To the surprise of few, Nintendo has caused the death of another fan game based on one of its properties. Prime 2D, a reimagining of Metroid Prime, but in a classic 2D style, which first appeared on the internet back in April 2021, and has received multiple updates since, has been shut down. The developers behind the fan project, Team SCU, posted an update to their website, saying that "for legal reasons" they have removed the link to the demo of the game that they had been working on, along with the soundtrack, which consisted of original music composed specifically for it. Team SCU had been working on and off Prime 2D since 2004, meaning it took a handful of months for lawyers to kill a fan game that had been in the making for well over a decade.

This bit of news follows the shutdown of the Project+ bracket at this year's Riptide tournament, while also ironically occurring during the same week as Sonic Amateur Games Expo, in which SEGA actively encourages fans to create fan-made romhacks and even full games based on their properties.

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[kisamesama]

Nintendo has been full of disrespect and selling bs (remake after remake at astonishing prices) to fans for the last 3-4 years and I am thinking ditching all nintendo related stuff soon.

 

[HideoKojima]

I think this is probably wrong. But as other people already pointed out in this thread, the way trademark law works they have to protect their brands. Existing fan games might be net positives for Nintendo's sales (what little they cannibalize is exceeded by the additional sales they promote), but if they lose the trademark they could be fighting clones, which are the inverse - they cannibalize much more than they promote sales.

Licensing fan games would obviate the trademark issue, but Nintendo has always been insular and conservative when it comes to their IP. It would be a big change.

I suggest you take a look at the P&L per game and you'll get what I'm talking about

 

[chrisrlink]

they're killing dreams plain and simple Nintendo's dev's are not immortal they will perish like all humans do, pushing away would be devs will thin out the field eventually,after one c&d some talented people may just give up all together

 

[Exidous]

I suggest you take a look at the P&L per game and you'll get what I'm talking about

The rights holder can only theorize about the rate to which fan games result in cannibalization. And they have every incentive to inflate that number for purpose of beefing up legal threats to accused infringers for lost sales claims.

Similarly, of course, advocates here can only theorize about the rate to which fan games result in net positive sales for the rights holder.

 

[Jacobh]

I think Nintendo will do alright regardless, but there's more corporate support here than I would've expected.

Explaining why a company is doing something, doesn't mean that you agree with it. I'm not personally a fan of Nintendo's actions, but given the context it's completely understandable. Their lawyers are looking at this as part of a long-term comprehensive strategy to protect their legal rights, not as a one-off decision based on the quality of this fan-made game or its creator's intent. Once this started getting publicized on major gaming websites it does weaken their ability to protect their IP if they didn't do anything about it. How much is debatable, but their overall strategy is based on being aggressive.

SEGA has taken a different approach in terms of a legal strategy that does leave them more open in terms of protecting their IP long term. Culturally, they seem like they have always been a different company than Nintendo and they may have decided this was a better approach for them. I think it's hard to say that Nintendo's strategy is bad for business given the relative size / profitability of the two companies. It may be a bad decision for other reasons.

The thing is though, as far as I can understand, these creators are in their full legal right to create these fan games. They're non profit, thus being under fair use. Nintendo threatens and pushes that this is illegal, though it isn't. They've always been deceitful about piracy, modding and fan creation. So yes, they're in their full legal right to be able to take these games down, but their spoken motivation for doing so is false and unjust. Please correct me if I'm wrong, but I believe I heard this was the case.

Just because something is non-profit does not automatically make it fair-use (although most fair use is non-profit). You can see the factors considered here: https://copyright.columbia.edu/basics/fair-use.html. Since they recreating the entire game and intending to distribute it would make it hard to pass a fair use test in the court of law. While I'm sure there are other factors in why they aren't fighting this, I'm sure the author's know they would be unlikely to win if this went to court. Under current IP law, this is one of the stronger cases Nintendo has for issuing a take-down (whether you think the law is good or bad).

 

[SDA]

Oh man, here comes Nintendo. AGAIN.

 

[ChibiMofo]

I just cannot believe people are stupid enough to develop content that clearly violates the intellectual property rights of others. What the hell are they teaching you kids these days in school? Do you really believe the Internet is the Wild West and you can do whatever you want?

 

[HideoKojima]

The rights holder can only theorize about the rate to which fan games result in cannibalization. And they have every incentive to inflate that number for purpose of beefing up legal threats to accused infringers for lost sales claims.

Similarly, of course, advocates here can only theorize about the rate to which fan games result in net positive sales for the rights holder.

Cannibalization of Metroid? I think the game is famous enough and doesn't need a fan made game to make it more famous. Plus it's Ninty after all their brand equity is so important that even if they release a random game it will sell, plus by using targeted marketing spend they can target the right audience to meet the intended figures something that a fan game can't achieve.

 

[Exidous]

I just cannot believe people are stupid enough to develop content that clearly violates the intellectual property rights of others. What the hell are they teaching you kids these days in school? Do you really believe the Internet is the Wild West and you can do whatever you want?

Yes. As a practical matter, we the denizens of the Internet can do whatever we want as pertains to copyright infringement, given the architecture of the Internet.

Actually holding on to money made from infringement is impractical, but any conceivable copyright law is going to be ineffectual in terms of halting file operations. There's a ridiculous anti-circumvention regime built into the DMCA, as if screaming at people: "you aren't allowed to try" prevents trivially simple file operations. Consider instead the absurdity of asserting an "intellectual property right" which purports to restrict the most trivial operations of every computer on the planet.

God bless the architects of the free and open Internet.

EDIT:

Cannibalization of Metroid? I think the game is famous enough and doesn't need a fan made game to make it more famous.

For someone who led with P&L cites, you went qualitative fast.

More fame is more sales, so there obviously is some net sales positive for the universe of Metroid games in the hypothetical of a released fan game. The claim I'm disputing is about which effect is bigger: net Nintendo sales increase from additional promotion/fame from the existence of a fan game, versus cannibalization due to that same game.

Cannibalization is when someone who would have bought a licensed Metroid game does not because of the availability of the non-licensed fan game.

Other edit: An inherent assertion I'm making is that cannibalization is the only legitimate loss that a rights holder could attribute to the existence of a non-licensed copy. It has to be a sale that would have happened, not just slapping a $60 price sticker assumption on some college kid's fan work and seeking treble damages for every copy (which is the claim they make in such lawsuits, and I'm guessing how they value their "L" claim).

 

[Lyomak]

Fan made Nintendo projects should be made with non Nintendo IP, assets, music, etc.

And someone unknown release a free Nintendo MOD for that project. *wink, wink*

 

[smf]

The thing is though, as far as I can understand, these creators are in their full legal right to create these fan games. They're non profit, thus being under fair use.

I think you understand wrong. Profit is not a get out of free jail card for copyright/trademark violation.

Besides, I have no idea if they make money out of page clicks to their web site etc either.

Other edit: An inherent assertion I'm making is that cannibalization is the only legitimate loss that a rights holder could attribute to the existence of a non-licensed copy. It has to be a sale that would have happened, not just slapping a $60 price sticker assumption on some college kid's fan work and seeking treble damages for every copy (which is the claim they make in such lawsuits, and I'm guessing how they value their "L" claim).

It's not the only loss, reputational damage is another loss. Someone who has no idea that metroid prime 2d isn't a nintendo product could see it. The way to solve that is to not use any nintendo trademark or copyright design. If they don't want to bother making a game that isn't violating trademark/copyright, then they are clearly trading on nintendo's good will without paying for it. That good will also has a $ value.

Nintendo choose what platforms their games are available on, that decision also has a $ value.

 

[Boydy86]

Fan made Nintendo projects should be made with non Nintendo IP, assets, music, etc.

And someone unknown release a free Nintendo MOD for that project. *wink, wink*

Fan made Nintendo projects should have no reference to Nintendo?

 

[adamsef]

I’m so happy I have Pirated the shit out of every Nintendo I’ve ever owned!!
I hate them as a company

 

[Exidous]

It's not the only loss, reputational damage is another loss. Someone who has no idea that metroid prime 2d isn't a nintendo product could see it.

That's only a (quantifiable) reputation loss if the non licensed game is bad/worse than the public expectation for a real Metroid game though. Those would be the sort of clones that I concede are net negatives in terms of Nintendo's income.

Nintendo choose what platforms their games are available on, that decision also has a $ value.

That's an interesting point. I agree there is a quantifiable value to the perception that Nintendo's games only appear on Nintendo's consoles. If there were enough Mintendo branded PC games, weakening that perception of exclusivity could reduce future Nintendo hardware sales.

But I think it would have to be more than a few Metroid games to become appreciable.

 

[Mythical]

This is why I don't buy nintendo products anymore.
When they stop killing shit for no good reason I'll start buying again.
You could argue muh copyright, muh ip, they have incentive, etc...
But we all know there are many other better ways to deal with a game's modding community
than to c & d

 

[smf]

That's only a (quantifiable) reputation loss if the non licensed game is bad/worse than the public expectation for a real Metroid game though. Those would be the sort of clones that I concede are net negatives in terms of Nintendo's income.

The barrier is quite low in terms of courts for showing losses.

That's an interesting point. I agree there is a quantifiable value to the perception that Nintendo's games only appear on Nintendo's consoles.

I was thinking more if you skip buying a switch because you played through a home brew metroid, it might cause you to not buy another switch game.

But I think it would have to be more than a few Metroid games to become appreciable.

The courts are kinda on nitendo's side.

 

[Tiger21820]

I think that ALL websites regarding Nintendo derivative works should be in the deep web from now on!

And which Nintendo CEO is responsible for these take downs anyway!?

It's like this:

"Check out this fan game about Mario/Sonic that's in active development! It'll be awesome once it's complete!"

Sega: "Amazing! Hey, why don't you come work for us and use these assets in our upcoming games!"

Nintendo: "GET ON THE F***ING GROUND NOW!!!!!!"

Must I clarify?

 

[BlazeMasterBM]

no surprise. Nintendo does shitty thing. It's the same shit every day.

 

[BitMasterPlus]

This is yet another unfortunate situation where I can see both sides in this situation. Nintendo does have the right, but, I mean, as long as the fan creator doesn't make even 1 cent using Nintendo's IP's for the fan games they make, it's kind of dumb to attack fans like this.

 

[Exidous]

The courts are kinda on nitendo's side.

Oh, I'm not disputing that. I'm attacking the edifice of copyright law in the U.S. as ridiculous elsewhere in this thread.

The part of my argument you responded to isn't the part about that legal claim though, it's about the cost/benefit analysis for Nintendo when considering whether to permit/license/tolerate fan games. Whether the courts will assume every copy of some college kid's fan game that was ever copied should be $60x3 in damages doesn't matter if said college kid is judgment proof - they usually are.

My argument is that as a practical matter, Nintendo should be weighing the fame/goodwill/advertising benefits of (good) fan games against the actual sales cannibalization risk from such good fan games. They should not, rationally, be weighing that benefit against the contrived, ridiculous copyright judgment damages which are not fulfilled in probably 90%+ of claims Nintendo makes. It's in their interest to overprice such items in order to make such inflated claims that then don't get paid. There's an internal logic to it, but it can hardly be called "accurate loss pricing."