Thread by @3rdLavaDolphin

Today is Super Mario World's 30th Birthday (in Japan). Happy Birthday Super Mario World! 🎉🎊🥳

To mark this occasion, here is a special twitter rant that I promise is eventually at least slightly related to SMW: (1/96)

Until very recently this year, if you went to nintendo.com and browsed through their legal files, you would be able to find an article on Nintendo's stance on emulators and piracy at nintendo.com/corp/legal.jsp. That article contained this direct quote:

"U.S. copyright laws state that copyrights owned by corporations are valid for 75 years from the date of first publication. Because video games have been around for less than three decades, the copyrights of all video games will not expire for many decades to come."

Despite that quote, it's actually 95 years in the U.S, while most other countries are around 70. It was 75 years from 1976 to 1998, but the 1998 extension of 20 years applied to existing works, not just future works. Let's not dwell on that though.

If you don't believe me on this quote, you can still find the equivalent site still up on Nintendo Australia's site as of this tweet: nintendo.com.au/legal#copyrigh…. There are many other goodies on the full page which I won't cover here.

Nintendo of America seems to have removed the corresponding page though, and just in time. Or perhaps not in time, as Super Mario Bros. is celebrating its 35th birthday this year. In any case, this out-of-date quote was interesting to me so I looked into it further.

Best I can tell, Nintendo wrote that particular line in the article sometime between 2007 and 2009. Video games existed as far back as the 1950s and IBM even sold some for their computers in the 60s. But consumer video games really began in 1972. Still way more than 30 years.

Perhaps Nintendo wouldn't call those very early games "video" though as they played on a computer screen rather than a television. But make no mistake, there were innovative games being made, like 1962's Spacewar!, which may be the oldest computer game you can easily play today.

The math for "less than 3 decades" doesn't really work. If Nintendo wrote it in 2007, that would be 30 years after their first ever home consoles, the Color TV-Games (77). Is that what they were talking about? I thought maybe at first.

But Nintendo was involved with video games well before that: they manufactured light guns for 1972's Magnivox Odyssey. A couple years later they got the rights to distribute the Odyssey in Japan.

Nintendo also made arcade games as early as 1973. The Laser Clay Shooting System was their first entry into the market (an interesting story in its own right). It is the direct ancestor to Duck Hunt (76), which predates the NES game of the same name by 8 years.

Officially, Nintendo technically doesn't consider Laser Clay Shooting System a game, and they say in their own articles that their first arcade game was the (now lost) EVR Race (75). I'm a bit unsure how they classify Wild Gunman (74).

And even EVR Race was not technically a video game. Arcades had a wide mix of mechanical games (e.g. pinball), film, and projectors, but in the modern sense "video game" usually means there's a processor generating a video feed, which wouldn't come until Reversi (78).

That said, most Nintendo games that the average person would think of as "early" today would have fit in that 30 year period in 2009, including Donkey Kong (81) and Game & Watch (80). I'm not aware of any Nintendo IP from 1979 or earlier that's still relevant today.

(And no, 1976 Duck Hunt doesn't count as relevant for this. The only thing it shows is a single duck on a projector screen, moving in a curved pattern. The duck doesn't match the NES duck's design, and there is no dog...

It's definitely an inspiration for NES Duck Hunt and an interesting piece of arcade history, but no IP from that carried over. Wild Gunman is much closer to its 1984 NES version but also clearly different, and NES Wild Gunman isn't nearly as well-known as Duck Hunt.)

If you assume they were only talking about Nintendo-developed *video* games (in the above sense), then "less than three decades" might have been true when they wrote it. And it was true for those games that people still care out. But it wasn't true for video games generally.

At this point I got more suspicious of the quote. Why would it say "three decades" without specifying "Nintendo" games? Changing it to "four decades" would not have changed the meaning at all. Did Nintendo employees really just guess how old video games were without checking?

While "four decades" still wouldn't *technically* be correct when you account for the early IBM mainframe games and even earlier stuff, few would complain about ignoring video games prior to 1972, considering they were basically limited to a handful of academic institutions.

I looked into it, and discovered something surprising. The line actually seems to have been lifted out of a 2004 legal white paper "Use of a Game Over: Emulation and the Video Game Industry, A White Paper" by Conley et al. That paper contains a footnote with the exact phrasing:

"Because video and computer games have existed for less than three decades, the copyrights of all video and computer programs will not expire for many decades to come." There are small omissions in Nintendo's version to match context, but otherwise it's the same sentence.

The white paper predates anything similar on Nintendo's website by several years. I highly doubt that those authors copied from somewhere else without attributing it, so I'm content to say that this article is the origin of that particular phrasing.

An aside, at the time of publication of the white paper, "three decades" was still wrong. But it's at least close. The initial home video games released in 1972 never reached wide success. That wouldn't really come until technical improvements were made in 1975.

Arcade was a bit different; there were popular video games in arcades as early as 1972, though there was also a crash after 1972 which took a year or two to recover from. But maybe it doesn't really matter for what we care about.

Given that the content is a footnote in a legal document, not a history of Video Games, and was written at a time when finding reputable information on the internet was still a bit dubious, we can perhaps forgive the authors for such a mistake. Back on topic, the point is this:

Someone who was tasked with writing Nintendo's official stance on *copyright* issues decided it was a good idea to simply *copy* from a *copyrighted* work. Yes, a short sentence like this is minor, but it is still protected by copyright. I hope the irony is not lost here.

To be clear, *quoting* a copyrighted work is often allowed under fair use, but they did not provide attribution so this is quite dubious as a quote. And even still, quoting isn't always fair use.

I know of journals where 25 words or less with attribution is the cutoff for what they view as "fair use". Beyond that you have to get permission and even sometimes pay licensing fees or they (say they) can sue you over it. Academics have to be very careful about this stuff.

This is right on that line, but without attribution. It's definitely ethically problematic to not identify the quote (plagiarism), and potentially legal trouble also.

I doubt it would happen here (not least because of the statute of limitations), but if the journal decided to sue, Nintendo would need to have a defense. Maybe arguing that the case is "de minimus" or too trivial would get you out, but you really shouldn't be copying at all.

And it's not clear that "de minimis" applies here. There have been infringement cases based on individual song lyrics only a few words long. The standards are different for music and technical writing, but it's still a case that would have to be decided.

And of course, with copyright, if there's a case to be decided, the parties would almost always just settle instead. Especially for Nintendo, their lawyers have better things to do than this.

(The journal also probably wouldn't bother with such a case. It's a dumb case. But it's dumb entirely because Nintendo did something that any grown adult is supposed to know that you can't do, and certainly anyone writing about copyright.)

I suppose it is entirely possible that the author of Nintendo's page got permission. But it seems like far less effort to just rewrite the sentence than to get in contact with the journal for permission to copy without attribution. So I really doubt it.

Anyway, rereading the rest of Nintendo's legal page, there are a bunch of other very suspicious quotes. About half of the lines read like they were written in a high school report by a slightly below average student, and half of them read like they belong in a legal journal.

I found a some quotes that were suspiciously similar to legal writings, but most had enough changes that I wasn't completely sure. I won't bother listing things here. But the possibility that someone just copy-pasted together from a bunch of legal articles...

...and then wrote a few sentences themselves without even trying to emulate legal style, is legitimately something I've laughed at for several years now since discovering this. Keep in mind this was the company's official stance on *copyright* issues.

That said, in a weird way it's also on-brand for them. Many of Nintendo's earliest games from the 70s were knockoffs, either of classic games like Reversi, or of already existing games like Block Fever, their 1978 Breakout clone, and Space Fever, their 1979 Space Invaders clone.

Did Nintendo violate the copyrights of Atari and Taito back then? It's hard to say for sure and certainly irrelevant today, as the statute of limitations has long since expired.

It's likely that they didn't because copyright protects the artistic, not functional, elements of the works, and the artwork and music aren't directly copied. But the lines here are a bit less rigid than they seem; see e.g. the tetris clone cases.

The point is, we shouldn't forget that one of the most successful (and in some cases litigious) gaming companies today might well have gone under if not for their bootlegging operations.

And you can bet that if a small company bootlegged some Nintendo work today, they'd consider filing suit regardless of the technical details of the case. Just about any big media company will. With copyright big companies rarely need to win in court to win the case.

This same pattern has happened in just about every medium many times, and is personally my biggest complaint with present-day IP law. On a purely empirical basis, pirates, bootleggers, and others who legally could have been sued to oblivion often go on to produce original works.

The stated goal of copyright law is to promote the creation of original art, but if the law was applied to the letter, many media companies (including possibly Nintendo) would have closed down before they ever had a chance.

For big companies like Nintendo now, they *still* don't bother to follow copyright law themselves (c.f. the plagiarized legal page) since they can afford to pay out settlements and it'll basically be a wash between the big media companies.

But small creators and companies often do have to (at least try to) follow copyright law because they can't afford to get sued, even if they would win the case on merits. It literally happened all the way back in 72 with Atari Pong and Magnavox.

The overall effect often isn't to help artists protect their works, but to force those artists to partner with one of just a few huge media companies. Yes, some upstarts like Nintendo in the 70s do survive, but that has more to do with luck than anything they do.

We'll never know how many great works died prematurely because the person who had them wasn't afforded a fair playing field due to copyright, either from literally getting sued or just being unable to pay some inflexible licensing fee.

But we can be sure that the big media companies will do whatever they can to succeed without innovating. Look no further than pop music, which all sounds the same and has for decades. (Credit where it's due: Nintendo is a rare exception, and still does a ton of innovation.)

(Nintendo isn't the best example here. If you want to see cases right now, one place to look is emerging media sites in China like Bilibili. It started basically as an anime piracy site, but in the last 5 years has transformed into a content creation platform worth billions...

Bilibili never could have afforded to enter the streaming video market with legal content. But if a legitimate Chinese content creation platform was going to appear, it's natural that it would end up being on a site like Bilibili since they had a head start of many years.)

When it comes to smaller creators, the whole copyright system seems built to do pretty much the opposite of what the purported reasoning for it was in the first place. Something needs to be changed, probably a lot of things actually.

I don't know exactly what reforms ought to be made, but certainly reducing the copyright term would be a good start. A thirty year old work like Super Mario World being protected "for many decades to come" seems pretty ridiculous.

For pretty much any artistic work, the bulk of the profit comes quickly during its limited period of cultural relevance. SMW had its time in the light. Nintendo made tons of money off it. And now, it is dated. If Nintendo never made another dime off it they'd still do just fine.

At this point, copyright isn't protecting the work, because even if someone else did copy and sell SMW, it wouldn't sell well. It just isn't impressive by current standards. Heck, it wasn't that impressive any more in 1995. Most people who play it now do it for nostalgia.

All copyright is protecting is Nintendo's ability to get another $10 for SMW out of you every time a new system releases. Or more egregiously, $60 for 3D All-Stars. All games you probably already own.

And the kicker is, even if those games were public domain, Nintendo could *still* release them anyway and they'd probably get just as many sales. People buy the new releases primarily for the convenience of playing on a modern platform.

Sure, if SMW was public domain, you could play it on your computer for free. But let's be real here, you can already do that and lots of people do, legal or not. And if you want it on your 3DS or whatever you'd still need to pay up.

If they're really worried about selling rereleases though, they could make graphic updates or add new content or something. None of which would be terribly difficult. Purists like me would complain about pretty much any change but realistically most fans would support it.

They could even bundle it with some cheap "limited edition" collectible and charge twice as much. Honestly I'd still buy it and so would way too many other people.

In my mind, a well tuned copyright term would be timed to last based on relevant technological developments. That's how patent law works (in principle). Maybe for books decades makes sense, but for games things move so fast that a 10 year old game is already technically obsolete.

But instead, for copyright, just about every work that will be culturally relevant at any point in your lifetime will never enter the public domain in your lifetime.

The penalty system for copyright also needs reform. That the DMCA is completely inadequate for the modern internet is pretty much universally agreed upon at this point. But the problems go deeper.

In principle, if you make an hour long video that uses a 1 second long audio clip which is copyrighted, the audio clip's rights holder can sue for all the money made by the video as damages.

Would they win that much? It's a bit hard to say, but realistically it wouldn't go that far because almost all copyright cases settle.

That doesn't mean this is unimportant though; if they can claim everything as damages, they hold the cards in those settlement negotiations. When they come back in settlement negotiations with a licensing fee that's 10x what you'd normally pay you're forced to go with it.

Additionally, there's "statutory" damages, which mean that for most copyright violations you owe something like $750 even if you didn't make anything and they didn't lose anything. Multiply that by 3 if the violation is "willful" (if the judge thinks you knew it was copyrighted).

This is so broken that companies can basically sue random individuals with only a small amount of evidence. If you are served such a suit, even if you did nothing, the companies price the settlement so it's cheaper to settle than to even mount a basic legal defense.

Even if you talk with a good lawyer, they'll tell you to pay the company $3000 or whatever, because fighting the case long enough for them to drop it would cost you more. Since the trolls almost never go to court, they can just keep getting away with it without fear of sanctions.

I've often wondered why more media companies don't pursue this type of copyright trolling more, since it's almost trivially easy. The big offenders are mostly just adult movie studios, but in principle everyone from the RIAA to Disney to Nintendo could be doing it.

It's pretty clear that the main reason is that they have more lucrative business elsewhere, and doing too much would risk fan pushback and even copyright reform.

Pushback on the RIAA over the Napster suits was enough for them to stop suing end users entirely in 2008, and if even the RIAA won't touch this stuff, then it's pretty clear that only the scummiest will. Which maybe explains why the biggest trolls now are all adult movie studios.

But if e.g. 20 years from now Nintendo goes bankrupt and some Chinese mega-conglomerate buys up their IP, don't be too surprised if this starts. If the laws were followed to the letter, there's probably *trillions* of dollars being left on the table here across all media.

And if you think all these problems are just in the U.S., think again. Copyright law is international. You can be sued almost anywhere in the world for violating copyright, and there's a very high chance your country's copyright system is almost as broken as ours is.

I'm sure many people and corporations who stand to make money off longer copyright terms and stricter penalties disagree with me. And changing copyright law legislatively is pretty much a non-starter because those companies lobby extensively.

But I suspect most people who are actually creating new artistic works would agree with me that some changes are needed. If reform does happen, I hope legislation is based on their needs, not the needs of the media conglomerates.

How does this relate to Super Mario World? Well, as you probably know, there is a vibrant SMW romhacking community that still creates new content for the game, including music, graphics, levels, and even custom code to change how the game runs.

The amount of content made in total far eclipses the original game. SMWCentral has well over 1000 hacks on it, and those are just the "good" ones. Some of them are much bigger than the original game. Within copyright law, all of these count as "derivative works".

For derivative works that aren't licensed, the original rights holder can limit distribution as they choose. That doesn't just mean a ban on streaming hacks, which they can clearly do, but I'd argue Nintendo can even take down the distribution if they decide to.

I'm sure you are thinking "we distribute hacks via patches that don't contain the original game, so it should be safe, right?". Unfortunately I think that is a very optimistic reading of the law.

Yes, patch files don't contain the original game, but that is trying to circumvent the problem by being smart. The issue, in this analogy, is that copyright law is stupid.

Reading the law, I think the patch should still count as a derivative work, even if it requires a legitimate original copy to use. Copyright law doesn't really care what the format of the content is or how it is encoded, it cares about it as an artistic work.

To be sure, there's barely any precedent for this, and there would be an argument to have in court. You might even win. But it isn't the slam dunk solution to copyright that many people think it is. It's a stopgap measure that might be just enough for Nintendo not to bother.

It's also clear from a full reading of their plagiarized legal page that Nintendo is (or at least was) not that happy with things like the romhacking scene. And they've taken action on it before, e.g. by taking down a bunch of romhack videos and TASes on YouTube prior to SMM1.

For the most part, they let us do our own thing, and actual actions taken by Nintendo against hacking have been relatively rare. Sure, there are still cases like the recently cancelled Melee tournament, but if Nintendo really wanted to, they could outright kill the hacking scene.

So what's the problem then? The issue is that people are making free new content for Nintendo's games, bringing people into their ecosystem or keeping them there. It's purely beneficial for Nintendo. They stand to lose nothing and likely make money by letting it happen.

And those people have to pray that Nintendo doesn't feel like shutting it all down because some executive has a bad day or something. When it is quite possible that Nintendo should be *paying* people to keep doing this by reasonable accounting.

(I'm not literally suggesting Nintendo actually should, or even could, pay fans to make hacks of their games, only that the added value to their brand from these works is substantial.)

I do think many people at Nintendo are at least somewhat supportive, but it definitely isn't everyone. And I don't think Nintendo is the worst gaming company here either. Some other Japanese companies are even less supportive of people making content for their games.

With 30 years having passed, we still have 65 years (a.k.a. "many decades") before SMW enters public domain in the US and creators can finally stop worrying about this. I don't know if the romhacking scene will survive that long, but I do know it's crazy that it has to.

I mean, that's 2085 we're talking about. I don't know what kind of crazy games will be popular then. Heck, I don't know what will be popular in 10 years. Maybe it will be fully immersive VR open world games.

Or maybe mobile gatcha takes over completely and we all die inside more. That does seem to be how mainstream gaming is heading, because squeezing money out of people with addiction issues is easier and more profitable than actually just selling a product.

Actually, now that I think about it, it seems so obvious that if when we eventually do get fully immersive VR it will be packaged in FTP gacha games, which is really super disappointing and I hate it and I'd tell you to get off my lawn but I can't afford a lawn.

Whatever the case may be, pressing the 12 buttons on a controller to move Mario and his dinosaur companion through 72 levels and 96 exits will feel far more quaint than it already does today.

In any case I'm glad that this page was removed from the US site this year. Not just because of the somewhat dumb (and somewhat plagiarized) things it says, but also so that we can canonically celebrate Super Mario World's 30th birthday without contradiction.
🎂🎁🥂

Except in Australia. In Australia it seems that video games age like my grandmother, who miraculously celebrated her 29th birthday every year for 62 years in a row. (96/96)