Will SMBX eventually die?

[ElectriKong]

I guess what the 2.0 dev team are doing could be considered worse than what Redigit was doing, so Nintendo could sue Horikawa Otane for leading a project they already told someone else years ago was illegal, since she essentially ignored a warning that was given out to everyone. SMBX 38A may be considered more threatening since it seems to be more publicized and it seems if you are an SMBX youtuber but not part of this community, then you are using 1.4. So 38A may be taken down first. But it would not matter which one went down first since the take down of one of the SMBXs would probably be the death of the other as well, and if not, then Nintendo would take down the other if the people from the game that was taken down moved over to the other, making it even more threatening.

And while it mostly seems that Nintendo does not give a shit, we have to remember that Super Mario Land Returns, an SMBX project, was taken down repeatedly be MediaFire for ToS violations. We can't really be sue what it is. The best case scenario is that it is simply a false positive or that it did actually violate the ToS but not that regarding copyright. It could also just be a MediaFire thing wich would be worse. It could however just be the first of many and we may see more SMBX levels and episodes taken down in future, both on and off MediaFire, and represent the beginning of the end of SMBX. If the take down of SMLR on MediaFire was by Nintendo or on behalf of Nintendo then that could be a hint that Nintendo does care now.

Nintendo may not care now because Mario Maker exists meaning that SMBX is actually competing with an official Nintendo game, and that Nintendo don't think they will benefit without the game's existence anymore. Maybe they think that it is not worth it if they tried to stop SMBX but people have kept it going past the C&D, even if them doing it could mean that maybe we really shouldn't continue attempting to develop SMBX.

[Knux]

Yes, Nintendo could sue Horikawa Otane, but I highly doubt it would come to that seeing as she isn't making a profit off of it. Redigit technically was using ads under the domain name which was copyright. Joey can get away with it ad or not because of the added x.

Mediafire is a funny one. The site (with many others) will probably end up like Megaupload somewhere down the line, but I imagine it does have some sort of detection system and a name like "Super Mario Land" might have got caught up in that. It happens to music a lot.

[Zha Hong Lang]

Hoeloe's already made a good explanation before about the legality of the situation:

We're using something called "fair use" here. The way fair use works, in simple terms, is that you can make a thing using someone else's IP provided it falls into one of a few categories. It's mainly designed to protect things like reviews and parodies, but it's a bit of a grey area when it comes to fan projects like this. The way this sort of thing is usually handled is that the project is provided for free and with no income stream (i.e. the fan project creators do not sell or otherwise profit from the work), and work under the assumption of fair use unless the IP holder challenges it. Usually, most companies will just ignore these projects, because they do no harm, and are a fun way for fans to express their love for a specific franchise. Cases like AM2R are a bit more difficult, because it's now clear that Nintendo was working on their own Metroid 2 remake, and AM2R was in direct competition with that.

As it says on the blog, we believe we're protected under fair use with this project, but if Nintendo suggests otherwise (which they have not done, directly or indirectly), we will defer to their judgement.

Fair use is built so that 1) large IP holders like Nintendo don't have to spend hours upon hours of staff time responding to fan requests and 2) protecting people who seek to comment on, review, parody, etc. IPs.

However, let's say that the worst case scenario does come about, and Nintendo halts development of SMBX2. Even in that case SMBX would not truly die, since it's as simple as removing the elements Nintendo has rights over. We already have the ASMT series, which is a near-complete replacement that has few Mario elements currently (and it's continually decreasing), so it's as simple as replacing the default package with the ASMT package when a C&D comes about. We can keep using the same editor because Nintendo does not hold any rights over the SMBX engine itself, just the characters, trademarks, and art assets. Nintendo neither wrote it nor holds patents over any of its mechanics, so there's nothing which could stop anyone from using it as long as it's not distributed with copyrighted elements.

Also, for the record, SMBX or smbxgame.com including the letter "X" doesn't protect it from Nintendo. They still own the trademark of Super Mario Bros, which SMBX is clearly a derivative of.

[aero]

Fan projects that use trademarked names and copyrighted assets are not fair use, it does not matter if there is or is not profit from it, and fair use is intended to protect transformative content that uses copyrighted IP. Not having ads and not making a profit may keep Nintendo from handing out a C&D but it's still at their discretion and have the legal right to take any action regarding their IP.

[Zha Hong Lang]

Fan projects that use trademarked names and copyrighted assets are not fair use

What's your source for this? As far as I know it's just a legal grey area that's left up to the rights holder, I've never heard it clearly defined as not fair use.

[aero]

Fan projects that use trademarked names and copyrighted assets are not fair use

What's your source for this? As far as I know it's just a legal grey area that's left up to the rights holder, I've never heard it clearly defined as not fair use.

Fair use: https://www.copyright.gov/fair-use/more-info.html
Here it's described that fair use is for transformative material that does not act as a substitute for a copyrighted work. SMBX substitutes Nintendo games with content that does not transform it into a review, educational material, or anything of that sort.

Copyright infringement: https://www.copyright.gov/help/faq/faq-definitions.html

As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

This is the grounds for a copyright infringement, and SMBX would be in violation by being a derivative work and distributed.

Trademark infringement: http://cyber.harvard.edu/metaschool/fis ... n/tm.htm#7
Due to how SMBX is set up and distributed, there is grounds for confusion between SMBX and official Nintendo content. A parent or a child may confuse it and with the use of Nintendo's work in SMBX and on the site, a case can be brought against it.

Trademark fair use: http://cyber.harvard.edu/metaschool/fis ... /tm.htm#10

Fair use occurs when a descriptive mark is used in good faith for its primary, rather than secondary, meaning, and no consumer confusion is likely to result.

Since people may be confused and use of the term "Super Mario Bros." is for a secondary meaning (a Nintendo game) it is not fair use. SMBX is also not a parody of course so that defense also does not apply for a fair use case.

[Taycamgame]

What if it does get taken down, if I still have SMBX on my computer I should be able to use it still, right?

[Cedur]

It won't get taken down, I really want to encourage inductive thinking here (it's never happened before so it won't happen in the future).

[Thehelmetguy1]

It did happen before

[Cedur]

by "it's never happened" I mean that it hasn't happened since 2011.

Multiple people have insisted on Nintendo knowing about SMBX and letting it be. Is that all obsolete from all of a sudden?

[PixelPest]

Whether Nintendo triggers its downfall or not: All things die eventually

[Zha Hong Lang]

It did happen before

Allegedly.

Besides, I had just shown how if Nintendo does give us a C&D, we can keep using SMBX without the elements they hold rights over. We even have some of our own assets to replace many of them.

[Knux]

What if it does get taken down, if I still have SMBX on my computer I should be able to use it still, right?

Yes, you just wouldn't be allowed to reupload it. They can't go on your computer and delete it.

Allegedly.

I can confirm that it did happen around June 2010.

[Zha Hong Lang]

Allegedly.

I can confirm that it did happen around June 2010.

Having evidence that Redigit told other people he had a call is great and all (it can be found elsewhere, too), but unless you present to me evidence from Nintendo's lawyers that they actually called Redigit, I'd have a very hard time believing that it truly happened. I'd believe what you'd say as far as Redigit claiming the call, but no further.

[ElectriKong]

Allegedly.

I can confirm that it did happen around June 2010.

Having evidence that Redigit told other people he had a call is great and all (it can be found elsewhere, too), but unless you present to me evidence from Nintendo's lawyers that they actually called Redigit, I'd have a very hard time believing that it truly happened. I'd believe what you'd say as far as Redigit claiming the call, but no further.

The domain for supermariobros.org (the original site for SMBX) was transferred to Nintendo, so it is proof that there was a C&D for SMBX.

[Zha Hong Lang]

The domain for supermariobros.org (the original site for SMBX) was transferred to Nintendo, so it is proof that there was a C&D for SMBX.

Let me make a distinction in what you said:

The domain for supermariobros.org

This is a completely separate thing from SMBX and always has been. Supermariobrothers.org existed before SMBX did, and continued to exist after redigit took the fangame down. Nintendo may have contacted redigit about shutting down supermariobrothers.org (which I also doubt since the takedown happened nearly a year and a half after the supposed call), but that proves nothing about SMBX.

[AirSeus]

The domain for supermariobros.org (the original site for SMBX) was transferred to Nintendo, so it is proof that there was a C&D for SMBX.

Let me make a distinction in what you said:

The domain for supermariobros.org

This is a completely separate thing from SMBX and always has been. Supermariobrothers.org existed before SMBX did, and continued to exist after redigit took the fangame down. Nintendo may have contacted redigit about shutting down supermariobrothers.org (which I also doubt since the takedown happened nearly a year and a half after the supposed call), but that proves nothing about SMBX.

Well, speaking for those that were there when it happened, seeing it with my own eyes, I am pretty darn sure SMB.org died not long after SMBX got fucked off the site, plus, I don't know how many people have to mention this, but SMBX was targeted, not just the website it was held on, because Redigit was using copyrighted material as stated earlier on in this thread and if I am not mistaken, at one point tried to make profit somehow out of it (ads, shit like that) and plus, having the domain name of SMB.org did not help him either.

It is true that SMB.org existed before SMBX ever did, but not for that long before 1.2 came out (Fuck that version, I hated it, I dunno why I just did), but SMBX is what brought basically everyone to that Forums, I came to SMB.org from a YouTube video when I was literally just searching YouTube for an editor because I always wanted to make my own shit. But the community back then, my gosh, I didn't want to fucking sign up until later on in 2009 because of how fucking pathetic some of it was and was to become (Aka, Kya banning for stupid ass reasons. Buuut, in all honesty, I was not much different when I first joined late 2009 because all I fucking did was spam and get banned 2 times with legit reason, but the 3rd one was literally over nothing after I came back a day later which pissed me off.

But back to the point, sure SMBX wasn't always the main thing on SMB.org, but it became the main thing that thrived on the site. And if Redigit actually went down the cautious root, maybe we wouldn't have had a C&D. But I do not understand your stupid argument saying that it didn't get one when you were most likely not even there when it happened. I don't think that Nintendo would ask for links to be removed and not published if they were only taking down the site, do you?

[Knux]

Allegedly.

I can confirm that it did happen around June 2010.

Having evidence that Redigit told other people he had a call is great and all (it can be found elsewhere, too), but unless you present to me evidence from Nintendo's lawyers that they actually called Redigit, I'd have a very hard time believing that it truly happened. I'd believe what you'd say as far as Redigit claiming the call, but no further.

Nintendo called Redigit and he didn't address matters further. There is also a follow-up message which the (very inaccurate) wiki article didn't add.
He also never released any information between himself and Nintendo, and that's obviously because it's confidential and a private matter and bringing that to public light could have got him into more trouble. What other realistic reason would he have for taking SMBX down? he's not stupid, because making a lie up like that, again, could have landed him in hot water.

[AirSeus]

I can confirm that it did happen around June 2010.

Having evidence that Redigit told other people he had a call is great and all (it can be found elsewhere, too), but unless you present to me evidence from Nintendo's lawyers that they actually called Redigit, I'd have a very hard time believing that it truly happened. I'd believe what you'd say as far as Redigit claiming the call, but no further.

Nintendo called Redigit and he didn't address matters further. There is also a follow-up message which the (very inaccurate) wiki article didn't add.
He also never released any information between himself and Nintendo, and that's obviously because it's confidential and a private matter and bringing that to public light could have got him into more trouble. What other realistic reason would he have for taking SMBX down? he's not stupid, because making a lie up like that, again, could have landed him in hot water.

^^^
This is true, you wouldn't give out information like that because it could have got him into more trouble than he was already in, which no one would have wanted

[Shadow Yoshi]

Hi all, hopefully this post clears up the misinformation in this thread.

It's important to know the legal terminology. There was never a "lawsuit" filed against Redigit, and there was definitely never any significant risk of Redigit going to trial in a court (95% of civil cases end in settlement before even going to trial). What was presented to Redigit was a "cease and desist" ("C&D"), which is basically a way to say "stop what you're doing or we're going to take legal action".

The C&D was received in late April 2011 and came from the Seattle-based Miller Nash law firm. Redigit complied with this C&D, which included these parts (I'm not sure if this is how it was worded, but this is at least what he ended up doing): removing the SMBX download, removing his videos and SMBX-related content, and transferring the "supermariobrothers.org" domain name to Nintendo. He fulfilled the first two requests immediately, but it was a little over one year later (around June 2012) that he gave them the domain name.

It's also important to note that all of this came after Redigit had officially announced that he was done developing SMBX (early April). It was not, as some have suspected, some ploy to rid himself of the program and/or its community. Sure, we haven't heard from the law firm itself on the matter, but they're not obligated to do that and probably aren't even allowed to anyway. Again, there was no "lawsuit" filed, so I don't think we'd be able to find anything that's public information.