Nintendo Wields DMCA Ax On Fan Games

In a move that may sadden many but should surprise nobody, Nintendo of America has issued a DMCA takedown notice for 562 fan-created games created in homage to Nintendo originals and hosted on the popular Game Jolt site. Games affected include Mario, Zelda, and Pokémon based creations among others, and Game Jolt have responded, as they are required to, by locking the pages of the games in question. They state that they believe their users and developers should have the right to know what content has been removed from their site and why the action has been taken, so they have begun posting any notices they receive in their GitHub repository.

It is likely that this action won’t be appreciated within our community, however it’s important to note that while there are numerous examples of DMCA abuse this is not one of them. Nintendo are completely within their rights over the matter, if you use any of the copyrighted Nintendo properties outside the safe harbor of fair use then you will put yourself legitimately in their sights.

Something that is difficult to escape though is a feeling that DMCA takedowns on fan-created games are rather a low-hanging fruit. An easy way for corporate legal executives to be seen to be doing something by their bosses, though against a relatively defenseless target and without really tackling the problem.

To illustrate this, take a walk through a shopping mall, motorway service station, or street market almost anywhere in the world, and it’s very likely that you will pass significant numbers of counterfeit toys and games copying major franchises including those of Nintendo. A lot of these dollar store and vending machine specials are so hilariously awful that their fakeness must be obvious to even the most out-of-touch purchaser, but their ready availability speaks volumes. Unlike the fan-created games which are free, people are buying these toys in huge numbers with money that never reaches Nintendo, and also unlike the fan-created games there’s not a Nintendo lawyer in sight. Corporate end-of-year bonuses are delivered on the numbers of violations dealt with, and those come easiest by piling up the simple cases rather than chasing the difficult ones that are costing the company real sales.

We’ve covered many DMCA stories over the years, and some of them have been pretty shocking. Questions over its use in the Volkswagen emissions scandal, or keeping John Deere tractor servicing in the hands of dealers. Let’s hope that the EFF and Bunnie Huang’s efforts pay off and dismantle section 1201, one of the most nonsensical parts of the law.

Via Engadget. Dendy Junior unauthorised Nintendo Famicom clone image, By Nzeemin (Own work) [CC BY-SA 3.0], via Wikimedia Commons.

61 thoughts on “Nintendo Wields DMCA Ax On Fan Games

    1. I think fan devs want to be recognized for their efforts by the fans of those games and systems…
      if these games were freeware, Nintendo should embrace them instead of shooting them down. If I owned a game making company, I’d love to have such dedicated fan base…

      1. Meh. So maybe my philosophy is more in line with *chans that people don’t count and content does.

        Still, there are ways to contact while staying relatively untraceable and untakedownable. It’s just they don’t try at all. For starters, don’t base it in USA (hosting, domains)

    2. Sure, this is easy to do. But I think more to the point: fan games enhance the value of the original product. I would like to see an industry more welcoming to this — it is after all a great example of crowd-sourced content right? This shouldn’t be illegal and you shouldn’t have to hide for doing it. It should be a celebrated feature of a gaming platform that the engines can be used to write more games, pulling the gamers in more and more and building brand loyalty.

      The counter argument will be that if they can get free content why will they pay for it? I think there will always be an audience for great games, be they free or for a fee.

      1. To play devil’s advocate, bad fan games diminish the value of the original product by associating that product with a crappy game, and good fan games diminish the value of the original product by acting as a free alternative (read: competitor) to that product.

          1. Well yeah, we’re talking about video games, after all. Logic and common sense fled that particular room long ago.

            But seriously, it just means that the issue is complicated.

          2. @dassheep
            Those aren’t completely opposite conclusions. They’re in fact the same exact conclusion: fan games diminish the value of the original, whether they’re good or bad; they just do so in different ways depending on whether they’re good or bad.

            I’m not saying I agree with the argument, but it annoys me when people dramatically lower their standards for arguments depending on whether they agree with the conclusion.

        1. Mods still required you to own the original “engine”, and did not allow redistribution of copyrighted game assets. Actually even after ID released source for Quake 3 engine or whatever, people still need the retail CD to actually play it, because the art and music and level data is not free.

          1. In all honesty I was just reminiscing. I do understand that the two aren’t exactly the same, but they are similar. There are quite a few games that don’t approve/support modding.

          2. @gregkennedy
            No, they aren’t similar. They’re completely different. The issue isn’t modding; it’s distributing someone else’s copyrighted content. Counterstrike et al did nothing of the sort.

      2. Ok, while Nintendo has actively quashed Mario clones on Flash sites, they also released their own “Super Mario Maker” toolkit for $50 or whatever. You can use their provided Mario engine to create and share Mario levels. It is not hard to imagine that a cloned “Mario Maker Online” could take sales from “Super Mario Maker”.

        1. That is not a true “maker” on the same level as say… the Half-Life tools that allow you to go apeshit with the game engine and do just about anything (game wise) with it.

          It’s more like the old Lode Runner game where you can create levels strictly within the confines of the game engine. The game engine isn’t quite as faithful to the original versions as a handful of the old map designs are impossible to replicate exactly. So it’s really its own separate engine from any prior iteration.

          In addition, the “maker” part *is* the game. You have to spend time making maps to unlock additional building blocks. I believe this enforces a learning curve and reduces the chance kids get bored with the game too quickly.

      3. Here we have both a problem with trademark protection (look at the names of the games) which require policing by law and copyright infringement which theoretically need no policing but (in many cases) is required. That the items in question both use copyrighted resources and trademarked names makes it a larger problem than otherwise.

        If Nintendo didn’t do this they open up the possibility of making counterfeit games and products semi-legal AKA very hard to legally shut down.

        One possible way to open up for fan-made content could be some kind of producer licencing but even then there are potential problems that can decrease the value of trademarks (example: imagine a Italian plumber-themed rape simulator). Not even (expensive) active policing can remove all risks.

      1. Hear hear. It’s feeling more and more like people are doing things to get noticed rather than through the quality and creativity of their creations. They also forget that the media also loves to feature creations inspired by classic properties.

        There’s a better way to get media attention for your project. Of course this isn’t to say it’s not a labour of love for some and there are genuine instances of fans wanting to do a ‘what if’ game but they should know there’s every chance they’ll receive a DMCA take down request. I’m also thankful for the efforts of the creators of the Metroid and Pokemon projects.

  1. Right, so, I assume a number of these games are using ripped sprites or music of Nintendo copyrighted materials. It raises an interesting question: if you took one of these games, swapped out “Pokémon” for free art and a new name, would it get nearly as many plays?

    I am guessing “probably not”. People are intentionally seeking out Mario games and running across these things online – consumers want to play “Mario”, not “Jump Boy”. Nintendo’s reasoning probably includes stuff like this:
    * If you don’t protect your copyrighted stuff, it erodes its legal protections.
    * Fan games fall outside Nintendo’s quality control assurances and may taint consumer experience.
    * Newgrounds is making (ad) money off the Mario name, while Nintendo won’t see any of the revenue. Gamers do not need to purchase Ninty hardware to get their Poke fix, for example.

    As much as they may feel sympathetic to game devs using their assets, it is easy to imagine real monetary consequences to allowing them to exist.

    1. “If you don’t protect your copyrighted stuff, it erodes its legal protections.”

      That’s true of *trademarks*. Not true of *copyrights*.

      That said, allowing fan games to use *trademarked* characters *would* erode those trademark protections.

  2. Is there no way in which they could release a “rom compiler” and just release the code to the games then one click you have a Nintendo rom, Surely if they done it this way then Nintendo couldn’t do anything. Or am I missing something?

    1. Many fan-hack ROMs work pretty much this way; they are released as a patch file (e.g. *.ips) that contains only the difference between the original ROM and the fan game (no copyrighted material), and the player needs the original game ROM to play it. I don’t know if this site did it this way or not. Of course, this does not prevent problems from knockoff artwork and trademarks, nor “we know this file doesn’t actually violate copyright, but you’ll have to spend $20k in court to prove it”…

      1. Thanks for the info, Seems a solid way of doing things, But like you say the problem is that fans haven’t got $20k sitting around to go to court. It’s a shame our society relies on who has the most money to get justice (not so much this issue as it is a grey area). I don’t understand why Nintendo doesn’t release a retro console with an “app store” for fan made games and monetise the shit out of it. I for one would buy one.

        1. The idea of a store for fan-made games has some merits but under the existing setup this is nearly impossible to create and for it to actually work well for both the creators and Nintendo.

          There’s not much win-win in this instance (yet).

          And while you might buy one, if you take a look at the free fan-games on Game Jolt that use IP from other companies, I would be hard pressed to envision more than a handful of them earning any sort of revenue from paid sales.

          Their entire appeal is based on being able to experience Nintendo’s IP for free. That appeal disappears once money is being charged for them (there are exceptions of course for the more slickly produced offerings like Pokemon and Metroid – there’s sufficient interest to indicate there’s a good chance people would pay a small sum of money for them)

  3. > while there are numerous examples of DMCA abuse this is not one of them

    Actually it is. Precisely because of the fair use clause. You see, whether the particular use of their copyrighted material *is* fair use or not is not known before a judge actually says so. So without a court order, they are removing something that could or could not be a perfectly legal derivative work.

    1. The DMCA takedown notice specifically references that the site was generating advertising income through use of games that featured Nintendo’s IP without permission. There surely can’t be a claim for fair use if the games that used Nintendo’s IP were generating ad revenue for the people that uploaded them as well as Game Jolt?

        1. It’s not just the site that’s generating income. It’s the people uploading the games that copied Nintendo’s IP that get income. Read my comment properly. It cannot be fair use if people are directly profiting from copying and distributing Nintendo’s IP.

    2. Fair use is a legal defense, not a pre-trial motion. The only time free use is proven is at the end of a court hearing. Until then, and even afterward, it is still copyright infringement; only after successful “free-use defense” is it legal infringment.

      IANAL, laws vary by country, and even by districts. Pay a real lawyer to explain affermative defense if you believe fair use applies to you.

  4. What’s missing in all of the reporting so far is that the ‘fan games’ were generating profit for the uploaders through Game Jolt’s Advertising Revenue Sharing Scheme – https://gamejolt.com/developers/ad-sharing

    “any ad revenue generated by your game pages is shared with you.”… “As a developer, you get 30% of all the revenue we make from ads on your game pages.”

    This changes the context from Nintendo’s lawyers stomping on non-profit free games to them stomping on for-profit free games that were making their uploaders money from copying/using Nintendo’s IP.

  5. One minor point: Nintendo has most probably “outsourced” their efforts in combatting piracy and IP theft. It’s not like Miyamoto decided to take these games down. It’s the lawyers and penny-pushers who ar doing the talking here.

  6. It’s sad, but it’s a thing. Having worked with Disney, I know what the consequences are for those who create and/or sell unlicensed products. It’s a shame that fans can’t express their love for a brand with their own creativity, but at the same time it isn’t their brand and the company wants to uphold the integrity of that brand. Great post!

    I’m actually the Community Content Manager for NowLoading.co, and I would be thrilled if you considered cross posting your stuff to our platform. If you don’t know much about us- we’re the same team behind Movie Pilot, and push to give awesome writers (like yourself) the exposure they deserve. Feel free to email me! My email and more info is on my about page. :)

    1. What is sad is the fact that faceless cooperations can own cultural expressions almost indefinitely and keep people, who actually should own and propagate culture from building upon that foundation. This is the way it must work and they are taking this away. This is the reason my media and art are being reduced to a flaccid heap of mediocrity.

  7. this is why i think pirate modding/gamedev needs to be a thing. especially with historically great franchises being raped and pillaged with shovel ware, while people who actually care about those franchises enough to make mods or their own games from scratch, and for free, totally get the shaft. i think they should take their modding under ground as a middle finger to the corprate lawyer culture that is ruining pretty much every good thing that exists.

    1. These ‘fans’ aren’t making them for free – read Game Jolt’s advertising revenue scheme. Ad revenue gets shared with developers. And all it takes to be a developer on Game Jolt is to upload a game.

      Uploading Nintendo-based ones using classic Nintendo characters would be an easier way to make money then developing characters and artwork of their own.

  8. Nintendo should feel lucky to have such a fan base that lets them push the same old tired characters years later. Underpowered consoles, same handful of characters, and stupid rfid figurines are not exactly pushing the envelope of innovation. Just sayin’…

  9. I suspect the problem with going after all the bootlegs (e.g. the xxx-in-1 mini-consoles sold on the cheap through infomercials and cheapie stores or all the various bootleg multi-game arcade boards featuring copyrighted Nintendo games) is that in most cases the original creator of these products is in somewhere like China where its very difficult for foreigners to enforce IP rights. So they could go after the people selling these products (and I wish they would since it hurts their revenue far more than any fan game ever could) but actually stopping the products being made is difficult at best.

      1. In this day and age, it’s nearly impossible for any fan to be unknowing of IP usage restrictions, particularly in the case of Nintendo’s IP. There’s a blanket rule – don’t use it without permission. And that generally applies for every other company. Being a fan doesn’t mean you neglect common courtesies like asking for permission.

  10. The story above is not perfectly clear:

    Were these take-downs directed at games that used Nintendo’s trademarked characters without permission? Or were they games that ran on Nintendo hardware without permission?

    Enforcement of the former is pedestrian. Enforcement of the latter would be egregiously abusive to say the least.

  11. It’s about time Nintendo and others protect there intellectual property against so called home brewers and publishers. The Colecovision community is rampant with these low life so called programmers that (what they call) port games from the MSX system to the Colecovision. They are just stealing games and reselling them to work on other systems.. as stated before giving the games away is also illegal and hurts the intellectual property owner..

      1. Not trolling.. Konami still uses characters from the old games on stuff they make now.. Why would they not protect there intellectual property.. Go ahead and use the basic from a MSX in something you make and sell.. See if Microsoft has a problem using that 25 year old software?

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