Editorial: Kidnapping Princess Peach - Fordham Intellectual Property, Media & Entertainment Law Journal
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Editorial: Kidnapping Princess Peach

Editorial: Kidnapping Princess Peach

Josh Goldberg is accused of not only kidnapping Princess Peach, but also of running away with Mario, Bowser, and the Koopas too! This college student recently released an online, full-screen version of Nintendo’s Super Mario Bros for free. This game is  the cumulation of nearly a year’s work for Goldberg. He “painstakingly recreated” the game in HTML5. The levels. The music. The characters. Everything, is exactly the same, albeit now it is in a WIDESCREEN format, as it was when Nintendo originally released the game back in 1985 for the NES and therein lies the rub. (Do I really need to tell you what Super Mario Bros is? If I do, I have to ask, what were you doing in your obviously misspent youth, practicing shin kicking?!) Although Goldberg points out he recreated the game from scratch, i.e., he did not simply take the levels from an existing ROM and use that as a basis for his online version, he “recreated” the mechanics, the music, the environments, the characters, etc. of the original to perfection. In addition, Goldberg had incorporated some new features, such as random levels and a map creator. All of this has lead some to wonder whether or not Nintendo would take kindly to this kind of recreation of one of their most beloved and iconic properties. In short, they have not. Nintendo has claimed that the game infringes on their copyrights.

Nintendo’s claim as well as the reasoning behind it has, shockingly, sparked debate and outrage on the internet! Or, at least, it should have.  In all honesty, this story hasn’t so much sparked debate and outrage (so far) as it has irritated a few snarky commentators and I, for one, can not see why it failed to start an all out brawl. This is a case that is emblematic for one of the most divisive issues in all of online comment sections: Are copyright holders simply big meanies who want to crush the little guy for nothing more than myopic business motivations and cheap thrills or might they actually have a point?

On the one hand, there are copyright holders who want to protect their intellectual property as well as those who simply feel that people who create something are the ones who deserve to reap the benefits and that who infringe on those might do well to use their skill and creativity to come up with their own intellectual property. On the other, there are those who believe the copyright system is fundamentally flawed and that, in cases such as this, where any purported benefit to the copyright holder that is seeking to enforce their copyright is minimal or non-existant, seeking to enforce that right only stifles creativity and deprives the public of some good.

It seems to me that the disagreement between these two camps in the present situation mainly arises out of one of the following two different viewpoints: First, there is is the simple and cynical viewpoint; people do not want to respect other peoples work when it is easier for them or beneficial to them not to. They either do not realize, do not care, or do not think it worthwhile to not infringe upon the copyright of another person or company.

The second viewpoint is more complicated, but kinder to differing individuals; perhaps there is a real disagreement about what role copyright has or should have and for who’s benefit is it really for. Is copyright chiefly a tool which is granted to producers to prompt them to bring a benefit to the public (by ensuring them that they will have a some way to be rewarded for their effort)? Or is it mainly a tool to make sure that a producer’s fundamental right to enjoy the fruit of their labor is secured and that any public benefit it merely a happy side effect ? It seems to me that depending how you feel about that second issue, unless you do not mind taking the cynical point of view, will determine how you feel about this Super Mario Bros issue.

Finally, I’d like to close by mentioning that this issue brought back one much more fundamental question from my childhood: Sega or Nintendo?

Daniel Nowak

Daniel Nowak is a second year Fordham University School of Law student and an IPLJ staff member. His interest in IP flows from his background in philosophy, late-night discussions with his programmer brother, and a sense of moral righteousness which stems from having watched too much Batman and Superman as a child. In his spare time he enjoys listening to podcasts, folding increasing complicated origami models, and expounding the virtues of the Oxford comma.