Nintendo says this amazing Super Mario site is illegal. Here’s why it shouldn’t be. (Updated)

October 17, 2013

A screenshot from Full Screen Mario. (The Washington Post)

Update: The Full Screen Mario site disappeared on November 2, 2013. A tweet by the site's creator blames Nintendo for the takedown. Our original story, dated October 17, appears below.

Like any child of the 1980s, I was excited to discover Full Screen Mario, a meticulous recreation of "Super Mario Brothers" built on the latest Web standards. Not only does it let you play the original 32 levels, it also offers randomly generated new levels and even the ability to design your own. And the software is open source, allowing others to add features.

There's just one problem: Nintendo says it infringes its copyrights.

"Nintendo respects the intellectual property rights of other companies, and in turn expects others to respect ours as well," Nintendo said in an e-mailed statement. "Nintendo is seeking the removal of the content, as we vigorously protect against infringement of our intellectual property rights."

The site's author, college student Josh Goldberg, concedes that he didn't get permission from Nintendo to create the site. He says he wasn't worried about the copyright implications when he started working on the site last year because "I didn't think it would be a big project." Now that it's getting broader attention, he says, "I honestly don't know what to do in this situation."

James Grimmelmann, a legal scholar at the University of Maryland, believes Nintendo would have a strong case in court. He says the graphics and music from the game are protected by copyright, and the levels and game mechanics likely are as well. "I could cite you case after case involving less literal copying than this," he says.

That's a shame, because in a sane copyright system, "Super Mario Brothers" would be falling into the public domain within the next few months. Which would allow Full Screen Mario, and lots of projects like it, to reimagine old video games for a new generation, without facing legal threats from incumbents like Nintendo.

When the United States was founded, the maximum copyright term was 28 years. "Super Mario Brothers" was registered with the copyright office in January 1986, so if copyrights still lasted for 28 years from the date of registration, the game would be due to expire in about three months. Then anyone would be free to re-create the game, as Full Screen Mario does, or to create new games based on its groundbreaking characters, levels and music.

Unfortunately, in the past 200 years, Congress has dramatically expanded copyright terms. For a work with a corporate author — in this case Nintendo — copyrights now last 95 years. That means "Super Mario Brothers" is scheduled to fall into the public domain in January 2082. And that's assuming Congress doesn't extend copyrights again in the meantime.

Full Screen Mario is just one example of the ways long copyrights impoverish our gaming culture. The site supports user-designed levels, so it's easy to imagine a community of amateurs designing Super Mario levels and sharing them with friends as people do today with "Minecraft."

And because the software is open-source, others could extend the software or incorporate it into their own products. Consider "Super Obama World," a satirical game based on "Super Mario World." Creating a game like that from scratch is a lot of work, but it would be a lot easier to do if people could start with the Full Screen Mario codebase. Game designers could also incorporate parts of "Super Mario Brothers" as a "mini game" within modern video games.

Long copyright terms have also crippled the market for emulators, which reproduce outdated video game consoles in software. That allows people to play older games on modern PCs and even smartphones. These old video games became obsolete long ago, but they're still technically copyrighted. And in most cases there's no legal market for purchasing electronic copies of them. That effectively limits the emulator market to people who are willing to break copyright law and able to scour file-sharing networks for copies of old games.

If copyright terms were shorter, old video games could find a new, emulated life when their copyrights expire, just as the Gutenberg project has made thousands of books published before 1923 freely available online. That's especially important because old consoles wear out much faster than old books do. If you find a book published in 1980, chances are you'll be able to read it without much difficulty. But if you find an old Atari video game cartridge, you might struggle to find the Atari 2600 console required to play it.

Imagine if every new smartphone came by default with a free app that let you play any arcade game created before 1985. Long copyright terms prevent that dream from being a reality.

The gaming industry's greatest loss from long copyright terms is the way they impoverish new video games. We only have to think of "Cinderella," "Apocalypse Now" and the many film adaptations of "Romeo and Juliet" to see how new culture is often built on cultural innovations that came before it. Nintendo, of course, still creates new games in the Mario Brothers franchise. But in a better copyright regime, we could have lots of people creating clones, sequels  and re-interpretations of "Super Mario Brothers." Other classic video games of the 1980s, such as "Donkey Kong," "Pac Man" and "Galaga" are ripe for the same treatment. But copyright law stands in the way.

But don't video game companies need copyright protection to encourage them to produce new video games? Of course they need some copyright protection, but 28 years is plenty. Most games make the vast majority of their revenue in the first few years after release. Only a tiny majority of mega-hits such as Super Mario Brothers are still commercially significant after 28 years. And those games have already made their investors' money back many times over.

We've had long copyright terms for so long it's hard to imagine what the world would look like without them. But copyright is supposed to be a bargain between creators and the public: Creators get a monopoly for a limited number of years, and after that, the public gets to use their works for free. But copyright terms are now so long that most of us will die before the videogames of our childhoods fall into the public domain.

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Brian Fung | October 17, 2013