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/
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.
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
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.
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.)
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/, 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, though it's from 2003.
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.
Your reply got me curious, so I tried searching the USPTO TESS [1] to match your results for the EU and the UK. With what appears to me to be the correct query, "(mario)[COMB] AND (nintendo)[OW]" [2], I found 39 results total and of which one was for the word "Mario" on its own [3] but that trademark was dead "because the applicant failed to respond or filed a late response to an Office action". According to what [4] says and given the time frame (filing date: Sep. 30, 1982; date abandoned: Dec. 23, 1983) this seems to imply that the trademark "Mario" was never granted. However, there are 22 trademarks that contain the word "Mario" and at least one other word that are live.
Why did Nintendo let the application for "Mario" lapse? I can think of least three options: 1) it was by chance; 2) their lawyers decided the trademark won't be granted; 3) they thought it was somehow undesirable to own the trademark for the word "Mario"; I wonder what it really was.
Anyway, you're right. The GP was mistaken that you cannot trademark common names [5]. Looks like he was right that "Mario" isn't a trademark of Nintendo's but for the wrong reason.
When people claim they're legally "obliged" to enforce their IP, they're saying that if they don't enforce it, it could possibly be argued that their ownership rights are diminished because the work was orphaned, just as abandoned physical property can lapse to the city if the owner is absent and the property unmaintained. They're not actually "obliged" to do anything with their property.
Most of the time that argument is a convenient cop-out. You'd have to abandon your trademark pretty hard to lose the rights to it; leaving a few obscure online projects unmolested won't matter.
The real deal is that companies are very protective of their IP because they don't want anything to potentially impact their brand(s), and lawyers are eager to bill for as many hours as they can. It's possible that IP owners could commit a small team of goodwill ambassadors to filter alleged infringements and send licenses instead of (or quick on the heels of) C&Ds to good projects, but who's going to do that?
I believe the concern is that one obscure project becomes two obscure projects becomes four obscure projects becomes a not at all obscure project. Then somebody has to decide what dilutes the brand name and what doesn't. Zero tolerance policies, for all their other flaws, do provide a very simple decision tree.
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.
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/
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.
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.
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.
22 comments
[ 2.5 ms ] story [ 56.2 ms ] threadMight be worth contributing to if you are interested in HTML5 game dev or have some experience with the potential legal issues surrounding the project.
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_issu...
Edit: Concern about trademark issues is also what apparently led to the Super Mario Clone FOSS project (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, though it's from 2003.
"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 ;
- [UK:] 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.
Why did Nintendo let the application for "Mario" lapse? I can think of least three options: 1) it was by chance; 2) their lawyers decided the trademark won't be granted; 3) they thought it was somehow undesirable to own the trademark for the word "Mario"; I wonder what it really was.
Anyway, you're right. The GP was mistaken that you cannot trademark common names [5]. Looks like he was right that "Mario" isn't a trademark of Nintendo's but for the wrong reason.
[1] Trademark Electronic Search System, http://tmsearch.uspto.gov.
[2] You can paste it into their "Free Form" search form. Unfortunately, it looks like you cannot link to search results directly.
[3] http://tsdr.uspto.gov/#caseNumber=73397991&caseType=SERIAL_N...
[4] http://www.uspto.gov/trademarks/basics/abandon.jsp
[5] For US examples see, e.g., http://tsdr.uspto.gov/#caseNumber=74259941&caseType=SERIAL_N... and http://tsdr.uspto.gov/#caseNumber=85026053&caseType=SERIAL_N....
Most of the time that argument is a convenient cop-out. You'd have to abandon your trademark pretty hard to lose the rights to it; leaving a few obscure online projects unmolested won't matter.
The real deal is that companies are very protective of their IP because they don't want anything to potentially impact their brand(s), and lawyers are eager to bill for as many hours as they can. It's possible that IP owners could commit a small team of goodwill ambassadors to filter alleged infringements and send licenses instead of (or quick on the heels of) C&Ds to good projects, but who's going to do that?
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-criminaliz...
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
[2] http://platformersai.com/
[3] http://webdocs.cs.ualberta.ca/~cdavid/starcraftaicomp/
They have noticed and have alleged copyright infringement:
http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/20...
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
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
[2] http://pacman.shaunew.com/play/index.htm#cheat_pac
Except that they did. http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/17...
N.B. I am not a lawyer.