Nicalis, a publisher that centers on small indie titles such as Ikaruga and Knight Terrors, is finding itself at the center of a controversy which indirectly ties in to one of its titles.

In 2004, indie developer Daisuke “Pixel” Amaya released a Metroidvania-style game called Cave Story. The game was released as freeware (not specifically open source, per se). This version of the game was later decompiled and used to create a number of fan made projects, including Cave Story Engine 2, which gave would-be indie devs a means to build their own projects. These projects often ended up GitHub.

Developer Amaya later made a deal with Nicalis to develop ports of Cave Story for the Wii and Nintendo DS. Nicalis then developed updated versions of the game, Cave Story+ and Cave Story 3D, which were released on the Switch and on Steam.

The Cave Story Engine 2 repository page on GitHub now shows only a DMCA takedown from Nicalis. The reason for the takedown is given as the source code for Cave Story being infringed (though the link provided points to Nicalis’ Cave Story+), and lists 35 other projects that also fall under the infringement. The takedown also states that the game was never open sourced.

A number of indie developers, including former Vlambeer head Rami Ismail, have decried the move. “Cave Story is one of the most important games ever made and I will 100% recommend you do not buy it,” Ismail wrote on Twitter.  “Download the freeware original, then buy Kero Blaster to support the actual developer of the game, instead of these ugly shenanigans.”

We’ve reached out to Nicalis for comment and will update the story as it develops.

Food For Thought

“Freeware” is something of a nebulous term, legally speaking. Ideally, it’s somebody giving away the game, which lets the developer get their name out and gives gamers something cool to play. Legally speaking, though, the developer still owns the rights to the source code, characters, storyline, etc. The fact they’re not charging for it doesn’t invalidate those copyrights. There have been “copyleft” licenses like Creative Commons licenses developed in more recent years, but in 2004, they didn’t exist. The closest thing might have been an MIT or FreeBSD style open source license. So, the big questions are what steps Amaya may have taken regarding those sorts of licenses (which Nicalis claims were not at all taken), and why Nicalis is suddenly pushing this issue now.

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