I’ve often made the point before that Nintendo hates you, dear Nintendo fan and general gamer. Between taking down fan-made levels, fan-made games, and going to war with all the ROMs everywhere, Nintendo values an overwhelmingly tight grip on its intellectual property rights far more than the natural desire by its own fans to express their fandom. The speed and reliability of Nintendo’s lawyerly involvement has become something of a legend on the internet, with folks that make these expressions of fandom often joking upon release that it’s only a matter of time before the suits come calling.

This held true with Mario Royale, a delightfully simple little web game created by a fan that allowed players to play through Mario Bros. levels alongside up to 74 other simultaneous players. The classic game had never been used for this sort of thing and it was quite interesting to watch how it all worked. It’s also worth noting that the game was playable for free, meaning there was no commercial aspect to it. Despite that, you all know what happened next.

Given Nintendo’s litigious reputation when it comes to fan games, it’s perhaps no surprise that the “game got DMCA’d,” as creator InfernoPlus noted in a comment on the game’s YouTube trailer over the weekend. InfernoPlus himself didn’t seem all that surprised. In an interview with Vice last week,he said he “anticiapate[d]” a letter from Nintendo. “I’d say it’s [a] 50/50 [chance of attracting Nintendo’s legal ire], maybe more, because it got so big all of a sudden. If [Nintendo] does, I can just re-skin it.”

Now, that’s precisely what’s happened. Following a June 21 “DMCA Patch,” the game that was Mario Royale is now DMCA Royale. While the gameplay is unchanged, the game’s music, sound effects, and in-game sprites have been replaced with much more generic versions—including a new player character named “Infringio.”

Beyond how clever this all is on the part of InfernoPlus, the changes made to the game are important for other reasons as well. By changing the assets to no longer be clear rips from the original Nintendo game, it should have put the game in a place where it was no longer infringing. By changing the name of the game, the characters, and the messaging around the game to focus on the fact that the original was DMCA’d by Nintendo, the game also transformed from a cool experiment into something in the realm of parody and social commentary. That last bit is important, because it should have also transformed the game into something that would pretty clearly fall under fair use.

Which is why it’s odd, given both of those factors, that you also no longer can play DMCA Royale, as Nintendo’s lawyers apparently issued threats over that game as well. At the URL for the game, all that is left is a message from InfernoPlus saying it had to take the new game down as well.

Unfortunately, Uncle Nintindie’s lawyers have informed me that, despite my best efforts, the game still infringes their copyright.
They refused to give me specifics (I asked multiple times) but it would seem that either the level design or general mechanics are still too close to the original game.

As a result I can’t just blindly change the game and leave it up. Doing so would put me at risk of further legal action. I’ll likely talk in detail about the game and it’s short lifespan on my youtube channel in the coming weeks.

I’m sorry about this guys. It was fun while it lasted.

It is equally unclear to me what Nintendo’s continued problem with the reskinned game could be. The specific expression in the game assets that might have been copyrightable were removed. What was left was a transformative work that may have mirrored the basic game mechanics from the original Mario Bros. game, but those aren’t copyrightable. On top of that, as I mentioned above, this new work seems like pretty clear fair use to me, in that it both serves as commentary on Nintendo’s aggressive behavior and is also a clear parody of the original game. Were this to go to court, it’s hard to see how it wouldn’t result in a win for InfernoPlus.

But, given the legal war chest at Nintendo’s disposal, that doesn’t ultimately matter. A small developer making a game as a fan and as a cool little experiment isn’t going to risk its existence to have such a legal fight. It’s worth pointing out briefly here, and I’ll expand on this in a separate post, that Nintendo had many other options than DMCAing this game to hell at its disposal. Why didn’t it engage any of those other options?

Because Nintendo hates you, that’s why.

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