In 1996, Nintendo released an installment in the Super Mario series that became an instant hit. Launching with the new Nintendo 64 console, Nintendo introduced an impressive 3D Mario game, entitled Super Mario 64. The game utilized the N64 controller design to move Mario beyond his familiar horizontal screen scrolling landscapes. The Mario series took the character to many different places since 1996; however, gamers crave a remastered re-release of Super Mario 64. To date, no remastered version of the game exists; Nintendo apparently intends to release a remaster later this year. In the meantime, a 4K remaster of the game recently appeared online in a YouTube clip. As you probably guessed, Nintendo quickly shut down the YouTube link and took action to remove download links for the game, citing copyright infringement of Super Mario 64.

The Ethics of Video Game Emulation

Nintendo has a long history with copyright law, as the most litigious game developer relating to appropriated intellectual property. For example, many gamers are familiar with emulation software, which typically run on personal computers and are designed to execute a read-only memory (ROM) copy of a video game. Nintendo takes swift action against ROM hosting sites whenever possible to protect its intellectual property rights, since uploading a ROM likely constitutes copyright infringement. However, from a gamer’s perspective, playing retro games can be an extremely expensive or impossible undertaking. To enjoy original games without a re-release, gamers must spend hundreds, if not thousands, of dollars to purchase original copies.

As such, a lively debate exists between protecting intellectual property rights and preserving video game history. Emulators argue that experiencing historical games through emulation provides value when purchasing the games is expensive or impossible. However, right-holders (including Nintendo) point out that copyrights protect the original intellectual property generated through the creation of the game.

Remade Super Mario 64 = Copyright Infringement

That brings us to the latest version of Super Mario 64 infringement. Interestingly, the Super Mario 64 version that showed up last week was not an emulated version. Instead, someone built the game code from the ground up, optimizing the code for 4K personal computer gameplay. The resulting game differs in source code from the original game, but identical in its display (other than optimized graphics). Nintendo removed any known download links because such a re-creation of the game undoubtedly represents copyright infringement. Moreover, the infringer cannot fall back on the moral high ground of preserving video game history, since the file was not a ROM copy of the game, but rather a rebuilt version.

Nintendo will have the last word regarding Super Mario 64, since the remastered version is rumored to release on the Nintendo Switch later this year. However, Nintendo will have to stay vigilant as similar remastered version of its intellectual property are likely to pop up as well.