7 ms·

Will Nintendo sue?

46 points by pearjuice 13y ago

basicallydan 13y ago
If anybody is interested in what this is all about, it's an OS project called Full-Screen Mario, a clone of the original SMB using HTML5. I had a little play, and so far it seems like a pretty good clone: http://www.fullscreenmario.com/ http://www.fullscreenmario.com/ Might be worth contributing to if you are interested in HTML5 game dev or have some experience with the potential legal issues surrounding the project.
guest0123 13y ago
ianal, but given that you can play almost every gamecube, n64, snes, gameboy, gameboy color, and gameboy advance game that has ever been made online for free via ROMs/ISOs, they should be fine
- bendmorris 13y ago
  It's legal to download and use ROMs or console BIOS dumps if you own the original hardware/game [1] (although this is controversial and officially disputed by Nintendo). But that doesn't give you permission to modify and redistribute them - the games are still under copyright. I think the reason Nintendo doesn't stop you from playing ROMs is similar to the reason HBO doesn't stop everyone from downloading Game of Thrones - it would be just about impossible. It doesn't mean they condone it. [1] https://en.wikipedia.org/wiki/Video_game_emulator#Legal_issues https://en.wikipedia.org/wiki/Video_game_emulator#Legal_issu...
  - tedunangst 13y ago
    The citation for that comes from the Game Genie case, which is a little different. You're free to copy and modify the game hardware you own. But strictly speaking, I'm not sure that extends to a copy of similar game hardware. (i.e., if you and I both own a DVD and you rip it, can you give me that rip? It's a copy of your DVD, not my DVD. I don't know if this has been settled one way or the other.)
networked 13y ago
The developer uses Nintendo's trademark "Mario" in the title of his video game project. (Edit: As pointed out in the comment below, the name "Mario" itself is not trademarked, so to be correct the previous sentence should instead read "The developer uses Nintendo's trademark Mario in his video game project.") I'm not a lawyer but as far as I understand (unlike with copyright) Nintendo is legally obliged to react and protect it, right? Edit: Concern about trademark issues is also what apparently led to the Super Mario Clone FOSS project (http://sourceforge.net/projects/smclone/ http://sourceforge.net/projects/smclone/, note the URL) being renamed Secret Maryo Chronicles. I'm not sure if Nintendo ever contacted them or if it was a precautionary change. Edit 2: There's some interesting commentary from a professional lawyer on the issue of trademarking and copyrighting characters at http://www.ivanhoffman.com/characters.html http://www.ivanhoffman.com/characters.html, though it's from 2003.
- Weltan 13y ago
  They're not obligated to do so, but they do have the right to do so. The name Mario is not a trademark itself since common names cannot be trademarked, although product names containing the name Mario are trademarked by Nintendo, such as Super Mario. I think Nintendo has sufficient grounds to sue because this project uses the name Mario in concert with an actual rework of a Nintendo product which itself is copyright. Most likely they won't resort to a lawsuit right away, instead will send a cease and desist.
  - pbhjpbhj 13y ago
    Common names can be used as trademarks. "Mario" is a current EU trademark held by Nintendo for categories 9, 28, 38 and 41. - http://esearch.oami.europa.eu/copla/trademark/data/007061501 http://esearch.oami.europa.eu/copla/trademark/data/007061501 ; - [UK:] http://www.ipo.gov.uk/tmcase/Results/1/UK00001182493 http://www.ipo.gov.uk/tmcase/Results/1/UK00001182493. The USPTO TESS db shows "Mario" is a character mark held by "Mario Camacho Foods, LLC". It may be that the protection afforded is far less as people generally in TM law have an [near] absolute right to trade under their given name.
    - 13y ago
swatkat 13y ago
Here's the official stance of Nintendo on ROMs, emulators and mods: http://www.nintendo.com/corp/legal.jsp#helping http://www.nintendo.com/corp/legal.jsp#helping But, it seems Nintendo is pretty lenient on fan-made content: http://kotaku.com/5585802/nintendo-doesnt-want-to-criminalize-obsessed-fans http://kotaku.com/5585802/nintendo-doesnt-want-to-criminaliz...
mjn 13y ago
If they notice, they'll probably complain. Nintendo is fairly hardline on this kind of thing, afaict. An academic conference in my area used to host an annual "Mario AI championship", where competitors submitted either Mario-playing AI controllers, or systems to procedurally generate Mario-like levels [1]. After a few years someone at Nintendo found out, and demanded that we: 1) stop using the name "Mario", and 2) stop using the Mario assets in the procedural level generation framework. Imo there was a decent fair-use claim in that case, but nobody wanted to pursue it, so now it's informally referred to as the "Non-Mario AI competition" [2]. (As a direct reimplementation of an actual Mario Bros game, the project here seems like it would not really have a good fair-use claim, anyway.) That's in contrast to Blizzard's reaction to the annual Starcraft AI competition [3]: once they found out about it, they sent a representative and donated prizes. [1] http://julian.togelius.com/Togelius2013The.pdf http://julian.togelius.com/Togelius2013The.pdf [2] http://platformersai.com/ http://platformersai.com/ [3] http://webdocs.cs.ualberta.ca/~cdavid/starcraftaicomp/ http://webdocs.cs.ualberta.ca/~cdavid/starcraftaicomp/
- bendmorris 13y ago
  >If they notice, they'll probably complain. They have noticed and have alleged copyright infringement: http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/20/nsa-chief-alexander-is-a-brilliant-spy-and-an-even-better-politician/ http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/20...
- girvo 13y ago
  Although the SC AI guys are still stuck with BW, not SC2 :'(
  - mjn 13y ago
    Nobody's hacked up a straightforward way to hook into SC2 externally afaik. It's less likely to happen in a stable way with a currently active game, because bot hooks can be used by cheaters, so game companies tend to change around interfaces in patches to thwart them. Whereas SC/BW is old enough that BWAPI has been stable for years now, and Blizzard hasn't moved to disable it (either legally or technically): http://code.google.com/p/bwapi/ http://code.google.com/p/bwapi/ I have seen one SC2 bot, based on the rather impressive feat of intercepting raw DirectX calls and reconstructing game state from them: http://graphics.stanford.edu/~mdfisher/GameAIs.html http://graphics.stanford.edu/~mdfisher/GameAIs.html
undershirt 13y ago
Nintendo definitely won't. Namco on the other hand appears to still be somewhat reliant on sales of their 30-year-old Pac-Man game. They issued a DMCA on my silly Pac-Man project last year [1][2]. My goal was to archive and educate people about the internal mechanics of the game. [1] http://pacman.shaunew.com/play/index.htm#learn http://pacman.shaunew.com/play/index.htm#learn [2] http://pacman.shaunew.com/play/index.htm#cheat_pac http://pacman.shaunew.com/play/index.htm#cheat_pac
- dmd 13y ago
  > Nintendo definitely won't. Except that they did. http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/17/nintendo-says-this-amazing-super-mario-site-is-illegal-heres-why-it-shouldnt-be/ http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/17...
  - undershirt 13y ago
    Thanks for the update. I am definitely naive.
- unsignedint 13y ago
  Nintendo sent out 491 DMCA notice as far as I can see on Chillingeffect, while I can only see 26 DMCA notices from Namco. I guess not every DMCA notices ends up in Chillingeffect, but it sounds like Nintendo has been bit active.
  - undershirt 13y ago
    Wow you're right. That is a good resource, thanks!
gonnakillme 13y ago
I wonder if a possible solution here is to distribute a Makefile or something that extracts the assets (sprites, music) from a ROM. I think this would make hosting a live version somewhat dubious, but the code should always be able to be distributed. N.B. I am not a lawyer.
mparlane 13y ago
As a Dolphin(Wii Emulator) developer, I can tell you that we haven't heard anything from Nintendo in the 10 years we have been around.

46 points by pearjuice 13y ago

If anybody is interested in what this is all about, it's an OS project called Full-Screen Mario, a clone of the original SMB using HTML5. I had a little play, and so far it seems like a pretty good clone: http://www.fullscreenmario.com/ http://www.fullscreenmario.com/ Might be worth contributing to if you are interested in HTML5 game dev or have some experience with the potential legal issues surrounding the project.

guest0123 13y ago

ianal, but given that you can play almost every gamecube, n64, snes, gameboy, gameboy color, and gameboy advance game that has ever been made online for free via ROMs/ISOs, they should be fine

bendmorris 13y ago
It's legal to download and use ROMs or console BIOS dumps if you own the original hardware/game [1] (although this is controversial and officially disputed by Nintendo). But that doesn't give you permission to modify and redistribute them - the games are still under copyright. I think the reason Nintendo doesn't stop you from playing ROMs is similar to the reason HBO doesn't stop everyone from downloading Game of Thrones - it would be just about impossible. It doesn't mean they condone it. [1] https://en.wikipedia.org/wiki/Video_game_emulator#Legal_issues https://en.wikipedia.org/wiki/Video_game_emulator#Legal_issu...
- tedunangst 13y ago
  The citation for that comes from the Game Genie case, which is a little different. You're free to copy and modify the game hardware you own. But strictly speaking, I'm not sure that extends to a copy of similar game hardware. (i.e., if you and I both own a DVD and you rip it, can you give me that rip? It's a copy of your DVD, not my DVD. I don't know if this has been settled one way or the other.)

networked 13y ago

The developer uses Nintendo's trademark "Mario" in the title of his video game project. (Edit: As pointed out in the comment below, the name "Mario" itself is not trademarked, so to be correct the previous sentence should instead read "The developer uses Nintendo's trademark Mario in his video game project.") I'm not a lawyer but as far as I understand (unlike with copyright) Nintendo is legally obliged to react and protect it, right? Edit: Concern about trademark issues is also what apparently led to the Super Mario Clone FOSS project (http://sourceforge.net/projects/smclone/ http://sourceforge.net/projects/smclone/, note the URL) being renamed Secret Maryo Chronicles. I'm not sure if Nintendo ever contacted them or if it was a precautionary change. Edit 2: There's some interesting commentary from a professional lawyer on the issue of trademarking and copyrighting characters at http://www.ivanhoffman.com/characters.html http://www.ivanhoffman.com/characters.html, though it's from 2003.

Weltan 13y ago
They're not obligated to do so, but they do have the right to do so. The name Mario is not a trademark itself since common names cannot be trademarked, although product names containing the name Mario are trademarked by Nintendo, such as Super Mario. I think Nintendo has sufficient grounds to sue because this project uses the name Mario in concert with an actual rework of a Nintendo product which itself is copyright. Most likely they won't resort to a lawsuit right away, instead will send a cease and desist.
- pbhjpbhj 13y ago
  Common names can be used as trademarks. "Mario" is a current EU trademark held by Nintendo for categories 9, 28, 38 and 41. - http://esearch.oami.europa.eu/copla/trademark/data/007061501 http://esearch.oami.europa.eu/copla/trademark/data/007061501 ; - [UK:] http://www.ipo.gov.uk/tmcase/Results/1/UK00001182493 http://www.ipo.gov.uk/tmcase/Results/1/UK00001182493. The USPTO TESS db shows "Mario" is a character mark held by "Mario Camacho Foods, LLC". It may be that the protection afforded is far less as people generally in TM law have an [near] absolute right to trade under their given name.
  - 13y ago

swatkat 13y ago

Here's the official stance of Nintendo on ROMs, emulators and mods: http://www.nintendo.com/corp/legal.jsp#helping http://www.nintendo.com/corp/legal.jsp#helping But, it seems Nintendo is pretty lenient on fan-made content: http://kotaku.com/5585802/nintendo-doesnt-want-to-criminalize-obsessed-fans http://kotaku.com/5585802/nintendo-doesnt-want-to-criminaliz...

mjn 13y ago

If they notice, they'll probably complain. Nintendo is fairly hardline on this kind of thing, afaict. An academic conference in my area used to host an annual "Mario AI championship", where competitors submitted either Mario-playing AI controllers, or systems to procedurally generate Mario-like levels [1]. After a few years someone at Nintendo found out, and demanded that we: 1) stop using the name "Mario", and 2) stop using the Mario assets in the procedural level generation framework. Imo there was a decent fair-use claim in that case, but nobody wanted to pursue it, so now it's informally referred to as the "Non-Mario AI competition" [2]. (As a direct reimplementation of an actual Mario Bros game, the project here seems like it would not really have a good fair-use claim, anyway.) That's in contrast to Blizzard's reaction to the annual Starcraft AI competition [3]: once they found out about it, they sent a representative and donated prizes. [1] http://julian.togelius.com/Togelius2013The.pdf http://julian.togelius.com/Togelius2013The.pdf [2] http://platformersai.com/ http://platformersai.com/ [3] http://webdocs.cs.ualberta.ca/~cdavid/starcraftaicomp/ http://webdocs.cs.ualberta.ca/~cdavid/starcraftaicomp/

bendmorris 13y ago
>If they notice, they'll probably complain. They have noticed and have alleged copyright infringement: http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/20/nsa-chief-alexander-is-a-brilliant-spy-and-an-even-better-politician/ http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/20...
girvo 13y ago
Although the SC AI guys are still stuck with BW, not SC2 :'(
- mjn 13y ago
  Nobody's hacked up a straightforward way to hook into SC2 externally afaik. It's less likely to happen in a stable way with a currently active game, because bot hooks can be used by cheaters, so game companies tend to change around interfaces in patches to thwart them. Whereas SC/BW is old enough that BWAPI has been stable for years now, and Blizzard hasn't moved to disable it (either legally or technically): http://code.google.com/p/bwapi/ http://code.google.com/p/bwapi/ I have seen one SC2 bot, based on the rather impressive feat of intercepting raw DirectX calls and reconstructing game state from them: http://graphics.stanford.edu/~mdfisher/GameAIs.html http://graphics.stanford.edu/~mdfisher/GameAIs.html

undershirt 13y ago

Nintendo definitely won't. Namco on the other hand appears to still be somewhat reliant on sales of their 30-year-old Pac-Man game. They issued a DMCA on my silly Pac-Man project last year [1][2]. My goal was to archive and educate people about the internal mechanics of the game. [1] http://pacman.shaunew.com/play/index.htm#learn http://pacman.shaunew.com/play/index.htm#learn [2] http://pacman.shaunew.com/play/index.htm#cheat_pac http://pacman.shaunew.com/play/index.htm#cheat_pac

dmd 13y ago
> Nintendo definitely won't. Except that they did. http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/17/nintendo-says-this-amazing-super-mario-site-is-illegal-heres-why-it-shouldnt-be/ http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/17...
- undershirt 13y ago
  Thanks for the update. I am definitely naive.
unsignedint 13y ago
Nintendo sent out 491 DMCA notice as far as I can see on Chillingeffect, while I can only see 26 DMCA notices from Namco. I guess not every DMCA notices ends up in Chillingeffect, but it sounds like Nintendo has been bit active.
- undershirt 13y ago
  Wow you're right. That is a good resource, thanks!

gonnakillme 13y ago

I wonder if a possible solution here is to distribute a Makefile or something that extracts the assets (sprites, music) from a ROM. I think this would make hosting a live version somewhat dubious, but the code should always be able to be distributed. N.B. I am not a lawyer.

mparlane 13y ago

As a Dolphin(Wii Emulator) developer, I can tell you that we haven't heard anything from Nintendo in the 10 years we have been around.