and having the game pulled from stores.

John Fenderson (profile) says:

Re: Re: The legal way to do this

Yes, it doesn’t guarantee commercial success, only legality. Those are two different things.

However, in this case, it’s not a commercial product and there are no stores for it to be pulled from. The only risk on his part is that he might have to move where he hosts the source if Nintendo keeps scaring hosts into kicking him out.

Of course, he already released the source, so it’s not like his work is going to vanish anyway. So I guess it’s an academic point.

Rekrul says:

Re: Re: Re: The legal way to do this

I’ve always like Giana Sisters better. Especially the superb music.

Both Giana Sisters and Super Mario Brothers frustrated me with their inertia-based control method. I was constantly falling short because I didn’t get enough of a running start before jumping, or sliding off blocks because I didn’t stop quickly enough. It was like the whole game had ice on the ground and you had to work to get traction.

Anonymous Coward says:

Confused...

Is this a recreation or an emulation? Does it use the original game data in some way?

I have to admit, based on the included picture, it appears to be an identical recreation, pixel-for-pixel, which certainly delves into copyright territory, as the artwork alone is being copied bit for bit.

The bigger problem is probably the trademark infringement – I mean can anyone just throw a “Super Mario” game out there and expect not to get reamed for trademark infringement? The “(C)1985 NINTENDO” certainly doesn’t help their case…

Anyhow, as much as I’d like to say this *should* be possible, and that copyright terms are wayyy too long, these guys had it coming.

Greevar (profile) says:

Re: Confused...

“… these guys had it coming.”

No, they didn’t have it coming. They should have been able to do this without Nintendo’s blessing. Nintendo had their chance to profit from this game and they did, massively. They don’t need to anymore; they don’t deserve it. This goes against everything copyright was supposed to promote. The point is to encourage the constant creation of new works, not to shit one golden egg and sit on it indefinitely.

Copyright, if it must exist, shouldn’t last any longer than it takes to develop and market a new creative work. Such an example would be that if the peak market cycle of a movie is 5-7 years, hypothetically, the copyright should only last 5-7 years. This puts positive pressure on authors and artists to keep creating in order to stay ahead of the expiration of copyrights so they always have exclusive works they can profit from. This, I think, is more “balanced” than what we keep hearing about how to “balance” copyright from the talking heads’ perspective.

anonymouse says:

Re: Re: Confused...

I predict that eventually this is the argument that will be used to change copyright laws, there is no reason to hold a copyright on something after lets say 10 years or less, after 10 years let the copyrighted work be used for good not sit stagnating in some greedy bankers vault so that nobody can improve on it.

The Real Michael says:

Re: Re: Confused...

I agree almost entirely with you, with the exception that the Mario IP itself should belong to Nintendo. I think 10 years is a more than respectable time-frame for the copyright of a video game in and of itself. Perpetual copyright serves no valid purpose besides granting a special privilege to corporate interests, which in turn fosters creative stagnation and (artificially) locking down markets.

Nintendo profited extensively off the original Super Mario Bros, so this shut down strikes me as being motivated by spite, even if it is a shameless copy of the original game. Then again, this is Nintendo we’re talking about: incapable of going a single console generation without resorting to antiquated franchises and hawking wares from the 80’s and 90’s.

Greevar (profile) says:

Re: Re: Re: Confused...

No, it shouldn’t. Miyamoto himself admitted that everything in Mario Bros. was based on Alice In Wonderland (i.e. eat mushrooms to get big, rabbit hole to another world/pipe to another world, etc.). So how does Mario get to be Nintendo’s IP, when they built it from another work so heavily? You can’t keep drawing from the public well and fail to replenish it. It will eventually run dry. So as with “IP” belonging solely to the creator for all time, they are taking from free and shared resources, but never replenishing them in kind. Content owners are all about taking what they can get away with and then forming business and political alliances so they can stop anyone else from doing the same to them. They’re all about a double standard. They think they can take all they want and exploit it, but point fingers and scream “theft” when others do the same damn thing.

The Real Michael says:

Re: Re: Re:2 Confused...

First, the IP shouldn’t belong to Nintendo forever, I would agree, but it should last a bit longer than copyright. Maybe 25 years with a one-time renewal opportunity. Second, art doesn’t exist in a vaccuum; everything is derivative of something or another, but that’s not to be confused with making a 1:1 copy of something.

As far as corporate entities forming political alliances (i.e. lobbying), it needs to stop, but that would require reform. Politicians aren’t going to compromise their free pot of gold without a fight.

Greevar (profile) says:

Re: Re: Re:3 Confused...

You’re confusing copyright with trademark. Nintendo can continue to use Mario as their exclusive mark and still relinquish the copyright to it. As long as you don’t use the trademark to mislead people to think it was made by Nintendo, then you can make as many Mario games and Mario remakes as you like.

As far as this project is concerned, I see it as an attempt to preserve a piece of culture and protect it from being lost to time and age.

jas (profile) says:

Re: Re: Confused...

Agree that copyright terms are ridiculously long.
“The point is to encourage the constant creation of new works, not to shit one golden egg and sit on it indefinitely”
While I understand the point of this project was to make the game available in a different format, it is hardly “creating a new work”
It would be cool if Nintendo would just get on board with the guy though πŸ™

out_of_the_blue says:

"my appreciation of it as an art form" -- OY.

And you even admit game playing due to childhood imprinting. You squeeze out silliness as publicly as possible, with all the self-awareness of a puppy crapping on the kitchen floor.

“It makes me mad enough to stomp a turtle.” — You seem to have a tendency to misplaced violence.

Fin says:

I can see Nintendo's point....kinda

As others have said, Super Mario is still selling so i do see Nintendo’s point, although i don’t agree with there stance.

But surely this is a strong case for re-registration of copyright works after say 10 years, add a fee to re-register to ensure companies don’t do it willynilly and that should solve the problem.

Creators get to keep their rights and those who wish to develop a games narrative of universe can do if companies abandon their work (as they effectively do now)

John Fenderson (profile) says:

Re: Re: Re: I can see Nintendo's point....kinda

I would argue that since the purpose of copyright is stated in the constitution, any law implementing it that does not adhere to that purpose is unconstitutional. As presented in the constitution, copyright is a sort of deal: you get exclusive rights for a limited time in exchange for the public getting to own it after the limited time passes.

Rekrul says:

Re: Re: Re:2 I can see Nintendo's point....kinda

I would argue that since the purpose of copyright is stated in the constitution, any law implementing it that does not adhere to that purpose is unconstitutional. As presented in the constitution, copyright is a sort of deal: you get exclusive rights for a limited time in exchange for the public getting to own it after the limited time passes.

Unfortunately, nobody pays any attention to the Constitution any more.

Anonymous Coward says:

Re: Re: I can see Nintendo's point....kinda

I’m OK with frequent (~5 year) copyright re-registrations, with increasing fees with each renewal. That way companies can keep renewing a copyright for as long as they think they will profit from it, but there is a strong incentive to lets the copyrights lapse within a reasonable time.

I expect that most works would be renewed once and then allowed to become public domain as they become unprofitable.

Anonymous Coward says:

Re: Re: Re: I can see Nintendo's point....kinda

I don’t think that would work as well as you think. I would expect that Disney for example would cheerfully pay a million dollars every 5 years to renew the copyright on Mickey Mouse. It’d be really hard to set fees that struck an appropriate balance between big corporations, and smaller companies and individuals.

DCX2 says:

Re: Re: Re:2 I can see Nintendo's point....kinda

It’s not a million every five years. In the next five years, it would be 2 mil. And five years later, 4 mil.

At some point, the cost of the registration fee will exceed the profit from maintaining the copyright. The more popular a franchise, the longer the copyright can last.

Rikuo (profile) says:

Re: Re: Re:3 I can see Nintendo's point....kinda

This is presupposing that the copyright cartels are interested solely in profit. As their actions in recent years have indicated, they are willing to try and maintain control over their copyrights at the expense of very obvious methods of income or profit. I wouldn’t be surprised if certain movie or game studios, under a system like yours, would constantly pay the fee, even when the evidence that loosening their grip is far better for everyone, them included, is screaming in their face.

Anonymous Coward says:

Re: Re: Re:3 I can see Nintendo's point....kinda

A quick check says that the current copyright registration fees top out at around $220 for a single work. At doubling every five years, it would take 75 years to get up to a measly $7,208,960 and 90 years to hit $57,671,680, 95 years to $115,343,360 and 100 years to hit $230,686,720.

Yes that will add up for multiple works, but the point is that it’ll take quite some time for that to become prohibitive for big corporations, particularly ones hellbent on protecting a core property.

It might actually harm creativity as smaller companies and individuals will have a more difficult time renewing copyright, and everyone will be more inclined to push just a handful of properties instead of having as broad a library of works as possible. The first company that can’t keep up with the renewals immediately gets their work cannibalized by other companies that can keep up longer. All told it’d be quite the mess.

You’d really be much better off reducing copyright to 30 years or life of the creator, whichever is longer. If copyright is originated by, or transfered to a corporation, just 30 years. The length is arbitrary, but creators would control something as long as they are alive, and when the creator being alive and in control of his creation was not a factor, would provide ample time for people to do what they wanted with it before it passed into public domain.

anonymouse says:

Big Business

The only problem is that it is too expensive to make a fair use claim, if the courts made the cost under $10 000 then the copyright holders would not be spending so much and the developer could get some funding from those that support him.

Sadly everything involving the law and copyright is skewed in the favour of copyright holders in every way.

But i redict a change when the first case comes to court pointing out the fact that copyright is holding back innovation.

crade (profile) says:

They shut down another one recently as well
“Princess Rescue” was a game very similar to super mario bros painstakingly recreated as an Atari 2600 game. It was like a bleedin masterpeice for an Atari game. But Nintendo shut them down too.
http://www.polygon.com/2013/7/16/4528818/princess-rescue-super-mario-bros-atari-2600

What came out of it? Idiots think they have the right to control ideas. Yay.

Nick (profile) says:

My father, long time programmer and recently interested in app designing, has been asking around for ideas. Looking at me (just stepping into app design / programming myself) playing my games, he occasionally digs into our old stockpiles of ATARI 2600 and AMIGA and TI game consoles we still have stashed, looks at the cartridges, and asks me if people would go for old collections of these games, recreated to run on new phones.

No matter how many times I keep telling him, he just doesn’t seem to grasp the idea that something that old, by companies long since dead, would be a legal minefield of trouble if we even thought of making a game that LOOKS like one of them – let alone is a faithful recreation – let alone is a flat out collection of all the old games.

It’s just more proof that your average Joe just doesn’t know/believe that old stuff that has left our minds decades ago is STILL locked behind copyright and will be for years to come.

Rikuo (profile) says:

Re: Re:

Anyone else here a fan of LinusTechTips? If not, he’s a Youtuber who does videos of tech product unboxings and tech guides and whatnot. In the last few months, he started his own weekly show, called the WAN Show, which is all about tech news from the past week. At the end of each show (at least on the earlier ones, his show is infamous for having technical issues on every episode) Linus would have an after-party with his right hand man, Slyck, of them playing old Nintendo games. To try and keep them in the legal clear, anytime they’d mention changing games or fixing problems, they’d pretend they were using an actual console, but it’s obvious they were using ZSnes, an emulator for Windows. I found that both hilarious and ridiculous.

Anonymous Coward says:

anything to exert their ‘power over the customers’. Nintendo are just doing similar to Sony. they want the people to keep using their stuff but it has to be used how the maker says, not how the person that passed hard earned cash over the counter and became the owner of the item! or, as some would say, all that the payer did was buy the right to take it home, not to do as they want. it was a permanent rental only! fucking cheek!

Anonymous Coward says:

10 years is plenty long for a video game copyright

Videogames shouldn’t be protected after 10 years. By that time, especially non-PC games, it’ll be difficult to get them to run with the game system long outdated.

Even PC games have trouble with newer computers running faster then expected.

Plus, if people start playing and loving your old video game, that’s a market opportunity for an updated sequel for you.

Nick (profile) says:

Re: 10 years is plenty long for a video game copyright

Notable releases in 2003:

Wind Waker
BF1942: Secret Weapons expansion
Warcaft III: Frozen Throne
Star Wars: KOTOR
Homeworld 2
Beyond Good & Evil
Prince of Persia: The Sands of Time
Mario & Luigi: Superstar Saga
Mario Kart: Double Dash!!
Pokemon Ruby/Sapphire internationally

If only games had a 10 year copyright limit.

Erik Grant says:

I will never understand companies that do this sort of thing, and Nintendo is easily one of the worst offenders. If I recall correctly, they even shut down a youtube channel streaming a SSMB championship game.

Nintendo is stuck in an old business model where everything is closed and the public can just keep it’s grubby little hands off of Nintendo’s stuff.

Trouble is, they are missing out on the paradigm shift of modern gaming. User created content is the gold mine of the future. MOBAs? Created in Warcraft 3. Minecraft? Loves user created content. Mods for Arma, mods for Half-life…. the companies make the most money when they embrace these kinds of things. Nintendo should have bought them, not shut them down.

Sadly, though these shifts are hurting Nintendo, it will probably never be enough to make them change. As long as they can sell another version of Mario, Metroid, or Pokemon, they aren’t going to hurt for money.

Rekrul says:

I guess I’m the exception because I’ve never really cared for SMB. I find the inertia based control method frustrating. You can’t just jump over something from a standstill, you have to move back to the left, so that you can run to the right and build up enough speed to make the jump. Otherwise you fall short and die. Then when you try to land on a single block, you end up sliding off.

ShellMG (profile) says:

Tim, I think we all have those galvanizing moments as kids, and they root themselves in our memory (sorry!). Mine was in a theatre, watching yellow letters scroll toward the top of the movie screen on a star field. I was 11 when Star Wars was playing for the first time in 1977.

There were so many long, dry, empty years between then and Episodes 1-3, including the Energizer Bunny commercial with Darth Vader. Yes, let’s make a fangirl’s head explode decades later…

Now that it’s been bought by the House of Mouse…talk about conflicted.

I hope Mario, Luigi and the others in the Marioverse live on in spite of this takedown.

Cyber Killer (user link) says:

Why not help FLOSS instead?

What baffles me is why people keep on making stuff with those proprietary franchises? There are many free software Mario clones (Super Tux and Secret Maryo Chronicles to name a few), where a new contributor would be very welcome. No big companies there who can kill your project, etc. It only looks a bit different and has some minor changes and improvements, but it’s the same game.

If Nintendo doesn’t want to have their fans, then the fans should take a hint and become fans of something else (but similar).

Carlos Sol?s a.k.a. ArkBlitz (in the rest of the I (profile) says:

Re: Why not help FLOSS instead?

Agreed. Projects like Secret Maryo Chronicles (a libre replacement of Mario Bros.), OpenSurge (a replacement of Sonic), TuxKart (Mario Kart), 0 A.D. (Age of Empires), StepMania (DDR/Pump It Up), and several others have been able to liberate the gamestyle of their original games while using unique and original characters and scenarios.

raindog469 (profile) says:

Re: Why not help FLOSS instead?

This is free software, not proprietary. I assume that now that they’ve gotten legal threats, they’ll strip out the assets and put in some original art. But the code is free regardless.

https://github.com/Diogenesthecynic/FullScreenMario

And they didn’t just throw it up there after getting the nastygram. It’s been there since January. If you’re going to make a tribute game, this is how to do it — put the source out there so that if you do infringe, people can take your code and use it to make something non-infringing.

As for why they didn’t contribute code to SMC or Supertux, I’m guessing the reason is that they wanted to make a HTML5 game. Those other two are both C/C++-based and can’t be played on the web (unless someone got them running under NaCl and I just haven’t found it yet).

I’m still able to play the game without a problem at fullscreenmario.com . For that matter, every mention I’ve found of the supposed shutdown eventually links back to that Washington Post article. I question whether this is even news.

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