Dear Nintendo: Here Are Some Ways You Could Be A Little More Cool, Man

from the take-a-breath dept

We were just talking through yet another instance showing that Nintendo hates its own fans, in this case regarding a story about a cool fan-made web game that was essentially a 2D Mario Bros. battle royale game. In that post, I mentioned that Nintendo's lawyerly ways have become so infamously legendary as this point to be the punchline to every announcement for a fan-game that in any way involves Nintendo properties. The battle royale game is obviously not alone in this. And, given the many other options at its disposal, it remains something of a mystery why Nintendo continues to insist on playing the jerk at every turn.

And I'm not the only one wondering, it seems, as Kotaku has picked this theme up and written a decent post asking why Nintendo acts this way as well.

Nintendo needs to read the room here and realise there’s a big difference between a pile of pirated 3DS cartridges at a market stall and a loving, non-commercial Pokémon game made by fans, for fans. These games are tribute, not competition. Mario Battle Royale, the 100-player take on Super Mario Bros.that had to change its name last week to DMCA Royale in honour of Nintendo’s legal threats, was never going to cannabalize sales of Super Mario Maker 2. Likewise, Breath of the NES, another recent and promising fan project that was turning Breath of the Wild into a retro top-down Zelda game, was never going to stop a Nintendo fan from preordering Link’s Awakening.

This paragraph does a decent job of pointing out what should be obvious to Nintendo: fan-games are not a threat. Instead, fan-games are the expression of fandom and nothing more. If anything, fan-games only enhance the market for a gaming company.

But, wait, you say, doesn't a company like Nintendo have to enforce its IP rights or lose them? Kinda-sorta, and Kotaku makes this same overly simplistic mistake.

It’s easy to blame these lawyers, as though they’re out for nothing else than to spoil our fun, but the reality is that they have a job to do. In their eyes, enforcing Nintendo’s copyright means enforcing it, because were Nintendo to get slack and start letting every little product and service use their characters without permission, then (or at least the legal theory goes) it gets harder to defend the company’s ownership of them should they need to take a bigger product or service to court.

I can't be certain, but this reads like someone that is confusing copyright and trademark law. In trademark law, there is a requirement that the holder enforce their trademark when the potential for infringement or confusion exists. If they do not, they risk allowing their mark to become generic. In copyright law, the rightsholder has more options. It is true that the failure to protect a copyright does risk interpretation in future litigation of an implied license being offered, but it's far less black and white compared with trademark law. In addition, rightsholders like Nintendo have tons of options to officially sanction and cheaply, or even freely, license a work so as not to risk an implied license.

To its credit, Kotaku makes this point.

Better yet, Nintendo could take a look at what some of their biggest competitors are doing in the same space. For years now, a dedicated group ofHalo fans have been building an all-new game called Installation 01. The project eventually attracted the attention of Microsoft, and do you know what Microsoft did?

They didn’t send in the lawyers. They didn’t get the game shut down. They met with Installation 01's creators and worked out a deal. So long as the fan game is released free of charge and displays this text:

"Installation 01 is a completely separate entity from 343 Industries and Microsoft Studios and neither 343 Industries nor Microsoft Studios is formally funding or partnering with this project."

Nintendo could and should do exactly this sort of thing. It would take a bit of work, of course, but the boon in allowing the fan community to thrive and create works of love alongside Nintendo properties has to far outweigh whatever that extra workload would be. At the very least, it would keep writers like me from pointing out to the gaming public that Nintendo hates them whenever I can. It would build a more enduring relationship with fans, it would make for a great PR story, and it would allow for an explosion in Nintendo branding to flood gaming fandom. All of these would represent good business developments for Nintendo.

If only it would try to stifle every Nintendo-y instinct it has and try to be just a bit more human and awesome to its fans. Oh well.

Filed Under: copyright, fans, licensing, mario, mario royale, threats
Companies: nintendo

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