One of the important things to note however from the DMCA itself is why they went after Game Jolt so directly, I mean sure Nintendo have always been tight on their IP, but this was a large scale take-down.
From the DMCA notice:
So Game Jolt was earning a, potentially decent profit, not intentionally off of Nintendo IP but since the revenue is enable site-wide it definitely was a factor. It’s also worth noting that Game Jolt offers up to (I think) 30% (number may be off) of AD revenue on a game to the developer should they choose to have it. It’s likely that many of these developers were accepting it as well, which would mean they’re not exactly innocent.
The other big thing of note is Nintendo is about to have their new console out, and since first party IP is really all they have to their name right now they’re probably performing a brand cleansing to (hopefully) focus attention on their upcoming releases.
@Sylvain_l Copyright hasn’t really changed too much in this case from it’s earliest days to be honest. The biggest thing would have been Disney lobbying to extend the expiration of copyrights in order to keep Mickey Mouse from entering the public domain after Walt Disney’s death. That’s been one of the biggest strangleholds on the creative industry. It’s also important to understand that even prior to that a creator of a work had exclusive rights to it for about 50 years, essentially long enough to maintain control of it for their own lifetime, before it would hit public domain.
Fan work is not remotely protected by any copyright law and never has been, not when using the actual branding and content of the IP in question. But the mechanics of game-play don’t actually have anything copyright-able to them, a perfect example of this is the 1981 case of Atari VS Amusement World over their game Meteor, which was even by the courts admission an Asteroids “clone”. But it was determined there were not enough visual similarities nor any code plagiarizing to actually qualify the game as copyright infringement. But that’s the thing, for all intents and purposes these were the SAME game, but since they didn’t infringe on the assets or actual IP, the case was thrown out.
Also take the recent No Mario’s Sky (the Mario meets No Man’s Sky parody). It too got hit with a DMCA from Nintendo during this wave. But the creators basically knew it would happen, and prepared new assets ahead of time to replace anything with a visual likeness to Mario or anything Nintendo and then renamed the game “No DMCA Sky”(sp?) and put the game right back up again. In doing so, it’s still the same game they made, and wanted to make, but it doesn’t hold the brand-name and visual content that got them in trouble with lawyers.
These people who want to make fan-games just need to accept that they can make homages to their favorite brands, even that have the exact same mechanics, but they can’t plan to ride on the brand-name or IP itself.