Kongregate refuses to badge ‘game of the century’; developer asks fans to protest

Newgrounds’ “Game of the Century” Abobo’s Big Adventure didn’t quite top the charts at Kongregate, but its 3.92 rating puts it close. Now the developer is asking fans of his game to message Kongregate anyway they can to request badges for him game, after site administrators cited legal concerns for not promoting it further.

The game was featured on the frontpage of the site, and had a weekly challenge in addition, but Kongregate staff feel that badging it could attract the attention of Nintendo’s trademark-happy lawyers.

Developer Pestoforce is hoping player pressure will change Kongregate’s stance:

Kong is afraid of Nintendo getting mad and forcing the game off the site if they add badges (which is what happened with SM Crossover). I say they should risk it. Gamers unite! Raise a stink in forums, write emails to Kong staffers, write a letter to congress! Get badges on this game!

The idea of a big company issuing takedowns against Flash games isn’t unprecedented. Last year Activision forced the removal of the top view shooter Lead for Dead: Call of the Dead, after it was frontpaged on Kongregate, although the game remains playable on most other sites.

On the other hand, Kongregate itself still plays host to games like Super Mario Bros Flash, Pokemon Adventure, and the badged Enough Plumbers, seemingly without any trouble from Nintendo’s legal team.

Additionally, parodies (which Abobo’s big Adventure arguably is) are generally exempted from copyright law on the grounds that to parody something you need to be able to accurately represent it in the first place.

It’s clearly a difficult decision for Kongregate to make, but raises some interesting questions about the responsibility of portals to developers and to copyright laws.  By manually frontpaging the game, and noting the potential for copyright violation, they are acknowledging the content is on their servers, which means they no longer qualify for “safe harbor” under the DMCA. This means that Kongregate would be liable in the event of a lawsuit brought by Nintendo anyway.

The obvious solution would be for major publishers to relax their grip over fan made games. While piracy or direct cloning of games is something that still needs attention, characters like Mario are so well known that even the worst made clone on a game portal isn’t going to damage sales for Nintendo.

Clearly there’s more to this debate than badges for one game on one portal. What do you think? Share your opinion in the comments below.

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