Agreed. Nintendo seem to be well within their legal rights, but surely there was a more constructive way to handle this situation than lawyering up first and asking questions never. They could have offered to buy him out and put the game on their own site to bring in traffic, or even just come to some arrangement where his site operated with their blessing in return for promoting newer Nintendo products in a useful way. There was a missed opportunity here.
But Nintendo doesn't need his traffic, nor do they need him to help promote their products. And if they wanted a browser-playable version of Super Mario Bros. I'm quite certain they could find their own people to develop it.
Literally, as nice as this was, it has nothing to offer Nintendo (that wasn't taken from them to begin with).
Literally, as nice as this was, it has nothing to offer Nintendo (that wasn't taken from them to begin with).
Well, apparently he had 2.7 unique visitors in a month. That's a lot of advertising they could have had for their current product range, and I don't imagine most of those people are going to go out and buy some new gear from Nintendo just so they can play a nostalgic game of Mario.
No doubt Nintendo could have developed a similar web-based implementation of Mario if they'd wanted to, but the facts appear to be that they didn't and someone else did. They could probably have benefited from that, and maybe earned a bit of goodwill from the community in the process, for the cost of a mid-level rep spending a few minutes talking with legal and writing a couple of e-mails.
They may legally have had no other options but to point and shoot, especially when it became clear that Full Screen Mario was popular, but IANAJL so I don't know.
I see your point, though i'd still contend Nintendo doesn't need eyeballs or goodwill when it comes to their flagship products. They can pretty much stick Link or Mario onto anything and it will still sell. You can play the original Mario officially on newer platforms. One of my favorite desk toys is a power-up mushroom I got from Hot Topic that had candy in it which I immediately poured into the trash because the thing it came in was so cool. The popularity of Full Screen Mario demonstrates that - people love Mario, especially the old 8-bit version. It's quite possible that Nintendo discovered there was a market to be tapped with browser-based games that they were unaware of (or unaware of the scale of), but they own Mario anyway, and they don't need to do Josh Goldberg any favors.
Although I completely agree that a great deal of potential creative value is being lost by not allowing classic games to be legally remade (I would love to take a crack at some Intellivision games, especially the old TSR adventures) that's an abstract issue. Nintendo's not an indie game factory that needs to build cred within the gaming community, and while the discussion about the value of derivative works and copyright is worth having, this outcome was pretty much a fait accompli.
While I agree with your point, and no one is disputing that Nintendo owns all rights to Mario and they may not need more visitors, goodwill is a difficult thing to earn. It's even easier to lose. Time will tell, but hopefully they will either take this or have their own dev team release something.
That fact is that this project is now public domain, it's right there on Github and any of us can take the source code and build it. Of course it's illegal to host it, but that doesn't mean that those more techincally inclined couldn't run the game locally.
