Asking Permission for Homebrews?

[Cybearg]

Does one have to ask permission from the companies that manufactured retro consoles in order to sell new homebrews?

 

If so, how does one go about getting that permission for Atari consoles (since Atari is dead), consoles like the Colecovision or Intellivision or Odyssey, or more popular and potentially strict company-owned consoles like the Nintendo Entertainment System or Sega Master System?

[OldSchoolRetroGamer]

No I would not think it would be necessary. It is such a small niche market.

[+Random Terrain]

Just assume that you're going to get sued no matter what you do. The best you can do is to always keep your tooter oiled so it will be able to handle prison when the day comes.

[raindog]

While I'm not a lawyer (I don't think anyone here is), I'm pretty sure Atari sued Activision in 1980 because they'd made third-party games for the 2600, but were unsuccessful. So Atari games should be legal, though plenty of things homebrewers do probably infringe trademarks and/or copyrights in other ways.

 

From the NES on, though, console makers have used DRM (the lockout chip on the NES, code signing on the 7800 and most other consoles up to the present day) to prevent third-party developers from releasing games without getting permission and paying a cut. Atari (well, Tengen) got sued by Nintendo for releasing unlicensed NES games, and lost.

 

I'm not aware of any console maker suing anyone over systems they no longer sell, though. Sites like AtariAge exist because it's widely considered safe legally. Anyone can sue you for anything whether they really have a case or not -- as I discovered, legal threats don't have to come from the console makers, there are plenty of opportunistic douchebags out there, a few of whom are AtariAge users -- but at some point you have to decide what level of risk is acceptable to you to avoid being paralyzed by fear.

[Cybearg]

Have any homebrewers, especially for NES and later consoles, actually requested and received permission to create their games, with the exception of Halo 2600? I'd be inclined to think that a company like Nintendo would either ignore permission requests from homebrewers or just give out a blanket "NO" in order to avoid any potential trouble with someone releasing an NES porn game or something.

Edited June 18, 2013 by Cybearg

[+RevEng]

For any platform that doesn't have DRM in place, you don't have to ask permission. Its would be like asking Philips and Sony if you could sell your band's CDs at a gig.

 

You do have to be careful about using their trademarks. For example, some homebrewers like to add the Atari trademarks to their releases, and that's infringing on Atari's trademark.

 

For platforms with DRM, the best answer is "it depends". If you can get around the DRM without copying work you don't own, it should be legal. It wouldn't bring the DMCA into effect, because you'd only be making copies of your own work.

 

But as others have said, anyone can raise a meritless lawsuit. Your concern should be about whether or not your actions are likely to trigger legal action, even if you're in the legal right. You wouldn't lock yourself in a cage with a gorilla expecting him to play fair, and corporations have less ethics than a gorilla.

 

Also, don't take legal advice from strangers on the Internet.

[+Gemintronic]

I'd take a long, hard look at the packaging for Action 52 and Tengen games. Especially the recognition of trademarks and disclaimer of endorsement.

 

If your game can be construed as diluting or weakening their brand they must sue. Thus the whole Scrolls vs. Elder Scrolls drama.

[Algus]

Not actually breaking the law hasn't been an impediment to lawsuits unfortunately. Squaresoft has done several C&Ds over the years to ROM hackers and homebrewers that were working on projects using their properties. The good news is that most companies don't seem to be as fan-hating as Square is. I'm surprised that more NES homebrewers/repro builders aren't more nervous about tossing around things like the Nintendo logo and seal on their mockup boxes and custom labels though.

 

To me, the thing to do would be to remain respectful of the big guy's trademarks and assets while working on your project and if you get C&D'd, well might as well comply since you probably can't afford to fight the suit regardless of whether it has merit. Then quietly "leak" the project when you finish it anyway, har har!

[raindog]

if you get C&D'd, well might as well comply since you probably can't afford to fight the suit regardless of whether it has merit. Then quietly "leak" the project when you finish it anyway, har har!

 

The situations where fan projects get C&D'd and subsequently disappear are perhaps the single best example of why it's important to put your source code out there *before* your project receives wide notice. Even if you can't finish it, perhaps someone else in a more flexible jurisdiction can.

[+Gemintronic]

I think the threat of bad publicity and eventual leak of "infringing" projects should be just as scary to big business as a C&D is to a hobby developer. This sue/threat first business has to stop. I'm looking at you Blizzard.

[Cybearg]

I'm looking at you Blizzard.

 

And you, Hasbro.

 

http://www.youtube.com/watch?v=-C573lG9Efo

[Thomas Jentzsch]

Have any homebrewers ... actually requested and received permission to create their games.

Andrew and I did get an official license from FSS to produce Boulder Dash for the Atari 2600.

Edited June 18, 2013 by Thomas Jentzsch

[raindog]

Andrew and I did get an official license from FSS to produce Boulder Dash for the Atari 2600.

There have been officially sanctioned remakes of other games, too (like Jumpman), but I thought Cybearg was talking about asking the manufacturers of discontinued consoles for permission, not the owners of individual game trademarks.

[JohnPCAE]

I think the threat of bad publicity and eventual leak of "infringing" projects should be just as scary to big business as a C&D is to a hobby developer. This sue/threat first business has to stop. I'm looking at you Blizzard.

 

Hear hear. Though I've never used it (I never really cared for multiplayer/deathmatch games), I haven't forgotten their treatment of the bnetd project and I've never bought a Blizzard product since.

[DanOliver]

For registered trademarks you can search the US Federal registered trademarks database, click the "Trademark search" link. Works pretty darn good. But popular trademarks like "Atari" get more complex because there are many variations, But even then it doesn't take long to see the "Atari" trademark is owned and is active.

 

That's for a registered trademarks were people send in a form every few years along with a fee to protect their property. They can use the ® symbol for registered trademarks.

 

Common law trademarks use the ™ symbol. Anyone can use that, no registration, no fees. As long as you are actively using that trademark, assuming it doesn't infringe on another person's property, you will own that trademark. However, you must defend it. Registering the trademark just gives you more leverage in court.

 

Copyright would apply to the computer code. It is similar to trademark in that you do not have to register anything. You don't even have to use a © symbol, but that makes it a lot easier to defend. A copyright can be registered but that's mainly a way to show a specific date of copyright. Like if I write a game I have an automatic copyright. But if someone got my game, removed my copyright notice and started passing it around the web I'd have a harder time proving which came first, my copyrighted version or the bootlegged copy. If I sent in a registered copy of the game I'd have a better claim as long as that happened before the bootleg appeared.

 

The other big difference is that copyrights last a really long time, 70+ years I think, maybe 150+. And the owner doesn't have to do anything to keep their rights. So every video game computer code is owned by the author unless explicitly placed into the public domain by them. Even taking small segments of code would be stealing. Whether or not you get caught, or whether or not the owner cares is a different matter. If I steal your lawn furniture no one may catch me, but it's still stealing. Or the owner may have seen me stealing the furniture but not care because it was crappy. Still stealing. If I knock on the owner's door and get permission it's not stealing.

 

Example

I've been able to trade mark VentureVision™ because the registered trademark was abandoned almost 30 years ago and hasn't been used actively since. Same with Rescue Terra I™. However I can't use any of the computer code inside Rescue Terra I™ because that's copyrighted and still protected, but the name was available for trademark.

 

Respect vs Law

I've made my living creating software, so I have a very different perspective from people who think companies or people who defend their ownership are evil greedy bastards. Thieves generally have that opinion but evil greedy bastards are often trying to protect fans as well as their own rights because they're connected. No artist can afford to create over a lifetime if everything they do is stolen. Real fans understand this.

 

If a person ever wants to work in any creative field I can tell you any type of plagiarism is not looked at favorably. There's a kind of creative peaking order to things:

 

- The more original the piece the more highly regarded because you're really taking a chance.

 

- Game inspired by another game. Virtually all games are inspired by other game, but there are lines that shouldn't be crossed.

 

- Port. Can be a great port, but regarded as a programming feat, not a very creative endeavor. Little to do with game design.

 

- Rip off. Can range from the really bad like ripping off a game to sell and cash in on another person's effort, to the not so bad fan tribute in which the author might be flattered. I think honesty goes a long way. Ripping someone off and not at least giving them credit is pretty low.

 

- Hack. Has lots of meanings, but in this context to me this means using another person's code and changing a few things. This can also range from completely dishonest to the more honest fan giving away a hack with more levels.

 

Not a clear and certain topic. Each case is different. Some care should be exercised imo because once whatever you do will be out there and you can't take it back. Forget about court, consider your reputation, and what you will think of yourself.

[raindog]

I've made my living creating software too. Have been for 24 years now, 27 if you count Commodore shareware funding my teenage porn habit as "a living". Making a clone of someone else's software isn't stealing their lawn furniture. It's taking a picture of their lawn furniture and saying "Check out my new lawn furniture!" It's a dick move if they're still trying to make money from it, could infringe their rights in some ways you mentioned and others you didn't, but it's never been the same thing as taking a physical object from someone, and it never will be. The butthurt might feel the same, but it's just butthurt.

 

If you can't make a living selling something that can be copied, it's time to find another line of work. I sell a service, not a product, myself.

 

As for the respect angle, you're talking to fans of a console where well over 90% of the games were clones of something else, usually poorly done, and whose manufacturer sued a competitor whose innovative variation on the maze genre was better than their own crappy officially licensed Pac-Man port, rather than competing on quality. The respect ship sailed 30 years ago.

 

I genuinely wouldn't mind if Nintendo went out of business tomorrow, their trademarks diluted to nothingness, their assets and legal teams somehow vaporizing, because it'd free up thousands of developers who have been dying to do their own take on Mario or Zelda but were afraid of getting sued. Most would be crap, but I can guarantee I'd like some of them better than Skyward Sword or NSMB. We'll never know, though, because trademarks are forever if maintained, and copyright effectively is too.

 

Maybe for you, the remix/demake culture is abusive or morally corrupt. To me, copyright as currently constructed is what's been corrupted. But the ones who corrupted it are the ones with the lawyers, and can bankrupt someone who steps on their toes even if a court finds there's been no harm done. Trademarks are abused by the holders about as much as Chinatown electronics sellers; just ask the owners of any restaurant that had "McDonald" or "MacDonald" in the name, even the ones that existed before 1955. And that's why we have these discussions about legality, not ethics.

 

None of which is even on-topic because the OP asked if he needs "permission from the companies that manufactured retro consoles" to make homebrews for them.

[+Gemintronic]

I agree with Dan and raindog. Developers can get myopic about their own products but I don't see that happening here. Unless I'm not reading enough into what "lines that shouldn't be crossed" is when making a similar game.

 

I developed a PC de-make of Super Pitfall that lowered the resolution and made the sound in monophonic tones worse than the TRS-80. Game mechanics were very similar. Art, sound and code were all mine. Is that disrespectful and even IP violating?

 

My Game:

 

Original Tandy:

[DanOliver]

I've made my living creating software too. Have been for 24 years now, 27 if you count Commodore shareware funding my teenage porn habit as "a living". Making a clone of someone else's software isn't stealing their lawn furniture. It's taking a picture of their lawn furniture and saying "Check out my new lawn furniture!" It's a dick move if they're still trying to make money from it, could infringe their rights in some ways you mentioned and others you didn't, but it's never been the same thing as taking a physical object from someone, and it never will be. The butthurt might feel the same, but it's just butthurt.

So someone writes a game, say 1000 hours of work, puts it up for sale you think it's OK to buy one and duplicate a million copies to sell or give away? To me that's not cool. It's also against the law not that matters to these types.

 

I too have stayed away from writing software that people would just steal. And I think that's true for any programmer that makes a living at it. Doesn't really bother me any, plenty of software to write in the world. And I guess users will never know about the potential products they'll never get or care much that they have to pay more for the products they do buy to make make for the stealing. I think it's crappy, but yeah, as a programmer i can just stay away from those markets. No skin off my nose. The users are the ones paying the price.

[raindog]

So now we've gone from whether it's legal to create homebrew games for long-discontinued consoles, to whether knockoff games are ethical, to a piracy discussion?

 

I'm done.

[+Gemintronic]

Hope my question wasn't too incendiary. I only asked because the main topic seemed relatively well answered. Only if you must break DRM should you be worried. We're talking CIC chips on NES and TMSS for Sega Genesis.

[DanOliver]

To me the answer is easy, I try not to break the law. Just makes my life easier. I personally don't like any DRM, but things get too messy for me if I get into justifying by telling myself doing anything illegal is actually OK. Starts to get hard to draw lines.

 

If it's done on your personal machine for your own use I don't think you'd be breaking any law.

 

If the question is what the risk of legal problems for distributing products I assume it's pretty low, like zero.

 

If the question is risk to a programmer's rep I think in some circles your rep would grow, in others it would diminish. Has to be a personal call.

 

For some reason how I choose to live my life upsets another people. Strange world.

Edited June 29, 2013 by DanOliver

[+Gemintronic]

So, since gameplay cannot be protected, does my example game above qualify as not crossing the line to you Mr. Oliver?

[DanOliver]

It's pretty much a full time job worrying about myself. What other people do is not really any of my business.

 

For myself here's how I look at it...My work is my portfolio. It's how I get the next cool project. For my first programming job I could show an Asteroids ripoff on an Apple II written in BASIC. Back then that was good enough to get me a job. That allowed me to create Space Cavern, a little more original. With that I could convince partners to start a company that allowed me to try and do more original works. That got me into Atari. And on and on. That's been fun.

 

What if on Space Cavern I'd done a complete Demon Attack ripoff? Would I've still been able to been a part of VentureVision? Maybe, maybe not. What if my ripoff also stole some Demon Attack code? I certainly could have done that, Apollo sure wouldn't have checked. Maybe Imagic sues Apollo and puts them out of business. You think I'd ever have a chance to work on interesting projects again? Maybe, maybe not. I just don't see the up side to the risk.

 

Everyone has to find their own path.

 

I'll say this too...when we do these projects it never seems like that big a deal. But these things can stick around a long time. Many times I've been in interviews or working with people and they say "Hey, you're the dude that did..". At that moment that obscure dumb little app carries more weight than anything else as far as whether you get the next cool project or not.

 

So for me, I'd stay away from cracking any DRM. There are lots of other machines to write for. Plus I wouldn't want to support such a machine even if it is 100 years old. That doesn't mean I think every single person in every single case who has crossed some kind of line and they should burn in hell. That's their business.

 

The only times I've ever had to judge other people was when hiring people. Faced with two programmers, one having done original work and one doing ripoff after ripoff and proud of it, I'm hiring the original thinker. It's more fun and more profitable potentially. I'll take that over a degree or even experience. But of course that's because of the industry I've worked in. Plenty of other industries where degrees and experience are more important.