Nintendo Does The Nintendo: 'Mario Royale' Fan Game Becomes 'DMCA Royale'... And Is Now Dead

from the mission-accomplished? dept

I've often made the point before that Nintendo hates you, dear Nintendo fan and general gamer. Between taking down fan-made levels, fan-made games, and going to war with all the ROMs everywhere, Nintendo values an overwhelmingly tight grip on its intellectual property rights far more than the natural desire by its own fans to express their fandom. The speed and reliability of Nintendo's lawyerly involvement has become something of a legend on the internet, with folks that make these expressions of fandom often joking upon release that it's only a matter of time before the suits come calling.

This held true with Mario Royale, a delightfully simple little web game created by a fan that allowed players to play through Mario Bros. levels alongside up to 74 other simultaneous players. The classic game had never been used for this sort of thing and it was quite interesting to watch how it all worked. It's also worth noting that the game was playable for free, meaning there was no commercial aspect to it. Despite that, you all know what happened next.

Given Nintendo's litigious reputation when it comes to fan games, it's perhaps no surprise that the "game got DMCA'd," as creator InfernoPlus noted in a comment on the game's YouTube trailer over the weekend. InfernoPlus himself didn't seem all that surprised. In an interview with Vice last week,he said he "anticiapate[d]" a letter from Nintendo. "I’d say it’s [a] 50/50 [chance of attracting Nintendo's legal ire], maybe more, because it got so big all of a sudden. If [Nintendo] does, I can just re-skin it."

Now, that's precisely what's happened. Following a June 21 "DMCA Patch," the game that was Mario Royale is now DMCA Royale. While the gameplay is unchanged, the game's music, sound effects, and in-game sprites have been replaced with much more generic versions—including a new player character named "Infringio."

Beyond how clever this all is on the part of InfernoPlus, the changes made to the game are important for other reasons as well. By changing the assets to no longer be clear rips from the original Nintendo game, it should have put the game in a place where it was no longer infringing. By changing the name of the game, the characters, and the messaging around the game to focus on the fact that the original was DMCA'd by Nintendo, the game also transformed from a cool experiment into something in the realm of parody and social commentary. That last bit is important, because it should have also transformed the game into something that would pretty clearly fall under fair use.

Which is why it's odd, given both of those factors, that you also no longer can play DMCA Royale, as Nintendo's lawyers apparently issued threats over that game as well. At the URL for the game, all that is left is a message from InfernoPlus saying it had to take the new game down as well.

Unfortunately, Uncle Nintindie's lawyers have informed me that, despite my best efforts, the game still infringes their copyright.
They refused to give me specifics (I asked multiple times) but it would seem that either the level design or general mechanics are still too close to the original game.

As a result I can't just blindly change the game and leave it up. Doing so would put me at risk of further legal action. I'll likely talk in detail about the game and it's short lifespan on my youtube channel in the coming weeks.

I'm sorry about this guys. It was fun while it lasted.

It is equally unclear to me what Nintendo's continued problem with the reskinned game could be. The specific expression in the game assets that might have been copyrightable were removed. What was left was a transformative work that may have mirrored the basic game mechanics from the original Mario Bros. game, but those aren't copyrightable. On top of that, as I mentioned above, this new work seems like pretty clear fair use to me, in that it both serves as commentary on Nintendo's aggressive behavior and is also a clear parody of the original game. Were this to go to court, it's hard to see how it wouldn't result in a win for InfernoPlus.

But, given the legal war chest at Nintendo's disposal, that doesn't ultimately matter. A small developer making a game as a fan and as a cool little experiment isn't going to risk its existence to have such a legal fight. It's worth pointing out briefly here, and I'll expand on this in a separate post, that Nintendo had many other options than DMCAing this game to hell at its disposal. Why didn't it engage any of those other options?

Because Nintendo hates you, that's why.

Filed Under: copyright, dmca, dmca royale, fair use, fan games, infringio, mario, mario royale
Companies: nintendo


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  • icon
    Gary (profile), 28 Jun 2019 @ 11:47am

    Commentary

    The game was obviously transformed into a social commentary.
    Copyright, used by corporations, to stifle speech. No one can ever say "It couldn't happen," because it just did. (That's censorship via the federal government.)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jun 2019 @ 1:01pm

      Re: Commentary

      Not that I like baiting him, but I do wonder what Blue's stance on copyright as censorship is, given how he hates both government censorship and corporate control of speech...so long as they're separate concepts.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Linux Apocalypse, 28 Jun 2019 @ 3:51pm

        Who is this "Blue Balls"?

        Asks no one ever, because there's only the few long-time fanboys here.

        All like this supposed "AC" have been here years but not interested enough to make an account.

        First they LIE about person's view, which is to tacitly BEG for dissenter to show up so can ad hom to make more comments, because they've nothing to say on topic, and without a target at best blather.

        Then when dissent does show, what's the first thing done? -- To attack and censor away! (They lie and call that "hiding".) -- Now, if comments truly should be out of sight because offensive and they were adults, wouldn't dignify with reply. The ad hom attack is the KEY part for fanboys, AND for site because makes look appear a bit active. -- So this explicit sheer baiting is frequent.

        That's the game here. After years, neither site nor fanboys have even noticed that their nastiness and trite stupidity doesn't draw nor keep readers. -- Let alone noticed that the counter-game works so well that now when dissent doesn't show, site and fanboys look their worst!

        The real fun is that one can't even wise them up, no matter how obvious and explicit.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Jun 2019 @ 4:09pm

          Re: Who is this "Blue Balls"?

          All like this supposed "AC" have been here years but not interested enough to make an account.

          Hey now... careful who you generalize into your diatribe!

          I've been here for years and intentionally don't create an account because I prefer to be anonymous. I like the privacy, and it provides me a layer of freedom that I would not otherwise have. I'm sure other ACs are in similar situations.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Jun 2019 @ 4:09pm

          Re: Who is this "Blue Balls"?

          None of that whiny bullshit tells us how you feel about copyright as censorship. I have to assume you approve of it in every instance, including corporations using copyright to censor.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Jun 2019 @ 5:11pm

          Re: Who is this "Blue Balls"?

          First they LIE about person's view, which is to tacitly BEG for dissenter to show up so can ad hom to make more comments, because they've nothing to say on topic, and without a target at best blather.

          Holy shit, where the fuck did you learn english? My 2 year old pit bull can speak better english than you, and he's a dog!!

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Jun 2019 @ 5:54pm

          Re:

          Whined the Prenda fanboy.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 1 Jul 2019 @ 2:34pm

          Re: Who is this "Blue Balls"?

          You seem to have been posting here for months and haven't created an account... so clearly there is at least one reason why people would act as you do.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jun 2019 @ 12:32pm

    It's also worth noting that the game was playable for free, meaning there was no commercial aspect to it.

    It doesn't mean that. Many free-to-play games are commercial.

    It is equally unclear to me what Nintendo's continued problem with the reskinned game could be. The specific expression in the game assets that might have been copyrightable were removed. What was left was a transformative work that may have mirrored the basic game mechanics from the original Mario Bros. game, but those aren't copyrightable.

    See also: The Great Giana Sisters and the famously litigious Tetris Company; the latter actually got a court ruling for infringement.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jun 2019 @ 12:38pm

    simple jealousy on the part of Nintendo! why the hell anyone buys their stuff, considering the disgraceful way it treats customers, even those who are ardent fans, i'll never understand! Nintendo needs to be taught a lesson and one that really hurts it; in the pocket is the best way for that!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jun 2019 @ 12:46pm

    It is equally unclear to me what Nintendo's continued problem with the reskinned game could be.

    People playing a game and not paying Nintmdo for the pleasure.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 28 Jun 2019 @ 12:48pm

      Re:

      Exactly, any games that don't belong to Nintendo should be shut down.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Jun 2019 @ 2:01pm

        Re: Re:

        That's pretty much it.

        Nintendo is ridiculous with their copyright enforcement. Taking AD revenue from YouTubers, banning fan-content they didn't explicitly permit, going after YouTubers for talking about things they dislike, Harassing hackers who try to help them at work, etc. If it wasn't for nostalgia, and the fact their primary audience is kids, they'd be in the same boat as EA, Ubisoft, and Epic Games at this point.

        Honestly, it's why I don't feel bad when their consoles get hacked into oblivion. If anything it's a small victory that says "You might try to tighten your grip, but you keep losing anyway."

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Jun 2019 @ 2:15pm

          Re: Re: Re:

          Let's not forget the people archiving older games, which is literally saving videogame history from a permanent "game over", so to speak.

          reply to this | link to this | view in chronology ]

  • identicon
    Damien, 28 Jun 2019 @ 12:46pm

    "Uncle Nintindie's lawyers have informed me that, despite my best efforts, the game still infringes their copyright.
    They refused to give me specifics (I asked multiple times)"

    They refused to give specifics because it's plain as day that, without using Nintendo art assets, nothing in the game in question actually infringes their copyrights. What they're doing is essentially a SLAPP throw down.

    reply to this | link to this | view in chronology ]

    • identicon
      Paul Brinker, 28 Jun 2019 @ 7:29pm

      Re:

      Technically what he did was an asset swap, the underlying placement of the assets on the game grid were still the same. That said the lawyers had no idea how well an argument like this would hold up in court as he only copied the relative position of game elements to each other.

      It came down to "It looks like my game level!" but it was not copied as much as inspired (assuming he did not import the level from the rom).

      That said, games only have limited copyrightability, you can copyright the rules as written for Monopoly but you cant go after a clone.

      Ultimately however, Nintendo would bankrupt him without ever telling him what's wrong.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 28 Jun 2019 @ 2:53pm

    No one hates you like Nintendo

    No company does anti-advertising quite like Nintendo.

    It's one thing to let your greed get the better of you occasionally(or constantly, looking at you EA...), and/or try some new in-game or advertising trick that backfires, but to go out of your way to make it clear just how much contempt you hold your own customers in... that takes Nintendo.

    It's funny really, for all that they apparently put out some pretty good games Nintendo has been on the 'Never buy' list right alongside the likes of EA for years now, and it's entirely thanks to their consistently hostile stance towards their customers and biggest fans, a hostility that even EA, for all their scummy business practices, doesn't seem to match.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jun 2019 @ 8:35pm

      Re: No one hates you like Nintendo

      The reason for that being EA's tactics are essentially always within the sight of their audience. Most people that decide to pick up a game from EA knows the kind of behavior that the company has done in the past so they have their eyes open for the newest antics while trying to see if it will outweigh the good parts of the game.

      Nintendo however has a different target audience. They like to push the idea of being family oriented/friendly. They also like to push toward the idea of games that you can pick up and play while being free to drop out when you need to. Those concepts align to the target audience of children, parents of said children, and the light casual player. None of those three groups are likely to look into or care about the copyright shenanigans behind the scenes.

      reply to this | link to this | view in chronology ]

  • identicon
    Châu, 28 Jun 2019 @ 5:58pm

    Super Tux Royale

    I try use link above contact InfernoPlus (no contact link at their web page). I want tell them add this feature to SuperTux.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jun 2019 @ 7:14am

    Its free to play ,there ,s no loot box,s or dlc.

    So he may be right, all the nintendo type graphics have been replaced ,
    with generic icons or animations .
    but he cannot afford to go to court.
    So its easier to just take the game down .
    nintendo does not own the concept of platforming or games based on jumping from block to block or jumping on enemys to defeat them.
    Theres nothing in the new game that could be copyrighted
    or that infringes on nintendo,s ip.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jun 2019 @ 7:49am

    Nintendo has sued elderly grandmothers, toddlers having birthday parties and pretty much ANYONE that likes their games.

    It's like Nintendo has a deathwish, it's going to keep making mario games but it's bored and wants out of the market.

    Which would explain the pisspoor build quality and useability of the switch, as well as it's using technology thats many MANY years out of date before it was even released.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    hooner145 (profile), 30 Jun 2019 @ 8:13pm

    KROGER CUSTOMER FEEDBACK SURVEY

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    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 1 Jul 2019 @ 10:53am

    I wish I had the programming skill to write games. I'd make one where you control a character called Nentindo on a screen full of programmers who are turning out video games. The goal of the game would be to run around and stomp the games into oblivion as fast as possible.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jul 2019 @ 6:56pm

    Why should they let people use their property in a way they do not want it used? Can't twitter stop someone from using their property in a way they don't like it to be used? Or for any reason for that matter?

    Their company. Their property. The end.

    reply to this | link to this | view in chronology ]


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