Closed Bug 368664 Opened 19 years ago Closed 19 years ago

Copyright infringement on the "Super Mario Bros 3" theme

Categories

(addons.mozilla.org Graveyard :: Administration, defect)

Product:
addons.mozilla.org Graveyard
Component:
Administration
Type:
defect
Priority:
Not set
Severity:
major

Tracking

(Not tracked)

Status:
RESOLVED FIXED

People

(Reporter: gen, Assigned: shaver)

References

(
URL
)

Details

New extension, "Super Mario Bros 3" is using copyrights from Nintendo Corp. without permission. This should not be on AMO.
Alias: supermariobros3
Summary: Copyright infringement on new extension → Copyright infringement on new "Super Mario Bros 3" extension
From my casual research around the web, Nintendo seems to be pretty liberal in their treatment of "fan art", including some actual derivative games. Has someone from Nintendo complained about this?
No. It's clear that the "Mario" character is a registered trademark. My concern is less about the fan art, but more about whether we should be hosting it. We can certainly wait for a C&D letter. One may never come. It's just a concern of mine.
Yeah, I share that concern. I'm just also a little concerned about setting a precedent here of being proactive on jumping on these things (and thereby creating an expectation, possibly a legal one, that we will police them ourselves), and about being more restrictive in suppressing these things than a company might itself be (many are starting to have a position of "benign neglect" WRT this sort of thing as long as it's clear that it's not from Nintendo and it doesn't threaten their business). I think I'd prefer to wait and see how it plays out over the next little while -- Nintendo is certainly aware of it by now, given the publicity on boingboing and elsewhere -- if that's OK.
The boingboing link is here: http://www.boingboing.net/2007/02/01/super_mario_firefox_.html As you know, with copyrights, companies MUST defend them or they lose them to the public domain. So it's not a matter of Nintendo's benign neglect, it's a MUST do for them.
That's true for trademarks, yeah; I'm not sure to what extent the trademarks are at issue versus the copyrights, but I suspect that both are in play in this particular case.
I've talked this over with our outside counsel, Adam Barea, and he has advised that we take this theme off our site. Copyright infringement is a strict liability. The copyright owner does not have to prove damages - just infringement. Please take this theme off our site. Catherine Brady
Catherine, can you clarify our stance on the other two extensions noted in this bug: the "Mega Man 2" extension as well as the "Futurama" extension?
The following applies to all three extensions (Super Mario Brothers, Mega Man 2, Futurama), and other similar ones: 1. Unless the developer has a license for the copyrighted name/image,then they are infringing and as such we'd be liable. 2. I advise that (i) we no longer have these themes available on our site, until (ii) M. Shaver has checked with the developer if he/she has a license for these images. 3. If they have a license, we should obtain a copy to make sure there aren't any restrictions in the license precluding third-party distribution. 4. Assuming they don't have a license or that there are restriction in the license, we no longer offer these themes and ensure any reference to them are deleted from our site(s). 5. If they have a valid license, and there are no restrictions, then we may continue featuring the licensed theme. Catherine
I disagree with the removal of those themes because of the fact that they are parodies of copyrighted material. By law, you may use copyrighted material as long as: 1) You don't intend to profit (money) off the copyrighted material. 2) You don't intend to use the copyrighted material to slander the copyright holder. 3) You don't intend to use the copyrighted material inappropriately (like having Mario drink beer--that would be copyright infringement right there). So unless you can prove otherwise, they should stay.
We checked with legal and unfortunately it does not appear that your use of the Super Mario properties in this manner actually qualifies as fair use. Although we encourage creative freedom within the Mozilla community, we also do our best to respect the intellectual property rights of others, just as we expect others to respect Mozilla's intellectual property rights. For that reason, we have to stand by our decision to remove this particular extension from http://addons.mozilla.org.
Mike- can I ask you to act on this decision by Mozilla counsel? Do separate bugs need to be filed for the other two infringing themes?
I'm pretty uncomfortable with pre-emptive removal without _us_ knowing that there is actually unlicensed use here and in the absence of a complaint from the rights-holder (we don't know what the terms are for use of those images, AFAIK), and I'd like to know more about how the strict liability doctrine applies to AMO and Mozilla (versus how it applies to the author of the add-on, which I understand better), but given the instruction from counsel I don't have a lot of choice. :( It would disappear from the public site anyway when Remora launches, which is why I didn't bother disabling it before, but I've now disabled the 3 themes listed here.
Status: NEW → RESOLVED
Closed: 19 years ago
Resolution: --- → FIXED
omfg it's just a firefox theme about a 20+ yo video game...
And way to stomp out the 1st amendment by booting stuff that you fear may get you sent to court. Look, like I said earlier: You can still use copyrighted material as long as you don't intend to profit from it. And at worst if a copyright holder has issues with something, they'll send a cease and desist notice first. It's only when you don't comply with it is when there's trouble. Reconsider the action, guys.
That the work is non-commercial is _not_ enough to waive the author's right to control the creation of derivative works, and it is the opinion of our counsel (as stated above, and which which part I very much agree) that the SM theme does not constitute a protected use such as parody or fair comment. IMO, the 1st amendment would be unlikely to apply here, as I strongly doubt that themes, however well-intentioned, would be considered to be protected speech or expression. I am continuing to discuss this with counsel, as I said in the previous comment, and further advocacy comments here will not make the process any easier or more likely to succeed. If you have case law to reference, please feel free to do so, but otherwise please trust that your position has been made clear, and need not be repeated in this bug. Thank you.
There are another cases under the Sports category: https://addons.mozilla.org/en-US/firefox/browse/type:2/cat:26
Summary: Copyright infringement on new "Super Mario Bros 3" extension → Copyright infringement on the "Super Mario Bros 3" theme
Component: Add-ons → Administration
QA Contact: add-ons → administration
Here's an another Super Mario theme: https://addons.mozilla.org/en-US/firefox/addon/9858
Product: addons.mozilla.org → addons.mozilla.org Graveyard
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