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Josh Goldberg, a student at Rensselaer Polytechnic Institute, has built an HTML5 version of the NES classic Super Mario Bros., and made it available to play for free at fullscreenmario.com. Beyond pixel-by-pixel recreations of the original game’s 32 levels, Goldberg’s site also includes a level builder, where players can create their own unique stages, and save them as text files.

Perhaps not surprisingly, Nintendo has asked Goldberg to take the site down, and legal action may follow. In Slate, Ryan Vogt argues that Goldberg should take fullscreenmario.com down, as soon as possible, because

Mario remains commercially significant for Nintendo. You can download Super Mario Bros. for a few bucks to your Nintendo console or hand-held system, and the company is still adding games to what remains the most consistently excellent series in the medium. Mario, the worldwide ambassador for video games, rivaling and sometimes surpassing Mickey Mouse in recognizability, is intrinsically tied up with Nintendo. For the company to hand its mascot’s pioneering adventure over to the public would mean not only allowing Goldberg to give it away, but Microsoft and Sony to sell it on their gaming systems. If that doesn’t make your heart shudder, maybe you never loved the smiling plumber in the first place.

In the Washington Post, Timothy B. Lee argues that our overextended copyright system “impoverish[es] our gaming culture.”

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.

Vogt is totally right that Nintendo is legally entitled to ask Goldberg to take his FullScreenMario site down. However, it’s far less obvious to me that companies should be able to maintain indefinite monopolies on their IP, especially when that IP consists of characters rather than even specific games. Vogt “shudders” at the thought of Microsoft and others selling (and creating) Mario games. But it strikes me as less-than-self-evident that allowing individuals (or corporations) to create clones of 30-year-old games would in any way prevent developers from creating new games themselves. The 1980s Filmation legally-not-related-to-the-1984-film-of-the-same-name Ghostbusters cartoon doesn’t seem to have had a negative impact on The Real Ghostbusters cartoon, aired at the same time, or the film/comics/TV/video game franchise as a whole. It’s hard to argue that CBS’s Elementary has any sort of negative impact on the BBC’s Sherlock, or the Robert Downey Jr. Sherlock Holmes films.

We have, however, become so accustomed to the idea that Mickey Mouse can and should always belong to Disney that we’ve allowed our copyright law to basically preclude the possibility of open and ongoing participation in our own cultural properties. Films get stashed away in the “vault.” Regional theatre groups perform Shakespeare again and again because the classic American plays of the early 20th century are still under copyright and often prohibitively expensive to produce. Too many old video games simply disappear.

It doesn’t have to be this way. It’s simply ridiculous to say that love for a cultural property bears any sort of inherent tie to a love for their corporate parent. Nintendo has, rightfully, made a great deal of money off their beloved plumber, and as they create new works around Mario, those works should carry the same strong copyright protections as the original game. But — and this is a big “but” — that protection should carry a definite, limited term for each individual work. And that should necessarily mean that the characters themselves are protected as distinct entities only during the specific term of the original work.

Would that mean fewer Nintendo Mario games? Maybe. But maybe not. Might it mean that Nintendo would have an incentive to create more first-party properties rather than simply relying on Mario, Zelda, and every once in a while, Kirby?

More importantly, it would mean that the preservation and continued playability of old games would be an open-source project rather than a hit-and-miss matter of whether the games remain profitable commercial properties. And it would mean more new, weird, unexpected games that build on a free and shared cultural heritage.

(Update 11/11/13: FullScreenMario.com was taken down on November 1 after an official Digital Millennium Copyright Act complaint from Nintendo.)

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