Interesting article

[Rom Hunter]

http://www.1up.com/do/feature?cId=3177520

 

Amen.

 

Edited January 31, 2010 by Rom Hunter

[SoulBlazer]

I agree with the article 100 percent, FWIW

[Cebus Capucinis]

Very good article! Great read and a very good argument for preservation of technological history vs. piracy in the standard sense of the term. Just imagine what the world would be like if everyone sued everyone at the drop of a hat for things like that -- from the start of the concept! We likely wouldn't have nearly the understanding of history we do have.

[carmel_andrews]

Steady on there shawn, your'e too young to die from a coronary

 

Fact is though the article does have a point, the companies come and go and don't give a pip squeak about their products (be it released or unreleased) after all when was the last time you heard activision or atari release source code or gaming content for rare/proto or unreleased games or software (try never or very rarely) only company that i am aware of that has released (albeit by a 3rd party) source code for retro games is atari, and if i recall correctly all of those games were 'commons' (to using the terminology)

 

And ultimately if we want to preserve gaming history as we know it then things have to continue as they are (especially with games software orig. on cartridge/disk (non cd/gd/dvd)/tape etc) as the companies who 'own' this content are'nt going to bother preserving it, nor the programmers or other employees of those companies...to prove a point, try asking any of the famous atari/activision/imagic coders etc that have frequented atariage since it's inception as to how much unreleased content was erased from the original media or just dumped in the rubbish bin and compare that to how much content was saved

 

Ultimately you have to ask yourself this, if piracy is bad, emulation is illegal (to a certain extent) and companies don't give a flying f**k about protecting or preseving their digital archives/heritage then the likes of all these rares or proto's that show up on AA or ebay simply would'nt have existed

 

Also, seeming as though we are talking entertainment media, let me cite you an example of why it's important to preserve certain forms of media content

 

I seem to remember a story doing the rounds a few years ago about the BBC litterally wiping yards of original tape reels of old 50's/60's telly programs (original reels when no copies were ever made) to re use again for new programmes (way back when) in an effort to save on costs (i guess because buying tape reels back then cost an arm and a leg)... And try and multiply that for any other broadcaster (tv or radio)...that's literally destroying years of entertainment and televisual heritage

 

What would you say if WB or Universal or 20th century decided tomorrow, that to save on costs of buying more colour film reels that they will litterally wipe over years, if not decades of original film reels (even if it's a classic like godfather, french connection, original star wars etc etc)...I think you get my point

 

Ultimately, if the companies aren't interesting in preserving or protecting their digital media or electronic media content heritage then there's only one group of people that are going to do so, and that is either through piracy or illegal distribution etc and those who go out of their way in obtaining this unreleased or proto media content

 

 

And remembering ofocurse the segment of the classic/retro gaming and computing market (less emulation ofcourse) is ultimately reliant on preserving and protecting electronic/digital media heritage through a concept known as 'collecting'...if we had no collecting, we'd be losing huge swathes of our electronic entertainment heritage...have you thought of that

 

Just a thought, thats all

Edited January 31, 2010 by carmel_andrews

[Rom Hunter]

Steady on there shawn, your'e too young to die from a coronary

 

Fact is though the article does have a point, the companies come and go and don't give a pip squeak about their products (be it released or unreleased) after all when was the last time you heard activision or atari release source code or gaming content for rare/proto or unreleased games or software (try never or very rarely) only company that i am aware of that has released (albeit by a 3rd party) source code for retro games is atari, and if i recall correctly all of those games were 'commons' (to using the terminology)

 

And ultimately if we want to preserve gaming history as we know it then things have to continue as they are (especially with games software orig. on cartridge/disk (non cd/gd/dvd)/tape etc) as the companies who 'own' this content are'nt going to bother preserving it, nor the programmers or other employees of those companies...to prove a point, try asking any of the famous atari/activision/imagic coders etc that have frequented atariage since it's inception as to how much unreleased content was erased from the original media or just dumped in the rubbish bin and compare that to how much content was saved

 

Ultimately you have to ask yourself this, if piracy is bad, emulation is illegal (to a certain extent) and companies don't give a flying f**k about protecting or preseving their digital archives/heritage then the likes of all these rares or proto's that show up on AA or ebay simply would'nt have existed

 

Also, seeming as though we are talking entertainment media, let me cite you an example of why it's important to preserve certain forms of media content

 

I seem to remember a story doing the rounds a few years ago about the BBC litterally wiping yards of original tape reels of old 50's/60's telly programs (original reels when no copies were ever made) to re use again for new programmes (way back when) in an effort to save on costs (i guess because buying tape reels back then cost an arm and a leg)... And try and multiply that for any other broadcaster (tv or radio)...that's literally destroying years of entertainment and televisual heritage

 

What would you say if WB or Universal or 20th century decided tomorrow, that to save on costs of buying more colour film reels that they will litterally wipe over years, if not decades of original film reels (even if it's a classic like godfather, french connection, original star wars etc etc)...I think you get my point

 

Ultimately, if the companies aren't interesting in preserving or protecting their digital media or electronic media content heritage then there's only one group of people that are going to do so, and that is either through piracy or illegal distribution etc and those who go out of their way in obtaining this unreleased or proto media content

 

 

And remembering ofocurse the segment of the classic/retro gaming and computing market (less emulation ofcourse) is ultimately reliant on preserving and protecting electronic/digital media heritage through a concept known as 'collecting'...if we had no collecting, we'd be losing huge swathes of our electronic entertainment heritage...have you thought of that

 

Just a thought, thats all

Pearls for the Smurf, but well spoken, Carmel.

 

Edited January 31, 2010 by Rom Hunter

[Cebus Capucinis]

From a legal perspective they're not eligible for copyright protection anyway. One of the first qualifiers for copyright protection is that a product has to be released for the general public in order to be protected. If the game is unreleased and was only used as an internal sample for a company, you're not infringing upon anything by preserving that information anyway, so it's not like they have any grounds to sue you.

 

Like carmel said, they're not GOING to sue anyone anyhow, so it doesn't matter, but even if they were to magically send the lawyer army after someone, they wouldn't have a leg to stand on in a court of law. Their unreleased product simply isn't eligible for the protections that a copyright provides.

 

And, as far as copyright protection is concerned, you could EASILY claim the three whammies for fair use.

 

A) You don't make a dime from your activities, because your intent is to preserve information.

B) You are not in competition with the company and they do not lose out on business because of your preservation, and most important:

C) You are interested only in furthering the historical record and education of the public at-large rather than making any money from point A.

 

You'd be within fair use even if you WERE magically to be sued and they somehow decided they were magically offered copyright protection.

[TheRedEye]

It's weird how much I instantly trust a guy's legal advice because his avatar is a picture of Matlock.

[Shawn]

It's weird how much I instantly trust a guy's legal advice because his avatar is a picture of Matlock.

 

 

I gave him the nickname Matlock and he ran with it. "Matlock" is schooling to be a lawyer so your judgment isn't ill founded

[Cebus Capucinis]

Heh heh yep that was Shawn's doing. Actually I posted a huge legal guide to copyright respective to video games somewhere around here, and it actually turned out I was wrong, but I was wrong because I was being TOO conservative! The advice I posted above is almost directly from the Stanford Fair Use Center & Princeton's Copyright Center.

[carmel_andrews]

smurf's....haven't played that in years....think it was on a shop's 2600 i saw it (probably ported to other non atari platforms about now)

[Rom Hunter]

From a legal perspective they're not eligible for copyright protection anyway. One of the first qualifiers for copyright protection is that a product has to be released for the general public in order to be protected. If the game is unreleased and was only used as an internal sample for a company, you're not infringing upon anything by preserving that information anyway, so it's not like they have any grounds to sue you.

Tell that to the copyright owners of the Garfield proto.

 

Or is this a different case, because there was a limited release after all?

 

[carmel_andrews]

what would be interesting to know though is how much stuff (unreleased proto's/rare's etc) had or have we lost due to poor decisions by the software/games houses compared to how much we have saved (hopefully forever)

 

One game (or one series of games) that i don't think quite made it is the additional games that were supposed to complete the Alternate Realities series (apparently there were supposed to be 4 or 6 in all, only 2 got released), from what i recall, there was some sort of dispute or difference of opinion between intellicreations (the dev. co) and Datasoft (the games/software house) Intellicreations wanted all the games to be released together, the games themselves would be loaded in as additional datasets (a'la leaderboard/gauntlet alike) whereas datasoft wanted to each dataset as a separate game, unfortunately no agreement could be reached on the additional games (other then city/dungeon) so they were'nt released and it isn't known even if proto's or source code exist for the additional datasets (especially in their original intended release form)

Edited February 1, 2010 by carmel_andrews

[Rom Hunter]

I'm sure Tempest has written about these cases in his Rumor Mill section:

http://www.atariprotos.com/rumormill/rumormill.htm

 

Edited February 1, 2010 by Rom Hunter

[Cebus Capucinis]

Yeah, since the Garfield proto was given a limited public release, it is afforded copyright protection. It doesn't have to be advertised to hell and back and available to millions, but the qualifier is that it has to be -available- to the public. Even if it's just 5 copies sold to close friends and family, it was made available to the public through that venue and is therefore eligible for copyright protections.

[Nukey Shay]

Hmm...

Time to stick those copies of alpha and beta versions of modern games on the market, guys...since copyright doesn't cover them

 

 

It's all a grey area. Like anything, it follows the cash flow. Start distributing copies of protos around, don't be surprised if they go after you.

[Cebus Capucinis]

Um, copyright doesn't protect them, if you'd like to go to Stanford's Fair Use Center and look it up it's right there in front of you.

 

And no, it's not a "grey area". Something is either copyright protected or it is not. There is no "kinda-sorta-protected".

 

They can certainly TRY to go after someone, but they have absolutely no grounds whatsoever to do so. The most you'll likely get is a C & D letter in the mail, and we all know how amazingly useful those are for actually proving you have a case.

 

Now, they can claim Intellectual Property rights, and there you might get nailed, but Copyright in and of itself does not guarantee anything.

[Cebus Capucinis]

Actually Garfield is a really interesting situation. You have a prototype of a game, which on its face is not copyright protected, that was released in limited numbers, which therefore makes it eligible for copyright protection....in itself very strange! But you also have the licensee issue there as well. Even excluding the prototype status of the game, the game has unique features (characters, settings, activities) that are from Jim Davis' cartoon strip, which is a published work and is therefore eligible for copyright protections. Depending on the nature of the license obtained to get the rights for our little pixelated version of Garfield, a company may act as a proxy in the interests of the original copyright holder and sue the pants off anyone who wants to use Garfield in a video game. This doesn't answer the video game question but it certainly answers the copyright protection question in that instance!

 

That would depend on the document provided upon licensure release. It would have to be clearly stated that the licensee has the right to act in the interests of the original material holder -- this doesn't appear to be something that is implied. If the licensee does not have that right, then they're out on bupkus because they simply cannot sue third parties in the interest of the first party. Of course, at that point in time Jim Davis himself would likely step in and initiate separate suit in interest of the first party....

 

I have never seen any case law or any citation that shows that video game prototypes or 'works-in-progress' are given copyright status. It goes back to the 'written on a napkin in a bar' scenario -- just because I produce a napkin that I supposedly wrote down things in a bar supposedly three weeks before someone published the next Great American novel does not mean that napkin is given legitimate status as a 'work-in-progress'. Copyright is meant to define clearly and concisely when a product is 'created' for legal purposes.

 

It's mostly conjecture because we've never seen a case actually go to court to provide a basis for understanding, but honestly I don't think we ever will. It's too fishy for a company to attempt to force a copyright suit on something that was never released, because the only methodology they have to prove creation dates/times are internal documents and those aren't guaranteed any sort of status as hard evidence, as they can be easily forged or created on the spot. Copyright avoids all of these situations by giving a concrete date of creation, but the qualifier is public release as then you have a large number of witness statements and whatnot as hard evidence to prove the creation.

 

C & Ds may fly their way across the country and take up reams of papers, but until there's actually a solid, courtroom documented case that proves one way or another, nobody can essentially be 'right' 100% on it.

 

Of course, this does not mean a company can't sue you anyway. They can easily use the 'deep pockets' strategy to force a settlement on any little guy's part -- just bury you in legal fees to the point that you relent or go bankrupt. It's not an ethical strategy in a court of law but it's a working business strategy. He with the deepest pockets can often win, but he won't actually 'win' in court because a settlement without prejudice doesn't really hold a lot of water.

[NovaXpress]

Forget about what "should" happen in these cases. Let's talk about what actually happens.

 

The courts tend to side with big business in copyright/IP cases. If someone who sells a unreleased prototype gets sued by Activision they will almost certainly lose. People argue about "fair use" every day but the bottom line is that the principles are so vague that an expensive corporate legal team is almost certain to win.

 

However, big business is all about the bottom line. Even the creation of C&D letters is a huge expense. To actually take a cart seller to court could cost six figures. There simply isn't enough money at stake in the proto business to make such lawsuits worthwhile.

 

The selling of classic games is a true Grey Market and that's the way it should be.

[Cebus Capucinis]

The courts tend to side with big business in copyright/IP cases. If someone who sells a unreleased prototype gets sued by Activision they will almost certainly lose.

 

Can I get a case law citation for this? When has this been in court? I cannot find a single citation for it, and believe me, I've tried. The reason why I've never found a citation is because it never goes to court. It never goes to court because plaintiffs in this instance do not have a case to start with.

 

People argue about "fair use" every day but the bottom line is that the principles are so vague that an expensive corporate legal team is almost certain to win.

 

The "principles" of the definition of fair use are clearly defined by court of law and are, in fact, the impinging basis from every single copyright case that has ever been to court since the inception. You will hardly find a clearer definition in law than 'acceptable use'.

 

Characteristics of 'Fair Use'

 

You can't conjecture whether they "will win" or not with absolutely no legal basis whatsoever to make that judgment call (not you personally, just anyone in general due to lack of precedent). You can, however, cite the laws as they exist in themselves and stake out a general idea of how a case will pan out. The definitions of fair use are clear and if you were to actually sell a prototype of an unreleased game there's three separate layers in which your defense is solid. This is why it has never been to court as referenced above. Corporations aren't suing people simply because it's a waste of money. Corporations aren't suing people because they don't have a case.

 

However, big business is all about the bottom line. Even the creation of C&D letters is a huge expense. To actually take a cart seller to court could cost six figures. There simply isn't enough money at stake in the proto business to make such lawsuits worthwhile.

 

Especially when you consider the fact that they have absolutely no legal basis to stand from in the very beginning because of the clear-cut definition of what 'fair use' entails.

 

Secondary note: Any corporation large enough to do business in the 6 figures is going to have a legal team on retainer. They're not spending a dime on C & D letters more than they already would be doing if they had their legal team actually drive to your house and hand-deliver them. To claim that this expense is something that a company just doesn't do the bean-counting for is inaccurate. They're paying those attorneys whether they send a letter or not, so they might as well get a few C & Ds or some court-awarded funds to help pay for those attorneys on retainer.

[NovaXpress]

From your own source . . .

 

"Judges use four factors in resolving fair use disputes, which are discussed in detail below. It's important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict."

 

The definitions of Fair Use are VERY FAR from being clear.

 

But here's good stuff from Wikipedia . . .

 

"United States law in effect since March 1, 1989 has made copyright the default for newly created works. For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion."

 

So there might be a loophole for 2600-era games! But it'll probably never go to court because both sides would spend more than they could gain.

Edited February 2, 2010 by NovaXpress

[Nukey Shay]

There is such a thing as "intellectual property". I can't see how company A could have an in-development (i.e. unreleased) program be stolen outright and sold by company B without company A being able to do anything about it...especially since many of them would include agreements with respective trademark owners. I think a little too much weight is being given to the "not released to the general public" footnote in this thread

Edited February 2, 2010 by Nukey Shay

[RevEng]

"Intellectual property" is a vague term and doesn't refer to any specific law. It mishmashes together copyright, trademark and patent law all together. When it's used by someone who should know better, like a lawyer or spokesperson, it's usually an attempt to pull the wool over someone's eyes.

 

But your private works are safe according to copyright law...

 

From a legal perspective they're not eligible for copyright protection anyway. One of the first qualifiers for copyright protection is that a product has to be released for the general public in order to be protected.

I've never heard of that before, and your own own Stanford link seems to disagree.

 

• In addition, you will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his expression.

 

A) You don't make a dime from your activities, because your intent is to preserve information.

B) You are not in competition with the company and they do not lose out on business because of your preservation, and most important:

C) You are interested only in furthering the historical record and education of the public at-large rather than making any money from point A.

A) if your site has a banner ad, you're in trouble here.

B) the company can claim the proto has market value, per retro collection re-releases. Companies are still licensing old ROMs.

C) depends on how technical-savy and sympathetic to your cause the man in the tall chair is.

 

Also remember that the judge has to weigh all 4 fair-use factors, and has the discretion to weigh one factor more than the other.

 

The loophole found by NovaXpress for old proto carts is an interesting one, and likely valid, with the exception in cases where the prototype has code common with other copyrighted titles. In distributing the proto you're distributing parts of the copyrighted titles. (the quantity of common code is a large factor here)

 

Now lets move on to trademark dilution/tarnishment/blurring. If the company really wants to mess with you they'll claim you are tarnishing their mark. The standard since the "Trademark Dilution Revision Act of 2006" is that the company only needs to show the your use of the mark is likely to cause dilution.

 

All of that said, I agree with the sentiment that most companies don't care, and archivists should carry on their good work until they get a C&D, after which it's up to them what to do.

 

Its good to know your legal rights and all, but in the end what a company does or doesn't do is motivated purely by profit. If they decide it helps their bottom-line by launching a long merit-less case against an archivist, they will. But I can't see them coming to that decision in most cases.

[Cebus Capucinis]

Curses! RevEng shows up again to disprove my legal ponderings! Actually I'm glad you showed up, my parner-in-not-crime. I was hoping you'd weigh in on this!

 

You have a good point on that banner ad, and I never thought of that! That would be considered a revenue source and would probably very easily destroy the argument for 'fair use' in this instance. That in and of itself would disprove the archivist's intent as there would be profit-generated through the banner ad. But, theoretically, with some fancy accountancy magic, you could claim that the revenue source was simply pumped back into the development of the site and therefore doesn't count as a "profit stream", just a cost-balancing measure....but I don't think it would hold up.

 

Isn't the scope for unpublished works not technically under the guise of copyright, however? I can understand how the scope for fair use is narrower because it is very fishy in the first place how individual A got hold of individual B's unpublished works legally (and I would think that the rule of thumb in this instance is that you should assume anyone who has an unpublished work didn't obtain it above-the-board), but that seems to be more-or-less due to IP and tarnishing, like what you and Nukey are saying. I can understand how they are protected, but I can't see how they're protected specifically under copyright. Maybe I'm thinking of the 'regsitered' thing NovaXpress posted....

 

From what I'm reading into NovaXpress's loophole any company that didn't register specifically for copyright would just have to attempt to immediately rectify it. If they really wanted to sue your butt (and like we're all agreeing here, it's not going to happen anyway) they could simply attempt to register for it first along the lines of RevEng's "re-release of collection" business idea and you'd likely be in trouble, right? If that's the case then all protos would be a problem, because you don't necessarily have to claim it's an incomplete piece of code, you can just say it's a really, really, really badly coded game?

 

Yeah, the quantity of code would be a pretty big factor in a proto, I would think. That would be a key for 'material difference' in a courtroom -- less code from something registered used, more material difference.

 

For the record I still hold on my opinion that a prototype isn't afforded the legal standing of copyright on anywhere near the same level as a public-release game. But once again we've never seen it specifically in a courtroom, but it would be interesting to find out how that would work.

[Cebus Capucinis]

Ah ha! Found it! I am wondering if I was thinking of the registration thing now, because you are absolutely right in that it is clearly stated in the Copyright Act that a work does not necessarily need to be published to be afforded protection. I might be playing really fast and loose with my definition of 'fixed in a tangible medium', which is pretty pathetic now that I think about it because a PCB and a cart is certainly tangible.....

 

The Copyright Act does state that publication allows for copyright registration for everything before 1989. Of course, after 1989 as soon as it's 'fixed in a tangible medium' -- which I think I should now use as a more concrete definition of creation -- it is eligible. Everything must "bear the notice or risk loss of copyright protection". It's possible that all these prototypes bear the copyright notice, and I'd actually think that they do, but if they do not, it's not copyright protected in its current form. Of course, all they have to do is skedaddle down to the local copyright office and try to register it and you're out of luck, but still, that's an interesting little ray of sunshine for proto archivists.

 

Thanks for that definition Nova! That clarifies it quite a bit!

 

EDIT: For the record I know these threads sometimes get really heated and for that I apologize, I just wanted to state for all that this is a little thing I'm really interested in (copyright law applying specifically to classic video games) and I just really enjoy talking about it and theorizing about how it would work. I'm not the smartest Legal Beagle about it, so I'm very likely wrong on a whole bunch of it (as RevEng can attest!) but I find the theories fascinating. If I am debating with someone please do not get upset or angry with me, I'm not trying to step on anyone's toes, just like talking about it! "I am not an attorney (yet), but I did stay at a Holiday Inn Express last night!"

 

Crap! RevEng has been writing for like half an hour now! I have to go to work! Hurry up! I want to read your post before I go to work! You have three minutes!

[RevEng]

Curses! RevEng shows up again to disprove my legal ponderings! Actually I'm glad you showed up, my parner-in-not-crime. I was hoping you'd weigh in on this!

Truthfully I hesitated at first, as I didn't want you to think I was picking on you. I'm glad to see there were no sour feelings over our first legal disagreement.

 

I had a nice long reply citing the "fixed in tangible form" part you just quoted in your second reply. Dang you for beating me to it!

 

For anyone interested in further reading along these lines, chilling effects has some very good FAQs on copyright and trademarks from the perspective of someone receiving a C&D.