I disagree, Nintendo has never distributed a PC- or browser-based version of this game. Also, it's debatable whether or not profiting from a thirty-year-old game is adding social value. Nintendo seems to fashion themselves after Disney, in the sense that they place extreme value for themselves on copyright protectionism.

They haven't but they might license someone else to do it.

Creating derivative works is the most productive avenue for creativity. By requiring a license for it, it is virtually banned. Society loses out on a huge body of derivative works.

Note, virtually all works are derivative works, except that now, we're only allowed to derive from stuff created at an arbitrary point when copyrights became perpetual.

If this mario game was allowed to benefit the many users it did -- would Nintendo lose their incentive to create new games? Would it make Mario not profitable to develop retroactively?

I think the answer to these questions is clear. As is the fact that society is deprived of a huge amount of value here.

> it's debatable whether or not profiting from a thirty-year-old game is adding social value

the law says it is not,case closed.

The law is not the end-all-be-all for moral debate, and he raises a reasonable point.

Even if that were true -- does it mean that Nintendo will avoid creating the next game because of less profits?

I think the answer is obviously not. Therefore, depriving society of this value in order to incentivize Nintendo with higher profits is a bad deal.