legal status of atari vcs rom images

[mos6507]

Consider Ken's post as official a statement we're ever likely to get on the subject from a 2600 copyright-holder.

 

I think that if Activision (and JTS, before Hasbo) had cracked down on the ROM trading in the early days (1994-96) that it might have gone differently, but at this point the damage has long been done.

 

Any action on Activision or Infogrames' part would be purely symbolic. Just about anyone who wants the ROM images either already has them or knows someone who already has them on their HD who can trade them privately Peer2Peer. Still, if they wanted to make an example, they could, and that's the risk all sites that have ROM images face, and something webmasters should fess up to and not rationalize.

 

ROM trading is a tenuous privilege granted by these companies' inaction. Call it silence = consent, but I really don't think it would hold up as a defense in court.

[Mindfield]

No, but then we go back to Activision's historical lack of anything having been done about the distribution of ROM images in the past. That they have done nothing in the past is likely to hurt their credibility if they ever tried to do something about it now. Pretty well any judge would take a dim view of a company who tried to stop such a thing now when they have already let it go on for so long. As you said, any such action would pretty well have to be symbolic, because it would have a slim chance of succeeding given the company's lack of past action clearly displaying their similar lack of interest in protecting their aging properties. Certainly it's still all about copyright violation, but as has already been said, a company or individual that does not vigorously pursue its copyrights risks losing them in a confrontation over them. That of course doesn't mean that they will, only that it is a very real possibility. The biggest thing any such company or individual has going for them in such a court case is that the individual(s) they are pressing suit against probably don't have the kind of financial resources they do to pay the requisite legal fees to see the case to completion.

 

Unfortunately, for most individuals, this is most likely the case.

 

[ 07-31-2001: Message edited by: Mindfield ]

[slapdash]

I wanted to comment on one thing:

 

quote:

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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.

---

 

This isn't entirely clear. It's not quite the way this reads (though I'm not a lawyer...).

 

Basically, the game company owns the program code, period. The licensing is typically of the names, characters etc. That's more of a trademark issue, not a copyright issue, though you'll often see copyrights from the originator (Disney, for example) indicated too.

 

But with these old games, the originator has no rights concerning the ROM itself. They could potentially sue for infringement over the likeness of the game graphics, but I think this is unlikely. They would have no right to complain if the graphics were changed enough so that the game no longer appeared similar to the licensed work(s), and the title/documentation was also changed.

 

For a living breathing example, look at Telegames's "Adventures of GX-12", which is actually the same game as "Adventures of Tron". They got the rights to make the games from M-Network, but not the rights to the trademark "Tron" (etc) from Disney, so they had to change the name. The graphics weren't derivative of the original work (the movie "Tron") enough to be a problem, so they weren't changed.

[Marco(2)]

quote:

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Originally posted by Russ Perry Jr:

But with these old games, the originator has no rights concerning the ROM itself. They could potentially sue for infringement over the likeness of the game graphics, but I think this is unlikely. They would have no right to complain if the graphics were changed enough so that the game no longer appeared similar to the licensed work(s), and the title/documentation was also changed.

---

 

Is this the very reason there are so many weird Taiwanese pirates out there with slightly altered graphics and the coolest names and "instructions"?

 

Cheers,

 

Marco

[Klove]

I think I had mentioned it earlier, but.. "It's really a touchy subject." I think.. "Yeah, you should be able to backup YOUR OWN catalog." But... "How many of you out there have D/l-ed the games, just because you want to play them on your emulators?" C'mon, I mean.. "How many people out there own.. say Tooth Protectors, Chase The Chuckwagon or even say.. the existing Pitfall beta versions?" For that matter... "How could you own Pitfall beta versions?" We never released them to the general public. Maybe you do own one of the aforementioned titles other than the Pitfall stuff. "That's great! go-ahead and back it up." Contrary to what people might believe, we do monitor various ROM sites. I can't offically speak for Activision when I say this, but.. if we were to pursue the release of say "Kabobber" for instance, we would more than likely send out a "warning" note asking the person(s) to remove that ROM from their site. For that matter, we'd probably ask them to remove all of our ROMS from their site. It's odd that this subject was brought-up as I was talking with a couple of our lawyers a few days ago about this matter.

 

Hey Glenn!

[mos6507]

"Pretty well any judge would take a dim view of a company who tried to..."

 

You are not an expert in copyright law and therefore these are merely layman assumptions on your part.

 

It would be really foolish to, let's say, defy a request that Activision makes to take down ROM images, thinking that the case would get thrown out in court.

 

If people want to put ROM images up as a form of purposeful civil disobedience for the sake of digital preservation, that's fine. Several URs and prototypes have been put into circulation, hence providing a good means of digital redundant backup, which I feel is generally good for the hobby.)

 

(BTW, I certainly feel that the ROM images here are well-presented, since it's not just a ROM image bank, it's more of a fully functional digital museum.)

 

What we've got here is like the movie industry around the time that silent films were crumbling on nitrate stock... The game companies with a long history have generally not been acting to preserve its history, leaving us to (at least temporarily) save it for them before it's too late (in the case of the packaging materials and prototype EPROM contents--production ROMs are pretty safe). But in the end it's still their assets which they can reclaim at any time.

[Mindfield]

Well, I never said the case would get thrown out of court -- certainly it would get its due consideration. I merely meant that a company's credibility would be called into question when they have historically failed to prevent the very same actions they would now be pressing suit for. As was mentioned earlier in this thread, a company who did not vigorously work to protect their intellectual property could risk losing it at the discretion of a judge should the matter be brought before the bench, citing past inaction as a reason for deciding in favour of the defendant(s) merely to prove a point or to make an example.

Don't get me wrong, I have no illusions that the likes of Activision could press suit and in all likelihood win by sheer force of will should they so choose, but the chance still exists that the wrong judge would be sitting on the bench one day, in a foul mood because someone had gone and starched his robe, and, just to make an example, rule in favour of the defendant(s) because Activision's lack of such action in the past has shown a lack of interest in protecting their intellectual properties and, therefore, shows that they have no interest in retaining the rights to them. Or perhaps, at the very least, he would dismiss the case; the starch was light.

 

(Sorry, Ken ... your presence here simply brings Activision readily to mind as an example. :-)

 

And no, I'm no lawyer and so have no significant legal expertise upon which to base a solid legal argument, but I am familiar enough with general law to have an idea how it works. I know judges have the poewr to decide a case in either direction based on evidence and circumstance, and in a case such as this, while there is clear violation of copyright law, there is a history of inaction in pursuing past such opportunities to protect their property, which shows a lack of interest in protecting that property. To a judge, either you're interested in enforcing a law, or you're not. There's no gray area; you can't selectively enforce a law just because one person in particular twisted your knickers the wrong way for whatever reason. Well, I mean, you can, of course, but doesn't foster much confidence in the argument that you're really cheesed at the copyright violation if you've pursued it in this one case, but none of the others.