News Article

Talking Point: Copyright and Video Games

Posted by Sean Aaron

What is stopping us from experiencing the entire history of video games?

Last year Taito issued Space Invaders Get Even on the WiiWare download service as well as multiple versions of the original game on the Japanese, PAL and North American Virtual Consoles. This was in celebration of the 30th annivesary of the release of Space Invaders in arcades worldwide. Similarly Namco is due to celebrate the 30th anniversary of Pac-Man next year with a new game release (which will hopefully also include arcade incarnations). In addition to making gamers like me feel old because we played these games when they were first released in the arcades 30 years ago, these anniversaries also give us pause. After all these are only two games out of hundreds from the 1980s which are currently not available to play on any console. What are the reasons for this and are there any remedies?

That older properties cannot be profitable is plainly not true. Nintendo has just announced arcade emulation via the VC in the form of the Virtual Console Arcade, and the appearance of properties from Namco and Tecmo imply that at least some publishers recognise this. Since the Japanese 8-bit and 16-bit consoles featured ports of arcade games as a primary software offering many classic games are available in their console incarnations in downloadable form from companies such as Konami, Taito and Nintendo themselves; it's also possible these games may see additional releases via the Virtual Console Arcade. This online method of distribution is considerably more profitable on a per unit basis than putting out a compilation disc would be (as Namco and SNK Playmore/Ignition have done) -- not to mention there's no disc mastering, pressing or packaging involved. Companies like Konami, Midway and Taito may simply not be interested in issuing a compilation of arcade games on disc and prefer a download model for distributing classic content.

The large video game companies of today have made many acquisitions along the way; usually to acquire one or two properites or even just a brand name. Activision and EA between them own a significant percentage of the 8-bit computer games from the 1980s due to their own titles and acquisitions of other companies, so you'd think we would see some content from them on the Virtual Console given the Commodore 64 is available on the service in both PAL territories and North America, but that isn't the case.

Part of the reason could be there's no one available to do the work of choosing titles for the service given their other publishing concerns, but a lot of it is likely down to rights issues. In many cases a game is developed by a different company from the publisher and depending on the contractural arrangements the publisher may have no rights other than the one-time publication of a title on a single platform. Unless the contracts surrounding the original publication of the title spell out these rights in detail any company which attempts to publish a title risks courting a lawsuit; given the age of many of these games just trying to contact anyone who might have rights to a game can be difficult. Even in the case of companies that had a significant presence in the arcade gaming scene it's not always clear who owns the intellectual property rights, so imagine trying to determine the rights disposition of a game made by a guy in his garage!

Let's also not forget that many games use licenses from other properties like books and films, so getting a game like Ducktales for the NES on the Virtual Console would require Capcom to renegotiate rights with Disney, which is pursuing the launching of their own internal software development studio. Of course since Capcom owns the code for the game, Disney wouldn't be able to publish the game without a licensing deal with Capcom. Anyone want to guess what the odds are on these giants getting together to make a 20+ year old NES game available for less than £4 a download? That's not to say that it could never happen. Certainly Disney might someday come to own Capcom, or Capcom could come to own Disney Interactive and associated rights that come with that, but as it stands there's little likelihood of this and other games based upon licenses held by other large parties ever seeing the light of day on the VC.

So what about games where it's not clear who has the rights and no rights holders can be contacted? Well speaking of the UK, current copyright law basically states that the owner of copyright owns publication rights, full stop and these rights are automatic and extend for the life of the creator plus 50 years. There's no explicit reference to "orphan works" -- that is works which are not currently being published -- so it's possible that publication could be made without penalty, but given that all games created 30 years ago would legally be eligible for copyright protection it would be a gamble no one would be willing to take given that all someone would need to do is file suit in court showing they owned the rights to that property.

So what can be done to remedy this situation? This time last year legislation was introduced in the USA (Orphaned Works Act 2008) to reduce penalties for rights infringement in cases where the infringer claimed to have made a legitimate attempt to determine the rights holder and was unable to or had no response to contact attempts. This never even went to a Congressional committee, probably because there was such a negative response from artists who perceived that their works could be used without permission immediately after publication (largely due to the fact that it's common practice to use photos and artworks in publication without giving credit to the artist) and the burden of registration would be placed upon the creator to register their copyright in databases owned by private (likely for-profit) entities.

Whilst this is a legitimate concern the motivation of such legislation is not simply about supporting the concerns of big business (though a reduction in penalties would benefit them disproportionately): scores of films have been lost from the first half of the 20th century due to neglect by film companies that didn't care for them. Now many films from the 1960s and 1970s are also at risk, however copyright issues cause difficulties, so organisations like the National Film Preservation Foundation in California are hoping for some kind of remedy soon before more films are lost forever. Video games can face a similar fate: much old code is contained on various magnetic media or ROM cards and subject to deterioration or loss. In recognition of this museums for video and computer games have come into existence with recent mention of one opening in New York state and another one being started in London. Whether or not you regard games as "art" they are definitely a part of modern culture and should be preserved for the future.

It might be time then to change the copyright laws to protect the public interest and to prevent properties from lying fallow due to rights holder reluctance or inability to publish -- after all published media is intended for viewing and use by the public; this is truer of no media more than video games. Some minimum time limit after which rights to an individual property lapse would ensure that properties not considered important enough by the current rights holder to keep available can be published freely by others. This would enable legal compilations of classic games where the present rights-holder cannot easily be determined and the preservation of the past for enjoyment by future generations. I personally don't regard publishing rights as sufficient cause not to be able to play a game in my or my child's lifetime.

The question is whether or not lawmakers are willing to tackle this issue head-on. Looking at recent legislation in the United States driven by large copyright holders like Disney, the trend has been to automatically extend copyright by longer and longer terms without any provision for orphaned works and little concern for libraries or the public interest. In the UK the recent Gowers Report for the review of copyright law has expressed sympathy for the idea of relaxing existing rules to enable copying of film and audio for private research and archive purposes as well as the notion of enabling the use of "orphan works;" it's not clear if video games fall under these recommendations, but it should. It's basically up to Parliament to make a decision to enact the recommendations and it might be worthwhile for gamers to contact their MPs to make their views known on the subject.

The debate needs to be framed to include all media and address concerns by creators who want to ensure their rights to control the distribution of their works are protected, but also assess what the public interest is in having access to works that have ceased publication. The biggest problem is that when orphaned works are discussed the only people regarded as having a legitimate right to infringement are researchers and archivists. Who is going to campaign for orphaned works legislation for the purpose of monetising idle IP?

My main interest as a gamer is in being able to play games that span the generations without having to take a trip to a museum, but this highlights how video games are a different form of copyrighted work than say a film or a piece of music. Those are media that can essentially be archived to a digital format once and then easily format-shifted. For games, either the code needs to be ported or a "virtual machine" created to run the code on different hardware, and due to the activities of video gaming enthsiasts and possibly big companies (anyone know if Nintendo's VC uses bespoke emulation software?) this is already the case. Ultimately due to competing interests in the larger world of media ownership and copyright law it may not be politically feasible to make some of these games available again.

Still all is not lost. Emulators exist in a quasi-legal world where their actual function of performing software emulation of various hardware platforms is okay, but using them to run code that ran on the hardware being emulated without permission is not. Looking at discussion surrounding the digital distribution of music and video files a future remedy could be some kind of pool or tax which pays rights holders to compensate for unauthorised distribution of intellectual property over the internet. It's possible that video games could be included in this. If that's the case then it could finally grant legal status to emulation and ROM distribution online. It wouldn't be the solution I would prefer to see, which is existing rights owners exercising their rights and publishing their old games on all current platforms, but it would at least make it easier for people to experience these old classics in some form as opposed to having them disappear completely.

Further reading

The History of Activision (Gamasutra)

National Film Preservation Foundation comments on the subject of Orphan Works (PDF)

Gower's summary (PDF)

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User Comments (50)

Objection

#1

Objection said:

You know what I hate? Companies who own copyrights to big awesome-looking Wii games with ghosts and earthquakes and only release them in regions that don't include N.A.

antdickensAdmin

#2

antdickens said:

Great article Sean, it's certainly a huge topic when you get into the details. When you asked "anyone know if Nintendo's VC uses bespoke emulation software?" - yes, they are using their own software for this, however it's unknown how much influence open source emu's had on their software but if they did contain elements of the open source emu's they would have to declare that in the licence for Wii. My money is that they developed them completely in house with help from old debug kits.

Another "case study" for people to remember is the age old GoldenEye 007 (N64) debate, it's tied up in lots of copyright/license issues and to be frank is a real shame the companies can't just come to some agreement - to the fans it just shows that all companies involved are just too greedy. It's a real shame for gamers.

DamoAdmin

#3

Damo said:

This is a fantastic feature and something that hasn't been tackled in such a way before.

For retro gamers the whole issue of copyright is of vital importance. Often, emulation is the only realistic way of playing some real gems from the past as in their original form they simply cost way too much. It's not an ideal situation but until these companies start working together then these games are doomed to remain in limbo, with gamers having no option but to emulate illegally in order to experience them.

XD375

#4

XD375 said:

Pac-Man is playable on Wii through the Pac-Man World series. :D

EDIT: Yes, THE arcade Pac-Man. (The Namco Museum series too now that I think about it...)

Chunky_Droid

#5

Chunky_Droid said:

Very well written.

Funnily enough they had an article on Gaming Museums on an Australian show I watch called "Good Game" and how to best take care of your old games.

I'm upset that companies can't come to terms to re-release classics like DuckTales and Goldeneye, I wouldn't think it would be THAT complicated.

And in the case of Goldeneye, Activision owns the Bond rights now, and Nintendo published the game, so Rare/Microsoft haven't got a leg to stand on with that game.

Bass_X0

#7

Bass_X0 said:

get it together before I do something drastic and you lose money.

They're not going to lose money just because you've download a ROM of the internet of a game that is not available on the VC or any other collection anywhere. They've made all the money they ever will from the original cartridge release and they won't see a penny if you buy the original cartridge second hand. But I do agree that if you download Super Mario Bros for example, Nintendo lose out on a sale of the Virtual Console game. Of course some people here may have different opinions to this.

Sean_Aaron

#8

Sean_Aaron said:

@chunky_droid: they don't have a leg to stand on in terms of publishing a James Bond game, but Rare still owns their code.

It's definitely an issue I'm going to raise with my MP, but I don't expect it to go far and I'd expect to see new legislation in the USA as well. Before the Orphan Works Act there was an attempt to piggy back on other legislation which got struck down, so the bill's sponsor figured it would have a better chance on its own.

The whole thing is severely unbalanced. Mickey Mouse isn't more special than Popeye, so why should it get better treatment? Just because the company that currently owns it has more money and influence apparently...

Charco

#9

Charco said:

What an insightful and well written article. One of the problems with video games is that they are not classified in the same realm as other media. They are not widely respected or treated as legitimate works but more as toys. I am all for petitioning your local representative, but I am afraid this is akin to discussing quantum physics with your 6 year old niece.

Adam

#10

Adam said:

Copy right laws are absurd. I really don't think any head way will be made in changing the laws any time soon. Artists' attitudes need to change first. There is a sizable movement in favor of open source and similarly lenient approaches to authorship rights. If such movements continue to grow, the ridiculously tangled laws governing copy rights won't matter, and government interference can just be bypassed. Of course, this is still a dream, but it's not beyond belief.

The idea of owning intellectual property was bizarre in the first place. How can someone own an idea? Japan is sometimes a joke because of their very loose enforcement of copyright laws, but I wish we were more like them. Then we would see games like the Mother / Earthbound series on our shores without a problem.

I hope something is done about copyrights soon, but I'm pessimistic. Whatever insane people decided that a person should own the rights to an idea 50 years after he's died? And how do you reason with that? I don't see the laws changing any time soon, copy right laws have only gotten stricter and stricter, never more lenient.

timp29

#12

timp29 said:

Wow, thanks for the enlightening read. The ducktales example really put it into perspective. Its not really worth the time of those two companies to put head together to hammer out a profit sharing deal over a $4 a download game. Of course, if they weren't greedy they could just split it 50-50 provided no extra work was needed to get the game up and running.

Djungelurban

#13

Djungelurban said:

Excellent article there. Personally I think a large portion of the problem when it comes to rereleases on the VC for example is a lot of the time rating fees. I'm sure that many companies would love to release their entire back catalog there but since the rating fees is so high they just don't expect to turn a profit on a lot of them so they just don't bother... Wouldn't surprise me too if Nintendo is doing its best to choke the distribution channel, they do suffer from serious arrogance issues.

The concept of copyright IIRC was originally introduced as a way to hinder intellectual theft and promote creativity. Basically instead of having people going around the lands trying to sell the same goods as their own it forced people to come up with new things. Sound in theory sure. But there are problems, cause as time went by inventions started to build on other inventions that in turn built on other inventions and thus we have the current rights chaos. Copyright doesn't even really promote creativity these days, it stifles it. I mean, who knows how many inventions and other creative/intellectual works that hasn't happened due to the inventor either not being able to acquire or could afford the rights for some part of their construct. And also, how often isn't it that some one or some company does not develop new products/material because they still make money alot of money from their old rights.

So this is what I would suggest. The current length of for how long a copyright is in effect for a specific entity is reduced to only 5-10 years after publication (or possibly after it start making money). This cannot be extended. Afterwards your creation, and all info concerning it, will be public domain. However, in addition to this there would be a "conceptual copyright" (don't know how to else explain it) that should be valid for 30 something years. And with that I mean that for example in another 10 years Flower is released from copyright and may be distributed freely, however a third party wouldn't be able to develop another Flower and sell it as their own for another 20 years on top of that. I think this would would give people enough opportunity to make money of the things they do while at the same time promoting them to come up with new things while at the same time give others the opportunity to use some of the good ideas to develop their own works and also making it quite easy to archive the works for the future.

Also, this would mean that in 2012, Nintendo for example would lose the rights for Mario and while I love the Mario games, I'd love even more to see what would come out of them when trying to replace him.

timp29

#14

timp29 said:

@Adam: Owning the rights after death is of great benefit to surviving dependents of the copyright owner. If, for example, J K Rowling died tomorrow (bad example cause she has enough money for several lifetimes) her kid would continue to gain harry potter profit share for 50 years or whatever. Sometimes inventions aren't fully useful until technology 'catches up' in which case the copyright owner may well be dead before any money is to be made.

Anyway, one point is clear, it means we don't get to enjoy some of our favourite games for a good 50-100 years. Start living healthy if you want to play goldeneye again people :p

Pj1

#15

Pj1 said:

Hay, if you down load Nintendo games from the VC Nintendo don't make any money? There wouldn't be a VC service if Nintendo and friends don't make money. Going back to Goldeneye it would be a possible release if the owners of the new bond franchise were to be paid loyalties, OK, Rare is owned by MS so they would probably be royalties owed to them. Why can't they just work together to give back "some thing" to gamers? dare I say it I've heard Golden Eye is coming to the X box arcade channel?

So how does it work then guys, if Sega put say Sonic and Knuckles on the VC do Sega earn royalties from people downloading it?

Emulators I think are very clever........

Chunky_Droid

#16

Chunky_Droid said:

I also think as far as Nintendo and Rare go, none of us really know how much of Rare's code Nintendo actually bought, I would presume they bought the code for the 3 DKC's and DKL's. Plus probably Donkey Kong 64 as well as Star Fox Adventures. Donkey Kong 64 ran on a slightly improved Banjo Kazooie engine, so does Nintendo own the code to those games too? Just not the characters?

It's a very deep situation that I admittedly am just making assumptions of without any real concrete facts.

I personally think Disney would do well to just buy the NES games from Capcom and release it under their own interactive umbrella under "Disney Gaming Classics" or something similar.

thewiirocks

#17

thewiirocks said:

Excellent article, Sean! I've found that many gamers intuitively understand the problem of, "it's 20+ years old, why shouldn't I be able to download it?" but struggle with the actual legal framework surrounding that question.Your article provides readers with the tools they need to attack the issue head-on. Kudos!

Chunky_Droid

#18

Chunky_Droid said:

Unless someone interviews the VC guy at Nintendo (or even someone at Hudson or Sega who deal with their end of the VC), nobody's gonna know how it works. I would imagine Nintendo publish every game that comes out, so get a publisher's cut (to make profit and cover bandwidth cost) and whoever made the original game to begin with get whatever's left.

GabboStaff

#19

Gabbo said:

@Adam
How do you reason with proponent's of Copyright law? Why, by using reason, of course (instead of declaring them 'insane' ;) ). But you'll have a hard time of it because they have all of the best arguments already:

1) Copyright protection extends government protection over authors to protect their investment from piracy

2) Extended copyright protection increases the available time spent on the market and directly increases the total amount of sales an author can expect from their work over its lifetime

3) Copyright law encourages (and technically requires) authors to deposit one or more copies of their work with the Library of Congress (in the U.S.) expressly for the purpose of preserving it and making it available to everyone upon copyright expiration.

4) Contrary to your statement that Copyright grants ownership of an 'idea', the exact opposite is true. Copyright law grants ownership of only the expression of an idea. This encourages the publication of the idea because the author knows that his/her expression will be protected. The idea, however, is not and anyone is free to use it in their own games. In this way, Copyright law actually encourages the sharing, rather than hoarding, of ideas.

Sean's argument essentially boils down to this: he wants a shorter copyright term for video games. There are many arguments in favor of shortening the term of copyright in general which I won't get into here, but suffice it to say that Sean makes a good argument.

However I highly doubt that he or any of us really wants to see an end to copyright protection of video games. That would lead to disaster for the industry and an end to big budget releases.

Charco

#20

Charco said:

@Pj "Why can't they just work together to give back "some thing" to gamers? dare I say it I've heard Golden Eye is coming to the X box arcade channel?"

Video games companies don't care about you or me or what we want. They only want your money. We would all do well to realise this.

thewiirocks

#22

thewiirocks said:

@Gabbo - A few corrections...

1) Copyright protection creates the issue of piracy. Without copyright protection, it wouldn't be piracy. It would be legal.

2) Extending the period of a copyright has not traditionally lead to greater sales. Most products have a relatively short shelf-life. However, the EU is a bit more liberal in their interpretation of the purpose of copyright and are fine with the ides that a copyright can potentially be used for a lifetime wage, plus a potential inheritance for descendants.

The US Constitution spells the matter out a bit differently. It provides for both Copyrights and Patent, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

At this point there is little argument that "limited times" was never intended to cover a period close to as long as the US has been in existence! (Lifetime + 75 years) Unfortunately, the Supreme Court has copped out on the issue, stating that the Constitution does not define "limited time", therefore they don't feel they have the power to overturn the current copyright law.

3) The Berne Convention revokes the requirement to register copyrights in order to receive copyright protection. Currently, every work is automatically granted a copyright upon creation. Which can create no end of headaches. For example, this post is copyrighted material unless I explicitly disown that right. If NintendoLife wanted to create a book of the "Best Comments Ever", they'd have to contact me and every other poster to obtain permission before using our comments.

The other problem with this change is obvious: Quite a bit of work is lost over the years because the copyright is not registered. There were some PC games that I remember as a kid which simply don't exist anymore. They were too low budget for a wide audience to take note of, and copies were not registered with the copyright office. So just like that, the information is lost to the sands of time.

Sean's argument essentially boils down to this: he wants a shorter copyright term for video games.

I think he wants a shorter copyright overall. It's not just videogames that are negatively affected by long copyrights. Books, films, and photographs have also been lost to time. All because Mickey Mouse was going to become public domain. (Disney lobbied for the copyright extensions to prevent Steamboat Willy from falling into public domain. Thus the act that extended copyrights is often referred to as the "Mickey Mouse Protection Act".)

IMHO, there is a valid concern that Disney has. Not that impressive of a concern, but a concern nonetheless. My own opinion on copyright is that the best way out of this mess is a tiered copyright scheme. i.e. When a work is created, the copyright is automatically assigned for 15-20 years. At the end of that period, the copyright holder can obtain a 5-10 year extension by registering the work. The copyright holder is allowed to maintain the copyright for up to 100 years by filing for a new extension at the end of each 5-10 year reregistration.

This scheme would have far reaching benefits over the current system. First off, orphaned copyrights will have an opportunity to fall into public domain. No more expensive hunts for the copyright holder of a long-dead property. Secondly, it would ensure that the property is being actively maintained by some entity. This would ensure that it would not be lost to the sands of time. Thirdly, it simplifies the problem of finding the copyright holder. Finally, it walks the fine line between the needs of mega-corporations like Disney and the needs of the public in encouraging the Arts.

Jaceguay

#23

Jaceguay said:

Man, anyone know what are the odds of Thuder Force IV or any other thunder force to be released?

Sean_Aaron

#24

Sean_Aaron said:

Thanks folks and really whilst it does seem hopeless it's really worthwhile expressing your viewpoint to your government reps. Some of them do listen (I'm actually on a constituency panel held by my MP due to my willingness to write the odd email when something's bothering me) and there's the old marketing rule that everyone who's bothered to write a letter in complaint represents many more who couldn't be bothered and is worth listening to.

@chunky_droid: good point about Donkey Kong Country; I suspect that Nintendo holding the rights to Donkey Kong would mean that the wording of the contract with Rare about development of that title would probably be a bit different to that regarding a 3rd-party license like Goldeneye. Monster Lab, for example, was developed by Backbone Entertainment and published by Eidos, but the rights to the IP are owned by Backbone (though they've gone bust, so presumably it's shared between staffers -- again depending upon contracts of employment with Backbone!) and not Eidos. I doubt Eidos would have made such an arrangement regarding Tomb Raider....

@Gabbo: You're certainly right that I think copyright law should apply to games, but I think there needs to be a line drawn in the sand generally. As far as I'm concerned copyright can be extended forever, but not so the rights holder can just sit on it, it should be because the work is in active publication.

Ren

#25

Ren said:

The Rare case is a sad one that buries some of the best games for everyone, and it goes way further than Goldeneye. What about RC Pro-AM, Cobra Triangle, Wizards and Warriors, BattleToads, Perfect Dark, and Jet Force Gemini and others? Classics that may be held by MS forever, even though they were games that were made for an old Nintendo. There was a time when I almost bought a game only when I knew it was made by Rare, so that means my favorites seem to be locked out of VC. Sucks.

Sean_Aaron

#26

Sean_Aaron said:

@Ren: without knowing the terms of those contracts it's not necessarily the case, but we'd probably have to ask Nintendo's lawyers!

DamoAdmin

#27

Damo said:

@Jaceguay - It could happen - Sega managed to acquire the rights to make the 6th game for the PS2 recently, so you never know.

Chatham

#28

Chatham said:

@ Sean: Amazing article, very well written... With some great legal points. Thumbs up man.

I took a copyright class last quarter and it made my stomch sink about VC and how different the game-development scene is compared to 20+ years ago.

Anyone remember Zero Tolerance for the Megadrive/Genesis? Technopop, the company that made it, is dead. Somebody get on that "orphan works" act now!

Sean_Aaron

#29

Sean_Aaron said:

Well, I'm emailing my MP right now to put my money where my mouth is and I'll include a link to this very article!

Sean_Aaron

#30

Sean_Aaron said:

@Chatham, cheers. If Technopop was a privately held development outfit then they may have spelled out ownership issues; otherwise it's possible that the law would regard them as equally held by whomever owned the assets at the time the company folded. Really you'd need to have a copyright attorney research it and that isn't going be cheap (hence much delays in publishing old EA/Activision stuff, no doubt).

There have been cases of code being released where the creator came to own it: MAME has fourteen legal ROMs (mostly Exidy titles from the late 70s like Targ and Robot Bowl, but also interestingly a Bally/Midway title Robby Roto) on it that you can freely download and play (though only the MAMEdev site can host them; you'd need to negotiate your own permission separately). Anyone who's a fan of the classic DOS/3DO game Star Control II is probably aware that the code for that game was made public (though the name is still trademarked, so it's been renamed The Ur-Quan Masters) and ported to many current computer platforms including Mac OS X and Windows.

Oh, and here's the letter I wrote to my MP (I also included a link to this article and asked for her opinion):

I'm concerned with the way copyright law generally has been used almost exclusively for the benefit of the rights holders; without consideration for the fact that many works are out of print and could potentially be lost forever due to an inability to redress the rights issues.

Whilst I appreciate the need to protect the rights of creators, I don't think anyone is benefited by the loss of creative works due to inactivity. There has to be a balance which takes the public interest into account, and I'm hoping that it's a subject you have an interest in and will take the time to pursue.

Chatham

#31

Chatham said:

@Sean

You know it! I've had some long discussions with my professor about where this all could go. The copyright laws have gone too far. that's for sure. In the states, it's Life+70years of the creator until made public (if properly registered, etc.). Now that is UNFAIR!

Also going to do some research on Technopop.... Wikipedia isn't much help. Lol. If anyone hasn't seen the brilliance that is Zero Tolerance (or the Beyond Zero Tolerance beta-sequel ROM floating around the tubes) I suggest getting it on a PC emulator. It was the first FPS for the Genesis, and a damned good one (better than Doom IMO).

GabboStaff

#32

Gabbo said:

@thewiirocks

"1) Copyright protection creates the issue of piracy. Without copyright protection, it wouldn't be piracy. It would be legal."

Ha ha ha! Good one!

"2) Extending the period of a copyright has not traditionally lead to greater sales. Most products have a relatively short shelf-life. "

True. However, my point was that shortening the term of copyright reduces the total time that an author has the exclusive right to sell. Once others are allowed to sell or otherwise distribute the same work, the author will lose those sales.

"3) The Berne Convention revokes the requirement to register copyrights in order to receive copyright protection. Currently, every work is automatically granted a copyright upon creation."

However, U.S. copyright law still requires registration before you can enforce any copyright claim in court. As a result, if someone does ever attempt to enforce their copyright, it's getting deposited in the Library of Congress one way or another.

"The other problem with this change is obvious: Quite a bit of work is lost over the years because the copyright is not registered. There were some PC games that I remember as a kid which simply don't exist anymore. They were too low budget for a wide audience to take note of, and copies were not registered with the copyright office."

The thing is, one of the goals of Copyright law and the Library of Congress is exactly that...to preserve those works that the free market allowed to wither away. Copyright law offers a solution to this problem...lure authors into registering their works with promises of huge infringement awards if they file their copyright registration. But require them to deposit copies of their work in the process. So the solution then is more copyright registration, not less. ;)

"Books, films, and photographs have also been lost to time. All because Mickey Mouse was going to become public domain. (Disney lobbied for the copyright extensions to prevent Steamboat Willy from falling into public domain. Thus the act that extended copyrights is often referred to as the "Mickey Mouse Protection Act".)"

Whoa now...did Mickey Mouse really do all that? After all, the law you refer to was passed in 1998. The problem of losing old works to the ravages of time had been going on long before then. And efforts to restore endangered works were already underway.

"My own opinion on copyright is that the best way out of this mess is a tiered copyright scheme..."

Actually, what you describe sounds a lot like the system we had in the U.S. before the Berne Convention. IIRC, the Berne Convention was around 100 years old in Europe before the U.S. signed on. So we obviously didn't all think it was such a great idea. But the benefits of bringing our laws into conformity with the rest of the world won the argument.

Personally, I agree with you. A renewal system such as you describe would neatly deal with the problem of works that are abandoned or orphaned. Let's start a petition!

BulbasaurusRex

#33

BulbasaurusRex said:

I really wish they would find a way to get licensed games on Virtual Console. I want Teenage Mutant Ninja Turtles games (other than the bad one that actually has been released) and Star Wars games!

Does anyone know the copyright status of the NBA Jam games? Do they need to renew their license with the NBA, since those games use real NBA players?

thewiirocks

#34

thewiirocks said:

True. However, my point was that shortening the term of copyright reduces the total time that an author has the exclusive right to sell. Once others are allowed to sell or otherwise distribute the same work, the author will lose those sales.

Very true. My point however, is that there's not that much value to the greater economy by allowing such a long copyright term. Even the authors themselves rarely see long-term sales on their works. Out of tens of thousands of books written, maybe one will be successfully republished 20 years later.

However, U.S. copyright law still requires registration before you can enforce any copyright claim in court. As a result, if someone does ever attempt to enforce their copyright, it's getting deposited in the Library of Congress one way or another.

This is correct, but it ignores the greater issue. The vast majority of works are never protected this well. So they are never deposited in the LoC, Yet if you attempt to revive the work, more often than not a legal troll will do the work to obtain the rights, file the registration papers, then sue you. Is there anyone it would be worth it to, to lose millions of lawsuits over just to ensure that copies exist in the LoC?

The thing is, one of the goals of Copyright law and the Library of Congress is exactly that...to preserve those works that the free market allowed to wither away. Copyright law offers a solution to this problem...lure authors into registering their works with promises of huge infringement awards if they file their copyright registration.

Again, the problem is that copyrights are NOT being registered nearly as much as they should be. With electronic works the problem is getting worse, since the LoC only requires representative snippets of code rather than the entire work. And that's assuming that it was registered in the first place, which usually it isn't.

So the solution then is more copyright registration, not less.

I agree with this statement. Which is why I suggested short automatic protection, with requirements to file thereafter. That way the work can either be preserved by the public, or by the filings to the LoC. :)

Whoa now...did Mickey Mouse really do all that?

Obviously there were a few other interests along with Disney that helped push the 1976 extension and the 1998 extension. The 1998 act gained the moniker of "Mickey Mouse protection act" from the fact that Disney was one of the biggest and most visible lobbyists for the act. An act that honestly had almost no real-world economic benefit. The primary reason why Disney (and I'm sure many other Incs) wanted the extension was so that the image of Mickey Mouse would not be available in the public domain.

Interestingly, other popular characters (e.g. Superman, Popeye, etc.) have fallen into public domain, but have not significantly harmed the core trademarks of those companies. Thus the lobbying was mostly a defensive act for which the American public paid the price.

Actually, what you describe sounds a lot like the system we had in the U.S. before the Berne Convention.

I'm not quite sure what gives you that idea. There were no automatic copyrights in the US prior to the 1976 Copyright Laws. (A fact that Nintendo mercilessly exploited when they were sued by Universal over Donkey Kong.) There was the concept of a single 28 year extension to the 28 year term (originally 14+14 prior to 1909), but the purpose and implementation was a bit different from what I'm suggesting. And it was still incredibly easy to lose copyright protection by forgetting to properly mark an item as copyrighted.

But the benefits of bringing our laws into conformity with the rest of the world won the argument.

That has always irked me. Why was it so important for the world to "harmonize" their Copyright systems? Is it really so terrible that copyrights could expire in one country before another? (Don't answer that. It will lead to a 20 page dissertation on the topic. :P)

Well, for better or for worse, we're now going to have to solve the problem holistically. We need to get Europe and the US back to the table and force them to work out a solution that doesn't cause so much of the world's culture to get lost to time. Trying to solve the issue at the level of an individual country probably won't get very far. But we can at least raise the awareness and encourage them to open a new Copyright Convention. :)

Personally, I agree with you. A renewal system such as you describe would neatly deal with the problem of works that are abandoned or orphaned. Let's start a petition!

Amen brother! :D

Chunky_Droid

#35

Chunky_Droid said:

I wouldn't mind starting my own company that brokers deals with companies to re-release licensed games on new consoles, who's with me!? :P

I wish I had the means....

The_Fox

#36

The_Fox said:

@post 37:
Sadly, most of those attempts would probably go somthing like this if it involved a large company and a smaller company/copyright holder:

Company A (large):Alright, we'll agree to see the game rereleased, but we expect 100% profits up to a certain point and 75% on the dollar after.
Company B (small): Um, but we did all of the work making the game. shouldn't we get more of a fair deal?
Company A: You know, that's the type of talk that invites a hostile takeover...
Company B:Look at the time! Gotta go!

Sean_Aaron

#37

Sean_Aaron said:

@chunky_droid: You might be able to get somewhere with that, but a lot of research would be involved and it would probably me most successful with games from the 80s that haven't seen any sequels and weren't handled by big publishers. mamedev.org has 14 ROMs available for download for free; they've worked out a deal with the rights holders to make them available without profit, though and the games are all 30 (or nearly 30) years old, but I expect you could probably see some success in getting licensing for older games from smaller rights holders; you'd just have to be a good salesman.

Keep us posted ;-)!

brooks83

#38

brooks83 said:

Has anyone tried emailing Capcom or Disney Interactive and asking them if they would be willing to work out a deal to bring those old games out? Not that your email would help, or that they would even write back, but it would be interesting to hear about it straight from one of those companies.

Kevin

#39

Kevin said:

After reading this I really do regret selling my NES and Super NES stuff in anticipation for the VC service. I've never gotten to play Earthbound and it may seem that the only way some day to experience every game you want is with ROMs and if that happens will be too bad.

Stuffgamer1

#40

Stuffgamer1 said:

Wow, this situation is a LOT deeper than I thought. I do have one thing to add, though.

While emulation is technically illegal, you can't really get in any legal trouble for doing it with a game that's not currently available in any form (be it collection, VC, Live Arcade, PSN, or whatever else there may be). In order for legal action on the part of a copyright holder to be fruitful, they have to be able to prove losses caused by the use of the defendant. That's why Nintendo knows about the Mother 3 fan translation but hasn't tried to do anything about it. This ALWAYS applies when the alternate distribution is free, but things would likely get sticky if they tried to CHARGE for the download. Companies do have the legal right to fight against those making money from their copyrighted material, even if it's the only reasonable source of the material for a region.

So as far as that goes, emulating a game that you simply CAN'T buy in a way where the copyright owner gains some amount of profit is only illegal under a technicality. Nobody should feel the LEAST bit of guilt for emulating Earthbound as long as it remains unavailable for purchase. Nintendo's brought that situation upon itself, and there's nothing the company can do about it. That said, if the game ever DOES get released on VC, your ROM will suddenly become a TRUE variety of illegal which deserves guilt, at which point you should download it on VC immediately (and prove the game has market value once and for all!).

I hope that makes some people who were still iffy on the idea of emulating Earthbound decide to do it, while at the same time leaving them open to purchasing it when and if that ever becomes an option. The same can also be said of Ducktales, Goldeneye, and countless other games.

geek-master

#41

geek-master said:

im glad we have a copyright law :) so other game companies dont screw up games from other companies!

marktheshark

#42

marktheshark said:

Is it still somewhat possible to do our part to make sure that endangered works can be preserved?!

AlphaNerd01

#43

AlphaNerd01 said:

I've written about this before - but to make my point brief: Does anyone remember where retro gaming was 5 years ago? I do. To play retro games, I'd have to drive an hour to a quarterly retro gamers club meeting at an obscure game store, buy carts, trade carts, or just hope I can play someone's copy during the meeting. Now TONS of obscure games are available to download for a few bucks. We've made HUGE leaps, thanks to the all-mighty dollar.

What do I mean? Thanks to us, publishers have realized that retro games are profitable. So the win-win is they make money, and we get to play authentic-feeling emulations of the games. (Pirate emulators usually botch the sound, or have bad slowdown, et cetera.) What pisses me off about pirates is that they're detrimental to the process of progress. We're getting to the point where even licensed games can be made available to us thanks to their profitability. (TMNT Arcade on XBLA comes to mind.) Give it time, and keep playing the games legally, and I'm certain publishers will realize retro gamers are a fertile sector of the marketplace just like "casual" gamers are. (If they haven't realized this already.)

JaredJ

#44

JaredJ said:

The SNES version of Aladdin was ported to the GBA so obviously capcom and disney agreed to terms for that. So why not the virtual console?

Stuffgamer1

#45

Stuffgamer1 said:

@JJ: That's not the only game Capcom and Disney put on GBA, either. But there's a difference between making a deal for $30 retail games and $8 downloads, at least in the minds of those making the deal. I think they'd make more money on the VC than the GBA games, but I doubt they agree with me on that one.

metakirbyknight

#46

metakirbyknight said:

All of these companys should stop being greddy pigs and work together (gasp!) and create an emulation website and release their games for a minute. And Rare and Nintendo if getting GoldenEye means an extra few bucks so be it! You'll still make money.

#48

said:

This is a little off-topic, but, as soon as the article mentioned older games getting a newer chance to make money, I was thinking about how much more popular "Zero Wing" would be these days. Especially the Genesis version.

Sean_Aaron

#49

Sean_Aaron said:

@AlphaNerd01: I totally agree and that's why my VC Arcade wish is a list of games that comprise the bulk of my MAME collection (I don't expect the hentai mahjong games to appear for some reason). I'm happy to buy each and every one of them if someone will see fit to publish them on my preferred gaming device.

blank_user_1

#50

blank_user_1 said:

Also, for some devices, the only way to play classic games is to get ROMs. Take for instance, the Palm OS, which I can use LJP (an emulator) to play awesome classic games. I wouldn't mind paying money for these games, but there is simply nobody selling the format I need. If they aren't selling it, then I'll just get it without buying it-- got no other choice.

Great feature, btw.

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