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going after a homebrew commodore 64 mario game is something else, Nintendo. all the folks going through the effort to get a c64 emulator running would have totally put you out of business. arstechnica.com/gaming/2019/04

@wilkie They’re doing this because it’s legally required to defend their trademarks should someone later try to commercially rip them off. Nintendo is therefore acting in the long term interest of being a healthy company. This has nothing to do with them “going after” anybody or being evil. The only thing that’s evil is probably trademark law that requires companies to issue take-downs and sue people.

@thomasfuchs @wilkie Eh, that's a myth.

They're required to take action against a trademark infringer. That doesn't mean takedowns and lawsuits as the first course of action, a cease and desist with an offer to license the trademark for $1 is plenty. (I am not a lawyer, though.)

@bhtooefr @wilkie You can’t license a trademark for something that’s offered for free like that C64 port. A trademark is always for a paid service or product.

@bhtooefr @wilkie in any event, even if they could, other, commercial entities would then say “well, they licensed it to these guys for $1” it would be unfair if they wouldn’t give it to us for $1, and sue

@thomasfuchs @wilkie how does anyone know enough about Mario to port it to a new platform but not know enough about Nintendo to know they have to publish it anonymously or risk legal action?

@technomancy @wilkie @thomasfuchs Two things: 1. They sent a DMCA takedown notice, which is about copyright, not trademar. In fact, using it for trademark infringement can get you in trouble because you have to make the representation that the work infringes copyright (which this probably does).

2. Nintendo has to aggressively pursue trademark infringement because their brand is pretty much 100% of their value as a company.

@freakazoid @wilkie @technomancy DMCA is way easier to do (when it’s this obvious) than a trademark claim and achieves the same result: it’s taken down, you defended your trademark (albeit indirectly)

@freakazoid @wilkie @technomancy as a company owner and owner of several registered trademarks myself, let me add that it would be great if you could easily make exceptions (e.g. for fan-made stuff) that will not challenge your trademark legally. Trademark and copyright law is a joke.

@thomasfuchs @technomancy @wilkie Can you get away with publishing a set of criteria where you will license the trademark freely/cheaply rather than doing it on a case-by-case basis?

@freakazoid @wilkie @technomancy @thomasfuchs Speaking of which, it's always been curious to me that we have public licenses with so many angles, but we don't have anything (that I can find) that would fill the role of an "open trademark" along the lines you're suggesting.

@technomancy @thomasfuchs @wilkie I had the same question the last seven times this exact thing happened

@thomasfuchs using the DMCA to enforce a trademark to attempt to not let anybody make a name dilution argument should not be allowed. you should have to make a trademark infringement claim. oh well. (that said, is Valve going to lose it's trademark on Portal for the same reason? or because their copyright claim would be more frivolous?) it's just too messy and too confusing and these laws just don't seem to do what they originally intended.

@thomasfuchs (anyway, I've heard what you've said here a dozen times already)

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