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legal status of atari vcs rom images


retrowilly

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I am currently knocking together a site, mainly as a learning exercise for myself and would like to include some rom images. I wondered what is the legal status of them, are they public domain? I know roms are available for download here, but i would like to know if this is ok by the copyright owners

 

Willy

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Good question. After all these years of collecting, I'm still not sure what the legal status is.

 

I take it there's not a simple answer. Some game producers no longer exist and the copyright holder has died with them. Others just don't care, and still others care so much they have O.K.ed the distribution of ROMs.

 

I guess there may also be a difference between the ROMs of released games and prototype games. Prototypes of non-released games were not supposed to be 'out there', so owning such a proto or its ROM is probably illegal.

 

All just my guesses though. Anyone have the defenite answer?

 

Cheers,

 

Marco

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I think another point that needs to be noted is that the people distributing the roms are not making any money off of them. If you were selling them or charging a membership fee for you site I believe you may have more of a legal problem.

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quote:

Originally posted by atari70s:

hey marco

 

 

well i think u need to refresh the copywrite on things like the title every liek 3 to o5 years.

 

The law was different in the eighties, but according to current law, copyright never runs out. At that time, copyright notices were required, by law, in order for the copyright to be retained. The years were updated regularly, just to ensure anyone who was unclear that the copyright was still in effect. Back then, if you left the copyright notice off a product, you could be in danger of causing it to fall into the public domain unintentionally. This is no longer the case. Now, someone continues to hold copyright on any item from the time of creation onward, regardless of any notice. And this law was retroactive, so cases of missed copyright notices from the eighties will not damage a copyright today.

 

Most 2600 games (or any games for that matter) are considered what is called "work for hire" so the copyright goes to the company for whom the game was made. However, in a case such as 'Garfield' the copyright continues to be held by Paws, Inc. just as it was at the time. That is why a special arrangement was set up with Paws, Inc. to allow the release of the Garfield ROM. (You are legally allowed to download the ROM and retain ONE copy of the ROM on a cartridge for personal use only.) So, certainly any licensed games (Star Wars, Indiana Jones, Alien, etc.) are still technically owned by their respective companies. Something like 'Lost Luggage', on the other hand, is trickier. The company, Apollo, no longer exists. The copyright then either goes into the public domain, or, more likely, reverts to the designer/programmer who created the game. The only was to find out which is to check the contracts under which Apollo employees worked. This sort of thing was usually delineated there.

 

As to the point about not making money, that doesn't hold water. If a company or individual is aware of someone using their trademarked or copyrighted material and they do not pursue the offender, they are in danger of losing their trademark or copyright. This is why companies have to go after what seems like harmless individuals with such vigor. If they don't, when a truly damaging individual does the same, they can point to the company's lack of prior action and get off.

 

It is a very grey area. Unfortunately, this issue will not be settled completely until there is a court case to decide precedent. And, unfortunately, that means someone will have to sue someone for copyright infringement. I am always worried that this is going to happen, especially considering how often old games are resurrected these days. Sooner or later, someone is going to be of the opinion that all this free swapping of ROMs infringes their copyright. The issue may then finally be settled, but it's going to be ugly for whoever is on the receiving end of that lawsuit.

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Isn't there a statute of limitations on intellectual property? Something like 80 years or somesuch? I do know that an artistic work, such as pieces of music, has a statute of limitations. Classical works -- Beethoven, Bach, Handel, etc. -- are public domain -- or at least royalty-free, as evidenced by the volume of classical music CDs performed by a litany of different symphony orchestras. Many works by long-dead authors, such as Mark Twain, T.S. Elliot, Sir Arthur Conan Doyle, Edgar Rice Burroughs, Mary Shelly, etc. are also freely distributable in electronic form. Heck, you can go and download Alice in Wonderland from practically any E-Book-related website. This, because IIRC, the statute of limitations on the copyrights of their works has expired.

 

Of course, these were all copyrighted during a time when the limitation was expected to more than cover the life of the holder, thus protecting his or her financial interest in the work for however long he lived. In all likelihood, the Digital Millennium Copyright Act ammended this to account for more modern prusuits where copyrights were expected to cover the life of a company and not an individual, and so don't expire so long as there is an entity to pass the copyright on to. But the DMCA was created in the late 90s, and wouldn't apply to old Atari ROMs, so I'm speculating that perhaps things are different in that regard. Is there a difference between an individual copyrighting a work and a corporation?

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Although "statute of limitations" is not the correct term (that usually refers to the amount of time for the pursuit of criminal or civil charges) the concept is correct. All copyrights are expected to eventually run out. But from the time copyright began to be incorporated into law, it always encompassed at least the life of the creator. (This is what I was thinking of when I said copyright never runs out. Obviously I phrased it wrong. Sorry.) Works by creators such as Shakespeare, Mary Shelley, and others were not really protected because the copyright laws (if they existed at all) just were not effective.

 

As an example, in Shakespeare's day all you needed was a copy of a text and noone could stop you from printing it. (Unless you were under the patronage of a powerful member of the aristocracy.) I believe the most recent amendments to copyright law extend twenty-five years after the creator's death with the ability of his/her heirs to renew for another 30-50 years. (I haven't really looked this stuff up recently.) The length of the copyright is continually extended due to intense lobbying from companies like Disney, who are terrified of what will happen when Mickey Mouse falls into the public domain. There will be no way to stop any unscrupulous company from not only releasing crappy videos like they already do (because the films themselves have fallen into the public domain), but making their own Mickey Mouse cartoons, over which Disney will have no power. Disney, of course, has the additional protection of a Trade Mark on Mickey, but that could only prevent someone from making a movie called "Mickey Mouse and the Whore House" not "Cartoon Fun at the Whore House" with a character in it that looks like Mickey, sounds like Mickey and, perhaps, is even named "Mickey." The character will be lost.

 

Corporate copyright is usually even stronger than personal copyright, at least in its initial period. I believe these days the initial period of time is some one hundred years for works for hire. (Mickey btw is not classified as being wfh as Walt created him before incorporating Disney. Therefore Mickey's 'expiration' date is keyed to the death of Walt Disney.) Corporate copyright may also be able to be renewed.

 

As for any new copyright law enacted in the 90's not affecting work of the 80's, this is simply not true. Changes to copyright laws are always retroactive, affecting any item still under copyright. They do not, however, affect items that have fallen out of copyright. So if an item's copyright expired in 1999 and a law was passed in 2000 extending copyright another ten years, it would not go back under copyright. But something that would expire in 2001 would now have until 2011.

 

Ultimately, I think all of the Atari 2600 ROMS are, in fact, covered by some kind of copyright. Either by a still existing company (Activision, Atari/Infogrames/Sega, etc.), the company who licensed it (Lucasfilm, Paws, Inc., etc.), or the person who wrote it. Many have been freely released for distribution. Many companies are so completely lost into the distant past that there's noone interested in pursuing them. Many are still carefully guarded (such as Telegames and the ColecoVision ROMs they claim.)

 

This is something that needs to be looked at seriously, with an eye towards settling the issue. If I can find enough free time, I will try to track down the relevant laws, so as to conclude exactly what the status of these ROMs are. Unfortunately, I just started work on a show I'm directing (>>>plug ShakeCo.com plug<<<) and won't be free for such an endeavor until probably October. If no one has put forth the effort by then, I'll gladly tackle it.

 

[ 07-27-2001: Message edited by: Rhindle The Red ]

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hey marco

 

 

well i think u need to refresh the copywrite on things like the title every liek 3 to o5 years. ever wonder how one air sea battle says 1981 atari inc. and then 1986 says 1986 atari corp. ? they have to redo teh copywrite (protection of the name contents) every 5 years . now yea i guess you are goign to find a collector that will keep up on that. and ab;le to provei keep the rights to game airsea battle or or pacman. wel pacman i think right were to hasbro cause they made CDROM games for it but for as proto they never realeased it and probably never kept up with updateing the right so it probably legal to own it after the 3 to 5 year period . but for the most part noone cares. ( thank you to my law in society class last year in helping here in the is email)

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I sort of gathered that pretty well all 2600 games that have not been released into the public domain or freeware categories are protected by a copyright, though who exactly owns many of them has probably been long lost in the annals of time like many a prototype. That of course still doesn't make them fair game, but it does likely mean that distributing them won't in all probability bring about any kind of legal retribution. There are quite possibly some companies who could and may still do something about it, but I'm of the opinion that while retrogaming, and the VCS in particular, is quite popular at the moment, it would still be more trouble than it's actually worth to defend a copyright. While for a large company the legal fees wouldn't be prohibitive, it would still be a waste of resources, and for individuals, it just wouldn't be worth the time and expense. Personally, if I'd written a few VCS games back in the day, I really wouldn't care if they were distributed in ROM form; in fact, I'd be happy to see the legacy kept alive by fans who truly enjoy it. It would be a mark of some distinction for me to know that something I did 20 or so years ago still survives and is used to this day. Hell, its commercial value has long since passed, so why would I want to jealously guard a copyright that I have no hope of ever again benefitting from? It just wouldn't make sense for me to spend time and money preventing someone from 'stealing' something that's no longer worth anything to me.

 

But that's just me, and this is all just my opinion.

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Thanks for the feedback,........but it got me thinking, if it is unlikely that copyright owners are unlikely to enforce their rights to a game they created, wouldn't it be cool if these rights could be auctioned off to enthusiasts, money could go to the games creator (a few hundred bucks may be better than nothing at all) or to charity (a retirement home for programmers springs to mind ). If that were the case what games would you pay good money for to say you 'truly owned' and how much would you be willing to pay considering you couldn't make any money from it..........i know its a crazy idea, i just wondered

 

Willy

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quote:

Originally posted by Ken @ Activision:

WITHOUT A DOUBT... "IT IS NOT LEGAL TO POST ANY ROMS TO A WEBSITE AT ALL."

 

I have to take issue with this statement as well, this simply is not true and it's misleading to people who don't know better. It makes it sound as if ROMs are intrinsically illegal, and they are not. As Albert noted, it's a matter of copyright on the individual piece of software.

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It is PERFECTLY legal to have ROM images of Carts you already own, no matter where you get them. The Paris Act, which was signed by 96 countries on July 24, 1979, states that the rights of the copyright owner are NOT absolute, and that the consumer may keep back-up copies of material they have legaly obtained (among other rights). This is why most sites that offer ROMs have a disclaimer that say something like "Any downloaded ROMs must be deleted after 24 hours unless you own the cartidges, under penalty of copyright law." But I know of no law that prevents you from storing your roms on a website, even tho webmasters have been successfuly sued over the intent of their sites.

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Okay, I went to the U.S. Copyright Office web site (useful thing, the Internet) and found some detailed information on Copyright.

 

The current Copyright laws state that copyright begins at the time of creation and extends 70 years after the creator's death. In the case of works for hire, "the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter." Since the cutoff date for this law is 1978, most Atari 2600 works would fall into this category.

 

For items published or registered on or before January 1, 1978, we have to go back two laws to find the answer. Pre-1976 all copyrights existed from the time of publication or registration and last 28 years. During the final year the copyright was eligible for renewal for another 28 years. The Copyright Act of 1976 changed the renewal period to 47 years, giving a total coverage of 75 years. As of 1992, renewal registration was optional and all copyrights automatically renewed. Public Law 105-298 enacted in 1998, extended the renewal period another twenty years, for a total of 95 years from the time of original publication or registration. This would cover any games created before 1978.

 

Therefore all games made for the 2600 are currently under copyright to someone (even if they don't know it or care).

 

As for copying, Here it is word for word:

quote:

§ 117. Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy.-Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

 

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

 

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

 

(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.-Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

 

© Machine Maintenance or Repair.-Notwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if-

 

(1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and

 

(2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine.

 

(d) Definitions.-For purposes of this section-

 

(1) the "maintenance" of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and

 

(2) the "repair" of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.


 

So you are right about being able to posess copies of games you legally own. You can even "authorize" others to make them for you.

 

This, however, is a far cry from openly offering ROMs to anyone who wants them, with or without a disclaimer. You say you "know of no law that prevents you from storing your roms on a website, even tho webmasters have been successfuly sued over the intent of their sites". But there must be a law (probably this one) because otherwise they couldn't have been successfully sued. As you can see, it clearly states that the "Lease, Sale, or Other Transfer of Additional Copy or Adaptation" is only allowed along with "the copy from which such copies were prepared" and with "the authorization of the copyright owner." I think you'd be hard pressed to say that you are "archiving" ROMs on a Web Site (where they are open to everyone) and not "transferring" them (because anyone can take them).

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As a side note, the inclusion of box photos, scans of instruction manuals and the like is probably covered under the "fair use" provision

 

quote:

§ 107. Limitations on exclusive rights: Fair use

 

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

 

(2) the nature of the copyrighted work;

 

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

 

(4) the effect of the use upon the potential market for or value of the copyrighted work.

 

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 


 

AtariAge uses images of boxes, instructions, etc. to give a representation of what these things were like back in the day. The images are not the originals and are not even of high enough quality to be used to make copies that appeared to be originals. (I mean, they're good, but they're not that good.) ROMs, however, are exact copies of the originals and still have intrinsic value. While I know of no companies that still use the same instruction booklets and boxes that they did in the 1980's, they do still use the code. The original 2600 Pitfall was incorporated into many of the versions of Pitfall: The Mayan Adventure, but not all. In fact, IGN knocked a few points off the Gameboy Advance version for not including it. This demonstrates that the ROM not only still has value, it is still in use and is affected by section (4) - the issue of the effect upon the value of the copyrighted work.

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My question with regards to scanning is, exactly where is the line that separates a scan from falling under "fair use" to being an infringement of copyright? I mean, putting aside for the moment the intent of the scan and its free, public availability, of what quality would a scan have to be before it crosses the line of fairness into infringement? For example, you never see any good or even passing quality scans of CD covers available on commercial entertainment websites, be they record companies or music E-vendors. In pretty well every case the scan is miniscule; enough to identify it for what it is, but not enough to do much more, and certainly not enough to reproduce any kind of legible copy. For record companies I imagine this is to prevent piracy both of the CDs they distribute and the covers to go with them. For commercial vendors, I figure this is because any larger or any better and they fear stepping over the boundaries of fair use -- which is also why any audio samples they offer are no longer than 30 seconds, as that falls within fair use regulations.

 

So where does that leave box and cart scans? Even if they are not of the same quality of the originals, and even if the format has changed from cardboard to digital, they are still reproductions in their entirety, the same as if one were to digitally sample an entire album from vinyl or cassette to burn on CD, and so must be subject to the same laws if those boxes themselves and/or the artwork they bore (including trademarked corporate logos) was copyrighted. Even the box I'd worked on for Airworld could be considered infringing because I use the trademarked Swordquest logo, the Atari fuji, and the stylized Atari name.

 

Just a thought...

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Ken.. is that Activision's official stance or your opinion?

What are the chances of obtaining (for a reasonable fee, of course) a license for all of Activisions works for a given platform? For example, say I want to get all of Activision's games for the 2600 (or 5200 or Coleco) but cannot find them "in the wild".. so I grab all of them from AtariAge or some other ROM repository.. though I want to stay legal.

 

Would this be feasible at some point? IMHO, it wouldn't infringe on sales of the compilation packs since the compilation packs include extras.

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WITHOUT A DOUBT... "IT IS NOT LEGAL TO POST ANY ROMS TO A WEBSITE AT ALL." The fact of the matter is ... "These games DO belong to someone." Whether it be the company' bankruptcy lawyers, the original pulisher or the original programmer. IT IS NOT LEGAL TO POST THIS STUFF TO WEBSITES AND THINK THAT IT'S PUBLIC DOMAIN. "Because it's not." It's a "sticky" subject. I don't condone it, but.. at the same time.. "How do you stop it?" If a publisher or programmer affiliated with the game wanted to pursue Legal actions. He or She could and would more than likely, win that battle as well. It's kind of a "Do I or Don't I" situation. Maybe the company or persons will care enough to follow-up with Legal actions, or maybe they won't. If they don't, then you're probably OK. But.. if the person or company chooses to do so, well then you've got yourself a real problem.

 

Thanks,

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quote:

Originally posted by Mindfield:

[QB]My question with regards to scanning is, exactly where is the line that separates a scan from falling under "fair use" to being an infringement of copyright?

 

they are still reproductions in their entirety, the same as if one were to digitally sample an entire album from vinyl or cassette to burn on CD, and so must be subject to the same laws if those boxes themselves and/or the artwork they bore (including trademarked corporate logos) was copyrighted. Even the box I'd worked on for Airworld could be considered infringing because I use the trademarked Swordquest logo, the Atari fuji, and the stylized Atari name.QB]

 

I believe the relevant sections for boxes are (1), (2), and (4) above.

 

According to criteria (1) (the purpose and character of the use) AtariAge use of the box art is not commercial in nature. And although this could be stretching the concept (but I think not) it is also for educational purposes.

 

Criteria (2) speaks of the nature of the copyrighted work. The copyrighted work in this case is a box, not a flat image. As I stated, the images are not good enough (or complete enough) to recreate a box.

 

Criteria (4) speaks to the effect upon potential value. The value of actual 1980's boxes are not diminished in the least by the reprinting of their artwork here.

 

As to the small pictures at web stores, I think that's mainly a bandwidth issue. No one who's getting into the bootleg CD business is getting their images from amazon. They buy the commercial product and scan it themselves.

 

Instruction manuals are a little trickier, as a claim could be made that they exist to instruct legal owners of the use of their games. A claim could then be made that reprinting them diminishes the value of the originals. But this aspect of the claim has already been dealt with. Nintendo and Sega sued rental stores for copying instruction booklets for inclusion with rental games whose original instructions had been destroyed. The rental companies claimed that their reprinting (or summarizing, which the game companies also objected to) was fair use, as the copies were not of sufficient quality to be mistaken for originals, nor were they represented as such. The courts found in the rental companies' favor.

 

Again we can then look at the (1) purpose, which is to provide instructions for those who have none. Since they are not currently available for purchase from the original companies, fair use can probably be claimed, since there is no profit.

 

Your comparison to burning CDs is not correct. A digital copy of a piece of paper is not a true replacement of that piece of paper. I can't take a .jpg of an Adventure box and put it on my shelf. This is touched upon in the (2) nature of the copyrighted work section. Part of the copyright is that it is a box. A digital box is no replacement. A CD, on the other hand is very much a replacement/alternative to vinyl or cassette. They are considered to be of the same ilk. So moving from one to the other is just as infringing (under the circumstances where it is) as copying the pages of a book at Kinko's.

 

Also, remember the most significant aspect of copyright violation: distribution. Most of the limitations on copyright revolve around people being able to make copies for their own use. If I have a CD, I can copy it to keep the original safe, or so I can listen to it in my car, where I don't have a CD player. But legally I can't give it to someone else (even without profit - (4) effect on market value). That's distribution and that's where the s**t hits the fan.

 

As to the Airworld box art, the issue for you (and anyone else working on an unauthorized sequel to a classic game) is not primarily one of copyright. You correctly mention it yourself. Your problem is one of Trademark law. 'Swordquest' is probably still trademarked by Atari/Infogrames. I mentioned in another thread that Adventure is probably one of the few safe titles, as Adventure as a video game title pre-dates the 2600 version by some years. Rhindle, Grundle, and Yorgle, however, in all likelihood still belong to Atari (both copyrighted and possibly Trademarked). You cannot copyright a title. This is why no one had to pay Atari for the movie Water World. But you can Trademark words and phrases for particular use, such as Tempest, Defender & Asteroids. All perfectly ordinary words, but with specific meanings to video games. You definitely are on shaky ground using the Fuji. Infogrames clearly places value in it and might take a dim view on people using it. I don't know what they think of the CGE guys using it (or what Taito thinks of them releasing Elevator Action at all) but I suspect they cleared that hurdle before proceeding. (At least I hope they did.)

 

My advice to all you guys out there working on these things is to get the blessings of the owners.

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quote
WITHOUT A DOUBT... "IT IS NOT LEGAL TO POST ANY ROMS TO A WEBSITE AT ALL."  

 

...Unless the copyright holder has released the games into the public domain or given permission for the ROMs to be made freely available. Granted, this hasn't happened too often, but a good example is the Vectrex. Smith Engineering allows the not-for-profit distribution of Vectrex games, manuals and overlays.

 

Then there's all the homebrew games that have been created. Many of these can be downloaded off the web with the full blessing of their authors. Sure, they still hold the copyright, but they're freely and legally available.

 

So I don't think it's fair to make a blanket statement that NO ROMS can be posted legally to the net.

 

..Al

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quote:

Originally posted by Alex:

I have to take issue with this statement as well, this simply is not true and it's misleading to people who don't know better. It makes it sound as if ROMs are intrinsically illegal, and they are not. As Albert noted, it's a matter of copyright on the individual piece of software.

 

Of course you and Albert are right, but it looks like the statement would be true for the ROMs we are talking about on this site: 2600, 5200, 7800 etc.

 

Now, I'm sure most of us couldn't care less, but still...

 

Rhindle, do you have any idea if it is legal to own (lab loaner) prototypes?

 

Cheers,

 

Marco

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With regard to the Atari properties being used on custom box art, the main issue there is that the Airworld sequel does not actually have anything to do with Atari at all -- except that it will play on two Atari machines, and that it is an unofficial sequel to an unfinished series of Atari games. That the box art bears a striking resemblance to Atari's "Silver2" layout, and contains all the trademarked Atari logos, is simply because the author of Airworld wanted it so, in order to enhance the illusion of reality, as if it were a real sequel to complete the series. Though the author has no intention of actually trying to pass his title off as an Atari release, that's the illusion he wants to present. Even so, Atari would certainly have no intention of okaying the use of copyrighted Atari properties for this purpose as I'm certain it violates half the sections under the current copyright law. (In particular, dilution and misrepresentation of a brand name) They may not particularily care if he were to use the Swordquest name (though they'd never approve it, they probably wouldn't care too much to pursue the matter) they'd certainly take umbrage to the attempt to pass it off as official Atari fare, illusory or not.

 

Still, I maintain that it is small time, and though it is a risk to participate in such activities, it is a calculated risk, and likely one that would bring about little if any retribution in consideration for the nature of the work being not-for-profit. When it comes down to it, it's just one person's fantasy to complete a series that suffered an early death during the crash of the video game industry in '84.

 

Basically I cover this in my Emulation Newbie FAQ, though it says nothing more than has already been discussed here. I do quote the same relevant area of the copyright law as you did.

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Marco, the issue of lab loaners (very dear to you I know) is a very grey area. It falls under the same grey area as Oscar screeners, Rental screeners, and promotional CDs. Almost all of these contain clear language to the effect that they belong to the company in question i.e.

quote:

For promotional use only.

Sale or other transfer is

prohibited. Must be returned on

demand of recording company.

 

But there is no such language on the loaner carts. They are, of course, called 'loaners' so the intent was not to let them stay outside of Atari Labs. But without clear language, the burden falls on Atari to prove you shouldn't have them. Making this harder for them would be the fact that it is well known that they often sold large sections of their inventories to raise cash. It would be impossible to prove where and when your loaners left Atari's hands, so the burden is again on them. Also, here is an area where there most probably is a statute of limitations, and it seems unlikely to me that it extends beyond 15 years. I think you're perfectly fine.

 

Mindfield, the problem with your argument is that you say that the author "has no intention of actually trying to pass his title off as an Atari release" but you also point out how he's doing everything he can to project the illusion that it is. It would be hard to make any such distinction in a court of law.

 

I also don't know why you say that "Atari would certainly have no intention of okaying the use of copyrighted Atari properties for this purpose". They have allowed this sort of thing (on a larger scale of course) before. The Game Boy Yar's Revenge began its life as a home brew title with no intention for a public release. Telegames picked it up, got the proper clearances from Atari/Hasbro and out it came. I'm not saying they would give permission, but I don't see how you could be so certain that they wouldn't.

 

I don't see why you can't make a strong resemblance to the Silver2 box without using the actual Atari logos. Here's a link to the cart image I sent in when he was asking for submissions.

 

Airworld label

 

You'll notice that it has all the feel of a Silver2 without using the same fonts, or any reference to Atari, outside of the "Atari 2600" name, which is just to identify the system it's made for. It should, therefore, pass muster except for the issues of the 'Swordquest' name and the use of the (no doubt copyrighted) image (which I believe is also Atari's is it not?). These would need to be solved to pass legal muster.

 

Anyway, as you say, there is risk involved in this. And you're probably right that the likelihood of action is small. I'm just trying to make sure that everyone understands that (small though it may be) the risk is there and that the law should not be shrugged off. I will maintain that you should seriously consider asking Infogrames for their blessing. They in all likelihood have no interest in the Swordquest brand name and may look favorably on you in the name of good will to fandom.

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My theory is if the programmer of the prototype asks for it back I'd give it to them. Until then I'm assuming that it's legal for me to own these games and distribute the roms. I couldn't believe that Infogrames would raise a fuss over someone distributing roms to games that were never released for a system that's over 20 years old. It's not like Infogrames is going to distribute these games themselves (they'd have to get a hold of them first).

 

Tempest

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quote
the problem with your argument is that you say that the author "has no intention of actually trying to pass his title off as an Atari release" but you also point out how he's doing everything he can to project the illusion that it is.  It would be hard to make any such distinction in a court of law.

 

Granted, but intent is always difficult to prove in a court of law. However, he does have in his favour the fact that he is not charging money for his project, which in itself goes a long way towards proving a benign intent. He also mentions on his own website for the project that it is his project, and though nowhere does he mention that neither he nor his project have any direct or indirect affilliation with Atari, neither does he make any direct connection to Atari. If he were to add a disclaimer to his page then perhaps that might also be beneficial.

 

quote
I also don't know why you say that "Atari would certainly have no intention of okaying the use of copyrighted Atari properties for this purpose".  They have allowed this sort of thing (on a larger scale of course) before.  The Game Boy
Yar's Revenge
began its life as a home brew title with no intention for a public release.  Telegames picked it up, got the proper clearances from Atari/Hasbro and out it came.  I'm not saying they
would
give permission, but I don't see how you could be so certain that they wouldn't.

 

That's a little different though. I'm certain there were royalties and/or licensing fees involved. Take a look at the homebrew sequel to Yar's Revenge; Infogrames ordered that he change the name of the game so as to eliminate any reference to an Atari property, or any seeming affiliation to Atari with regards to the project. Then, too, we can also look to the present issue with AtariLabs.com and Infogrames' demands to hand the domain over to them. All things considered, the climate at the new Atari doesn't appear to be very forgiving when it comes to outside sources infringing on their copyrights when it inconveniences, or has the potential to inconvenience them.

 

quote:

I don't see why you can't make a strong resemblance to the Silver2 box without using the actual Atari logos. Here's a link to the cart image I sent in when he was asking for submissions.

 

 

You'll notice that it has all the feel of a Silver2 without using the same fonts, or any reference to Atari, outside of the "Atari 2600" name, which is just to identify the system it's made for. It should, therefore, pass muster except for the issues of the 'Swordquest' name and the use of the (no doubt copyrighted) image (which I believe is also Atari's is it not?). These would need to be solved to pass legal muster.

 

Once again however, and aside from the usage of the Swordquest name and artwork, you are also using the "Atari 2600" box/cart logo. Although its usage is ambiguous, as it both references the system it's designed for, and the company that designed it. Atari are the only ones that make boxes and carts with the writing in that particular style; all other companies, if they even made reference to the system, simply said something to the effect of "For use on Atari 2600 VCS." Additionally, you'll notice on the Atari "Silver" box art that Atari has a ®egistered symbol, and 2600 has a trademark symbol, which leads me to believe that it is being used in reference to the company and its trademarked system name, and not exclusively as an indication of the system it's designed for.

 

quote
Anyway, as you say, there is risk involved in this.  And you're probably right that the likelihood of action is small.  I'm just trying to make sure that everyone understands that (small though it may be) the risk is there and that the law should not be shrugged off.  I will maintain that you should seriously consider asking Infogrames for their blessing.  They in all likelihood have no interest in the Swordquest brand name and may look favorably on you in the name of good will to fandom.

 

 

While they may have no interest in the Swordquest brand name, I would think that at the very least they'd require licensing to use the Atari name and Fuji symbol. That's why Ben Heckendorn removed these references from his VCSp units, so he would avoid potential licensing fees and/or legal issues. As I said, Infogrames, at least at the moment, aren't exactly casting a favourable eye towards Atari fandom. While they're leaving all the emualtion scene and ROM distribution alone, probably due to it being more trouble than its worth to pursue, they do seem to be taking particular umbrage to unlicensed use of the Atari name and logo. I suspect they're a little insecure about their recent decision to bear the Atari mantle, and are fighting to defend their exclusive right to do so to. Whether out of concern for the potential for the name's dilution, or simply because they want to prove that they're actively protecting their interests, I don't know, but in the end it doesn't bode well for hobbyists and fans who want to try and be a tangible part of the Atari legacy.

 

[ 07-28-2001: Message edited by: Mindfield ]

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