How did the music of Yoshi Island end up in an official US web game?

<img src = "https://cdn.arstechnica.net/wp-content/uploads/2019/02/recycle.jpg" alt = "A shot from the EPA Recycle City Challenge. Not shown: Yoshi's Island DS the music that played in the bottom of the game. "/>

A flash game available on the website of the Environmental Protection Agency since at least early 2017 has made a surprising use of copyrighted music from the 2006 Nintendo Game Yoshi's Island DS.

Recycle City Challenge is an extremely simple educational flash game that asks players to answer basic questions about waste reduction and energy consumption. But yesterday, the Nintendo Soup fan site was one of the first to publicly notice that the Web game was using a looped version of Yoshi's Island DS& # 39; Theme "Underground" in the background.

The music, who played in a version of Recycle City Challenge accessed by Ars as recently as this morning, has since been removed from the live version on the EPA website. You can still hear it in this Internet Archive copy of the site, and compare it directly to the same song on the Yoshi's Island DS soundtrack. Perhaps not by chance, a file named "yoshisdunderground.mp3" containing a copy of the song in question was in a subfolder of music on the EPA website (as cataloged in this web link Archive) until today.

"The Recycle City Challenge The game was created for the EPA by a contractor, "said an EPA spokesman in Ars. We are looking into whether the contractor has received permission to use the music, as this permission was required in this case. "

Can they do that?

Suffice it to say, it seems extremely unlikely that Nintendo has given permission or sold a license for a minor track from an older version of Nintendo DS, for use in a relatively unknown Web game from the government American (Nintendo has not yet responded to a request from Ars Technica). But there is at least one question about "the extent of permission was needed in this case," as the spokesman for the EPA said.

While the Recycle City Challenge theme is surprisingly similar to the Yoshi's Island DS song in question, it does not seem to be a direct extraction of the actual record of the original game. It sounds more like a cover of the song in the MIDI style, a genre that should be familiar to anyone who has been to some parts of the Internet since the late '90s.

The use of a cover version does not put the EPA in clear here, of course. Even the type of compulsory license usually used to publish commercial versions of other songs would probably not cover a derivative work such as a soundtrack, according to Cornell law professor James Grimmelmann. For this to be valid, you will probably need direct authorization from the original copyright holder for the composition, he told Ars.

The other argument the EPA could make here is fair dealing. "It's technically an educational and non-commercial use," admitted Grimmelmann when he reviewed the guidelines to determine what determines fair dealing standards. "However, I do not think it's really a transformation." Putting the same music on a different game does not give new ideas to [the music]"The fair use argument would be much stronger," said Grimmelmann, "if the game used" [the music] educate people on [the music] himself. Otherwise, it is only a small factor on the scale. "

What are your damages?

The United States Government and its affiliates may be held liable for serious copyright infringement judgments in such cases. In 2015, the US Postal Service was ordered to pay US $ 540,000 for the unauthorized use of a photo of the Korean War memorial on a stamp. Last year, the post office also had to pay $ 3.5 million to the sculptor of a replica of the Statue of Liberty in Las Vegas, which had been wrongly used to replace the 39; real object as a subject of a stamp.

That said, Grimmelmann said he did not "see this procedure as a major litigation disaster" for the government. "I think Nintendo would be happy if they removed the game, replaced it and apologized."

And while better diligence and procedures could prevent the government from taking part in such an apparent infringement in the future, Grimmelmann does not think it's necessarily worthwhile to implement draconian controls author's right to every task of the government. "That's the kind of thing [where] it does not make sense for society to spend all its resources to make sure this never happens, "he said. Errors like this happen from time to time, and we do not want to say that they are completely OK, [or] you can do them forever, but I think the real damage is pretty small. "