Update November 27th 9:00 am: Ema, a developer who worked on a fork of Cave Story Engine 2 has spoken to Nintendo Life.
According to Ema, the DMCA notice is only for Cave Story Engine 2. Furthermore, Ema says Nicalis "owns the Cave Story IP", so the DMCA takedown notice is legitimate, and "the burden of proof rests" on CSE2 to prove it is a fair use exception. The CSE2 designers don't "suspect any ill will" on Nicalis' part, and are approaching the publisher to discuss the matter. It's worth noting here that the Cave Story community wiki claims Nicalis merely licensed the game and doesn't own it, so there seems to be some confusion regarding whether Nicalis does own the IP. There have been no claims on the freeware versions of Cave Story, that are known about at this time. The original story follows below.
Original story: Indie publisher Nicalis has begun issuing DMCA takedown notices against free games and projects relating to Cave Story. The move has sparked widespread condemnation from prominent industry figures and Cave Story fans working on their own projects.
Why is Nicalis issuing these Cave Story takedown notices?
According to takedown notices received by a number of fan developers, fan works based on Cave Story infringe on the game's source code. Many developers have disputed this, claiming that their work is actually based on Daisuke Amaya's original 2004 freeware version of the game and not the updated Nicalis Cave Story+ version. This is certainly the case with fan project Cave Story Engine 2, which has been hit with a DMCA notice requesting the takedown of all assets relating to the project. Allegedly, other projects including fan-made versions with built-in mod support have also been hit despite not using Nicalis' source code.
So @nicalis has decided to start DMCA'ing the freeware versions of Cave Story and fan made rebuilds of the freeware version that supported mods while also largely not even using the original source code.— Buttons Montgomery (@HBJohnXuandou) November 24, 2020
Fuck Nicalis. Do not support Nicalis. Do not buy Nicalis games. pic.twitter.com/RP3LPN5pXp
A number of industry figures and developers have hit back against Nicalis, claiming that the studio doesn't have the rights to the 2004 freeware version of Cave Story. Vlambeer co-founder Rami Ismail says he "100% recommends you do not buy" the Nicalis version of Cave Story. He goes on to call the studio's DMCA notices "ugly shenanigans", urging fans instead to play the freeware version and buy Amaya's Kero Blaster.
Is this part of a pattern for Nicalis?
This wouldn't be the first time developers and industry heads have rallied against Nicalis. Back in 2019, indie developers accused Nicalis of "ghosting" them, withholding patches from them, and other issues. Ittle Dew 2 developer Ludosity alleged earlier this year that Nicalis had attempted to re-publish the game after their publishing contract was voided. In addition, Nicalis founder Tyrone Rodriguez has in the past been accused of racism and other abusive behavior. This Cave Story controversy is the latest in a string of grievances brought against the publisher by third parties.
We've reached out for Nicalis for comment on this story and will bring you more as soon as we get it.
How do you feel about Nicalis issuing Cave Story DMCA notices? Let us know in the comments below!