[dahart]

Correct. The cases you’re citing are people who are taking Nintendo’s work and redistributing it. YouTube channels have been challenged when people include music from their games, which is copyright infringement. Mods to long extinct games are still distributions of Nintendo’s work, they are not original work. These are all examples of trying to use Nintendo’s IP and redistribute it without Nintendo’s permission. As much as we might not like it, and whether or not Nintendo is actively marketing it, what’s missing here is a valid argument for why people should be able to borrow Nintendo’s work.

BTW your example may be wading in to Trademark territory, which is not the same thing a copyright and doesn’t apply to this discussion.

[elsjaako]

Nintendo's work isn't a physical, limited good in their possession. It's not like a car or a handbag.

This type of property is protected by law. This isnt the natural state of things, once upon a time you could just retell a story you heard. We as a society have decided to give Nintendo a temporary monopoly. Why do we do this? Different people give different arguments, but for me the reason is that I like Nintendo games, and I want Nintento to keep making them, and they're more likely to make it if we give them an additional edge to make money making games.

With that perspective, I would argue that you should be able to use their work, as long as it isn't likely to stop them from producing more content. Mods to long extinct games seem like a clear example where this is the case.

I'm not saying this is how the law is, I'm saying I think the law as it stands restricts people way to much for the purposes it serves to the people.

[dahart]

Copyright law today isn’t about physical goods, it’s now about giving the author of a work the right to control who can copy it. We as a society have decided to give all authors of all works a temporary monopoly, and the reasons for it are well documented.

I’m not sure I understand why wishing Nintendo to continue doing business supports the idea that you should be able to remix their work, which implicitly means you want people to be able to profit from their designs without necessarily adding value. There’s nothing at all stopping people from making new games, why do they want to mod Nintendo’s games without licensing them? Why should that be legal? And if it is legal, how do you continue to protect Nintendo when some of the “mods” will be people making straight copies, changing something trivial like the background color on the box, and selling it for full price while giving Nintendo none of the money? If you respond with, well put a standard for how much it must be changed in place, then consider why your standard should be any different than Fair Use.

[elsjaako]

You're saying "why should we allow people to remix?". I don't want to put words in your mouth, but this makes me think you're saying "We should forbid people from using works created by someone else, unless we have a good reason to allow it".

This isn't a perspective I argue from, because I disagree with it.

I think we should allow anyone to copy anything they want, unless we have a good reason to prevent that. So if you're going to stop people from remixing, I think you should be able to build an argument for that that doesn't start with assuming all the rights are owned.

I don't even like using the word "rights" for copyrights, as I really don't feel like it's in the same category as free speech of fair trial. But if I use other words the whole argument gets very confused.

Should Nintendo have the exclusive rights to games they make for 5 years? I think that argument is easy to make. Personally I'm a fan of slightly longer, maybe 20 years.

Should Nintendo have the exclusive rights to games they make for 100 years? I think that's excessive, and instead of serving to encourage create it encourages rent-seeking (Also, at this time scale a lot of material gets lost before it can be meaningfully archived).

Should someone be allowed to distribute a complete copy of a Nintendo game (still under copyright) with (possibly minor) modifications? I don't think so, I think this makes it much harder for Nintendo to make a profit for the limited time they're given.

Doing so in 20 years? Yes, Nintendo's had plenty of time to profit.

[dahart]

I think I agree largely with your opinion. It sounds like you agree mostly with mine, but I’m asking hard questions to try to extract some legitimate justification for remixes that copy significant value from the source material. A big problem with wanting to copy and remix is the unspoken desire to save time or money or to make money. IMO that’s not a great justification. Your position, like mine, starts from acknowledging the need for some protection time for creators, so I don’t think I need to defend that, do I? All we need to do is agree on a reasonable term, right? And Nintendo is not a good starting place to think about the term. The law needs to work well enough for people who don’t own a Mario franchise. It needs to work for photographers and painters and writers too. The law also needs to assume copies are not in good faith. The problem isn’t game developers who want to pay homage to Mario, the problem is unscrupulous people who want to make a quick buck without adding value. They are the reason the law exists, and the law needs to start with the assumption that will happen again.