I could understand these arguments, in a way, when they are about IP that hasn't been used in decades. But Nintendo still exists and is still producing Mario games. Why should any other company be able to use the Mario theme?
Why should they still be able to keep old games locked up just because they're making new ones? Let them profit from their new ones, hell let them continue to repackage and sell the old ones over and over again if they want. Plenty of people will continue to pay for them on their new Nintendo devices, even after they are in the public domain. They've been widely available to play online and in emulation for years but that hasn't stopped Nintendo fans from pulling out their wallets so far.
They've had more than enough time to profit on those old titles, and they certainly have. There's no reason to continue to prevent others from using those old assets, or enjoying the old games as they like. It certainly doesn't encourage the creation of new works to continue giving Nintendo copyright's special "limited" privileges for those titles, and removing them absolutely would encourage new works, as well as help to bring Nintendo's new mario titles new fans.
Quite true. I lost my original Diablo 2 CD key ages ago, then repeatedly pirated it from time to time until Blizzard released the remastered version, which I bought.
There's certainly truth in that for some pirates. Some folks are just supper passionate about things, and it's natural that they'd be hitting up the internet for early releases, versions only released overseas, demos, etc while also grabbing as much as they can available to them through retail channels.
Speaking personally, in the early days of napster I found so much amazing music I'd never been exposed to from bands I'd never heard of or had given a chance to, that I found myself spending far more money on music than I ever had before. I wasn't obsessive about it like some fans, I just had so much more I wanted than I ever did previously. I had stacks of binders full of CDs, CDs slotted into tall plastic towers, and CDs stacked on bookshelves.
Since then they've all been ripped into FLAC and MP3 and given to friends or stored away somewhere, or lost in moves and the RIAA became so deplorable to me that I vowed to never buy another CD from an RIAA affiliated label ever again and that was the last they ever saw a dime from me from retail sales, although I have imported a few CDs from Australia and Japan which I'm sure had their equivalents to the RIAA. Still, my first steps into music piracy (I don't count the MOD or MIDI files) coincided with the peak of my spending on music.
I think OP is specifically talking about the array of bits that make up “the Super Mario Brothers ROM image” and music, and not the trademarked characters, level designs, and so on in the game.
There is no way in hell Nintendo still makes significant revenue from selling, say, the Super Mario Brothers NES cartridge, or its software image. It is effectively “locked away” in a vault until freed from the bonds of copyright. This happens to so many old works, because copyright is so ridiculously long.
I would love to see a histogram of how much profit all copyright holders make from all artistic products, year by year. I would guess that, for the vast, vast number of works, 99.99 or more percent, they make all their money in less than 10 years and for the remaining 100 or whatever years the work makes $0 and just sits there, wastefully and needlessly kept from the public.
I'd definitely favor a system where you get 10 years of copyright for free automatically. The next year of protection requires registration and a fee of $1. It double every year after that (tune the exponential function to be broadly equivalent to what we currently have if you need to appease Disney).
No law of the land should differentiate itself based on a fee or payment of any kind. In other words, no one should be able to just spend money to get a better treatment under the law, period. I like the idea of a 10 year limit through!
I agree, in a world with instant global distribution at near zero cost 10 years is plenty of time to make money on your work, and that term should apply to anyone no matter how much money have.
I also like the idea of a requirement that whenever possible a DRM free copy of a work must be submitted to the copyright office in order to apply for copyright protection so that anyone can go online and see who owns the copyright on a work and how much time is left on it. The copyright office would then automatically make that work available at their website after the expiration of the 10 year period.
> There is no way in hell Nintendo still makes significant revenue from selling, say, the Super Mario Brothers NES cartridge, or its software image.
I mean, I bought it for the Wii Virtual Console, I got the mini NES, I got the mini SNES (that has all-stars right? although that's a port not the ROM, I suppose), I've paid for switch online from time to time which provides it. Mario 35 was pretty neat and I'd pay for it to return if it was offered; again, that's not really the ROM, but still.
It's not yet 40 years old, which is pretty young to be considered an old work, IMHO.
All that said, in terms of just copying, there's not much meaningful enforcement: the roms are out there. You can get them all over the net; you can buy unlicensed hardware devices that include them at all your favorite bazaars, etc. Not much in the way of unlicensed derivative works (other than some unlicensed ports or reimplimentations to similar hardware back in the day), but trademark most likely prevents broad commercial reach of derivative works anyway.
> > There is no way in hell Nintendo still makes significant revenue from selling, say, the Super Mario Brothers NES cartridge, or its software image.
> I mean, I bought it for the Wii Virtual Console, I got the mini NES, I got the mini SNES (that has all-stars right? although that's a port not the ROM, I suppose), I've paid for switch online from time to time which provides it. Mario 35 was pretty neat and I'd pay for it to return if it was offered; again, that's not really the ROM, but still.
Sure, but to reiterate how I read GP:s post, did you buy it "to get the game" or did you buy it to play it on your Wii? I think that's the crux of it. Even if the old games were in public domain, Nintendo could still sell it to you in a product/service that makes it playable on the Wii, which it otherwise would not be, and that would still be worth it to some people.
> It's not yet 40 years old, which is pretty young to be considered an old work, IMHO.
IMHO your HO is likely based on learned behavior, not how things should (whatever that means) or could be.
I didn't have a licensed copy or a good way to play unlicensed copies at the time, so I'll say I paid to get the game. The mini NES has HDMI and is easier to travel with than my aging Wii, so that's nice. I've also now taken possession of the family NES from when I was young, so I can play the game as intended. I also picked up a super famicom recently to play super mario world properly (even with international shipping, it was much less expensive than a north american market SNES), but Nintendo doesn't get new revenue from that.
> There is no way in hell Nintendo still makes significant revenue from selling, say, the Super Mario Brothers NES cartridge, or its software image
Why not? Nintendo has been quite successful in selling emulated versions of these games in their ds store and released the wildly popular Nintendo Classic Edition which included this rom and sold over 2 million.
Because of the convenience of playing them on the new consoles. The only people I know who have bought Super Mario Bros Virtual Console releases are the sorts of people who'll buy additional ports of Portal to Nintendo consoles. They're buying the port (the emulator), not the ROM; the availability of the ROM image is not cutting into Nintendo's sales.
I'm not so sure that's true. I simultaneously see people say:
> Nintendo needs to stop hurting ROM sites for games older than 20 years. There's little profit to be made from such old titles.
As well as:
> Why did Nintendo create the NES Classic? You can do the same for far cheaper with a Raspberry Pi. And why are there NES games locked away behind an online subscription? I can play them on my phone for free.
There are definitely many, many reasons to be unhappy with current copyright law. But claiming that Nintendo stands to gain nothing from retaining rights to their ROMs is not a valid critique, and does not pave the way for honest discourse.
The people saying “Why did Nintendo create the NES Classic?” (e.g., me-until-recently) usually have little interest in purchasing a NES Classic. They often have little interest in playing video games.
> But claiming that Nintendo stands to gain nothing from retaining rights to their ROMs
I claim that Nintendo gains little from not selling DRM-free copies of the ROM. There's a big difference between "take down all fangames with a character in a red hat called Mario" and “relinquish all monopoly rights to the public domain”: I suggest that Nintendo wouldn't lose much by being a bit less controlling. They might even recover some reputational damage!
It makes for more creative challenges. If someone has a good idea for a Mario game, they could do it. If Nintendo wants to create something unique, they'd have to take more risks and create something new. We're talking one new character every few decades.
I got into this discussion with coworkers about the loss of copyright for Steamboat Willie. They were all like "Now anybody can make Mickey Mouse cartoons!" Not so fast. The name and likeness of Mickey Mouse are also trademarked, and Disney can hold onto them forever.
It's the same with Mario. Even if the copyright on Super Mario Bros. expired today, Nintendo could claim trademark protection on the names and likenesses of Mario, Luigi, Princess Peach, Bowser, the Koopas, etc. Even the theme music. This has already been done. The "Tetris theme" is a public domain Russian folk song called Коробейники -- but The Tetris Company LLC owns a trademark on this song in the video game market.
Tetris is one of the most jealously guarded IPs in the world. Every aspect of Tetris is protected with copyrights and trademarks -- the board dimensions, the pieces, everything. Writing a game that plays like Tetris without a Tetris license is a good way to get sued and found liable. It's entirely possible for Nintendo to lock down protection of the Mario IP in virtual perpetuity in similar fashion, making copyright expiry moot for all but the most unimportant elements (say, the particular shapes of the clouds and horsetail plants in Super Mario Bros.).
Trademark isn't intended to be a backdoor to extend copyright law.
Obviously someone calling for copyright expiration is calling for a sane interpretation (or reinterpretation, if you will) of trademark law.
Even under current law whether you can make a Micky Mouse cartoon probably has more to do with which judge your litigation is in front of than anything else.
Exactly. I don't have an issue with Nintendo maintaining the exclusive ability to create new Mario games because it encourages Nintendo to ensure maintain a certain level of quality. Nintendo wants consumers to associate "Mario" with "quality", so they will only release high-quality Mario games.
We can debate whether Nintendo upholds that standard—I thought some of the Mario Party games were pretty atrocious—but at least the incentive exists.
If it's a good idea for a Mario game, it's probably a good idea for a game that does not use the Mario IP.
I suddenly realized, when working on my mobile platform game, that adult me was developing the Mario game 12-year-old me always wanted to make. It just didn't have Mario in it or use the mechanics like specific power-ups unique to that series. But the platforming itself and, it turns out, things like how level layouts are stored, were pretty similar to Mario.
Sometimes it's the character itself that makes the difference though. Especially in cases where you're dealing with satire involving a figure from our shared culture, but also in the case of works where the artist is drawing from the history of the character and fictional universe they exist in. Sometimes the artist can't just swap out the IP with a generic character and still have the effect they were going for.
The same applies whether it's somebody else's or your own. Is it significantly more creative to continually milk a character you made 40 years ago? How about a character your company made before you even started working there?
There are indigenous tribes who assign ownership of stories and songs to particular people/families. Retelling them without ownership or permission warrants punishment.
The idea of ideas being property is as human as anything.
The only thing that is human about corporations is the people that make them up. There's a several order of magnitude gap between a few people/families in tribes compared to them.
> But Nintendo still exists and is still producing Mario games.
Good for them. Let them sell this new stuff then. If they want to keep making money, they should have to make new stuff, all the time. Anything 10+ years old belongs in the public domain.
They've had more than enough time to profit on those old titles, and they certainly have. There's no reason to continue to prevent others from using those old assets, or enjoying the old games as they like. It certainly doesn't encourage the creation of new works to continue giving Nintendo copyright's special "limited" privileges for those titles, and removing them absolutely would encourage new works, as well as help to bring Nintendo's new mario titles new fans.