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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  1. icon
    Rikuo (profile), 18 Oct 2013 @ 11:32am

    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.

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