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ColecoVision Homebrews & IP Rights Discussion

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But I'm trying to understand it in this specific case to see if a homebrewer and an unauthorized publisher are both pirates or only one of them to see if I think you are right, Cardildo is right, or if it is somewhere in between. And not only in the legal sense but if actual real stealing is objectively occurring.

 

I can't make it any more clearer than what is written on the US Government Copyright page in regards to derivative works that I already posted:

Screen Shot 2017-05-23 at 08.13.38.jpg

I feel like at this point we're just going around in circles, kind of how I am with Coleco about the Facebook retractions. So let's try not to be "that person" deal? ;)

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Different in the specific details but I don't see how it is fundamentally different. Your Pac-Man argument seems to have circular reasoning in it to me because you are arguing for copyright because of copyright.

If you don't understand the concept of copyright, you're unlikely to learn it from me, but here goes:

 

This is the arcade marquee for Kung Fu Master.

post-2410-0-79444800-1495547109_thumb.jpg

 

See this bit? It means, "You didn't make this."

post-2410-0-90055700-1495547161.jpg

 

IREM made it. Then they licensed it to Data East. They didn't make it, but they paid to use it -- exclusively. Like Atari did with Namco's Pac-Man.

 

Red dress lady just bought an item, but not an exclusive commercial license to be the only one to wear it.

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No, if someone wants to remake Pac-man, Namco or whoever owns Pacman, cannot claim ownership of that code. Now if someone hacked Namcos Pac-man without permission Namco maybe free to use that hack (a derivative) because there may not be copyright protection on the hack.

 

I think remakes without permission are okay because the numbers are so small, technically illegal so you have to be carefull. Best to at least use a different name and avoid trademark violations in promoting. I think hacks are okay too, but I am definitely uncomfortable with people selling them when it includes someone else's code, regardless of how small the numbers are.

Edited by mr_me
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If you don't understand the concept of copyright, you're unlikely to learn it from me, but here goes:

 

This is part of the problem: People who don't understand the concept. In my brain I get it and I know how it all works. I have also worked with it day-to-day professionally for decades. I'm pretty damn sure what I posted isn't "wrong" but I also don't know how to keep explaining it to someone who doesn't understand it like I do. So for those reasons I'm sort of out of this conversation for lack of being able to even comprehend how someone else can't understand it in order to better explain it.

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But I'm trying to understand it in this specific case to see if a homebrewer and an unauthorized publisher are both pirates or only one of them to see if I think you are right, Cardildo is right, or if it is somewhere in between. And not only in the legal sense but if actual real stealing is objectively occurring.

In this case the unauthorised publisher is a pirate. The homebrewer is violating some copyright IP and possibly some trademarks [assuming the code is original]. They are both stealing but one is a much bigger thief than the other. Stealing a little is one thing, people use others ideas all the time, some are protected by copyright some are not. But outright piracy is something else.

 

Edit: Actually, if this is about Kung Fu Master and it is a true "port", ie. mostly a copy of the original MSX code than someone could argue piracy by the homebrewer.

Edited by mr_me

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You have copyright laws on one side, but in addition you have Patents Law above that.

 

For instance Konami could have patented the way they are doing their scrolling in their games. If it is the case, even if you create your own game with your own routines and accidentally you use the same way of doing a scrolling , you could be sued! :?

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Yes patents are a way to protect ideas that are not copyrightable. But patents only last 20 years. And a lot of patents that are issued are incorrect and can be thrown out in court.

 

Magnavox actually had a patent on the object interaction in video games. Atari, Mattel, Activision all paid.

Edited by mr_me
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Sometimes there are convoluting factors. Compare VCRs and Napster. Academically, they are exactly the same and have the same academic potential to undo a business (movies in the former, music, etc. in the latter). Motion picture corporations fought the VCR soon after it became popular, but they lost, more-or-less. Music corporations fought Napster, but they won, more-or-less. Mostly it came down to two things.

1. The actual damage versus the potential damage the device would/could cause to the plaintiff. VCRs were not practically threatening motion picture corporations stability, although profit might be affected slightly. Napster was causing albums that were almost released to be dropped because millions of people were getting them from a loose demo that was uploaded.

2. The power of the plaintiff and defendent. For the VCR it was large motion picture corporations versus large electronics corporations, for Napster, it was large music corporations versus a few individuals.

 

In both cases, the parties could've continued to fight the primary battle, but I think the motion picture industry chose to fight for smaller copyright legislation rather than wipe out the VCR and in the case of Napster I'm pretty sure the defendants just ran out of money (same for Aimster) and persued other business ventures.

 

If a title exists for Playstation 4 and someone makes a clone and sells it, it may be shown to severely affect the health of the plaintiffs company (this "might" be also true to a lesser extent for "abandoned" ColecoVision). If a title exists for the "abaondoned" Intellivision and someone makes a clone for "abandoned" Colecovision, if it was unlikely that game would have been ported otherwise, then the actual damage is minimal compared to the potential damage if they were seriously persuing it. Also, is the plaintiff likely to be a serious marketer of such games in the first place.

 

There are a lot of facets to such matters that include both rule of law (or several conflicting laws) and common sense and, therefore, some uncertainty.

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I feel like the last two pages have gone in circles re-discussing what was already stated here:

Two things to take away from this:

 

1. The homebrewer is putting themselves at risk by re-creating a licensed game. But it is up to the original license holder and ONLY the original license holder to make the decision to allow or to stop the sale of that game.

 

2. The homebrewer owns the rights to the game they created, even if they do not own the IP. If someone else comes along and publishes the same game that the homebrewer has created, that is STEALING aka "pirating."

To simplify using Kung Fu Master as a specific example:

 

1. CollectorVision is at risk of Irem telling them they cannot publish the game because Irem owns license to the original IP. It is up to Irem to decide if they care or not care if CollectorVision publishes the game. It is NOT up to Coleco to tell them what they can publish, Coleco can however request they do not use their logo on any of the published assets.

 

2. CollectorVision has rights to their version of the game. When a pirate like Juice takes that code and sells it without permission from CollectorVision, then CollectorVision also has the right to tell Juice he cannot sell that game.

 

Now that I've simplified that, let me confuse the issue even more! Technically Mass Tael owns the rights to the MSX version of Kung Fu Master. So it's questionable if it would be Mass Tael or Irem who would have to care enough to tell CollectorVision not to publish the game.

 

But all that being said, end of the day, CollectorVision has rights to the code they've written and if someone like Juice steals it and sells it, that makes him the "pirate" in this scenario. And absolutely CollectorVision has every right to protect that.

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You have copyright laws on one side, but in addition you have Patents Law above that.

 

For instance Konami could have patented the way they are doing their scrolling in their games. If it is the case, even if you create your own game with your own routines and accidentally you use the same way of doing a scrolling , you could be sued! :?

Unless you can prove prior art or obvious functionality -- and if you have the means and time to deal with it in court.

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No, if someone wants to remake Pac-man, Namco or whoever owns Pacman, cannot claim ownership of that code. Now if someone hacked Namcos Pac-man without permission Namco maybe free to use that hack (a derivative) because there may not be copyright protection on the hack.

 

I think remakes without permission are okay because the numbers are so small, technically illegal so you have to be carefull. Best to at least use a different name and avoid trademark violations in promoting. I think hacks are okay too, but I am definitely uncomfortable with people selling them when it includes someone else's code, regardless of how small the numbers are.

 

 

This ^

 

"Kung-Fu Master" is an original game, protected by copyright. There was an Atari VCS port, licensed by Activision.

 

b_KungFuMaster_back.jpg

 

I think anyone could make a game in which you run to the left and kick all the dudes. You could probably get away with calling it something like "Kung Pow Master," but that's not what Collectorvision did here:

 

post-2410-0-24115400-1495553584.png

 

They say right on the box, it's like the real arcade game, and it has a picture of the cabinet, as well as an acknowledgment of Data East. It does NOT say it was produced with or without Data East's permission.

 

It's a brilliant little forgery, it's selling in small amounts to dedicated fans for $55 a cartridge. It's styled after the ColecoVision packaging of the time (which Cardillo may or may not own). The funny thing is, it won't even work on a stock ColecoVision, not without the Super Game Module, which is compatible with but not made by Coleco. I don't know how many of these were made, or how many people would actually buy this, but I imagine it's not a lot.

 

If I were Cardillo, I'd love the halo effect of this neat thing that adds way more value to my old dinosaur brand -- and worried that it hurt my reputation because it is pretty blatant copyright infringement. Before bunching up my panties about it though, I would make darn sure I wasn't doing the same thing, using Nintendo's Donkey Kong for personal gain.

 

Cardillo isn't wrong ...

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I feel like the last two pages have gone in circles re-discussing what was already stated here:

 

To simplify using Kung Fu Master as a specific example:

 

1. CollectorVision is at risk of Irem telling them they cannot publish the game because Irem owns license to the original IP. It is up to Irem to decide if they care or not care if CollectorVision publishes the game. It is NOT up to Coleco to tell them what they can publish, Coleco can however request they do not use their logo on any of the published assets.

 

2. CollectorVision has rights to their version of the game. When a pirate like Juice takes that code and sells it without permission from CollectorVision, then CollectorVision also has the right to tell Juice he cannot sell that game.

 

Now that I've simplified that, let me confuse the issue even more! Technically Mass Tael owns the rights to the MSX version of Kung Fu Master. So it's questionable if it would be Mass Tael or Irem who would have to care enough to tell CollectorVision not to publish the game.

 

But all that being said, end of the day, CollectorVision has rights to the code they've written and if someone like Juice steals it and sells it, that makes him the "pirate" in this scenario. And absolutely CollectorVision has every right to protect that.

I don't know what's involved in making an MSX game work with the enhanced CV. But if it's academic stuff ie. Mapping this to that, and some straightforward code than that work may not be copyrightable. That is even if it takes alot of work; as blood, sweat, and tears are not copyrightable. Morally, if it was alot of work people may feel otherwise.

 

Edit: Further, even if the new works is enough to be copyrightable it is still a derivative of the MSX program. ("A new version of an existing computer program"). And because it was done unlawfully, without permission, there would be no copyright protection on the additional work, [at least in the US]. Again, morally people may feel otherwise.

Edited by mr_me

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My opinion is to let the big brand names do their own thing. I'd rather develop new games (and buy new hardware) for enthusiast made Coleco compatible systems.

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I've noticed that homebrewers very rarely deal with original IP... they typically make ports of old arcade games or other existing properties, and they just as typically don't get the legal rights to these properties. I'm guessing that whoever made the ColecoVision port of Kung Fu Master didn't secure the license from Irem (or its successor), so their product is technically illegal.

 

Here's the thing, though. It's illegal for him to make an unlicensed port of Kung Fu Master. It may even be illegal for him to use the ColecoVision logo on the front of the box. It's not illegal for him to make software for the ColecoVision hardware, since the patent has almost certainly expired. Chris Cardillo seems to be under the impression that he can force ColecoVision game designers to purchase a license to make software for the system, but they're not legally obligated to do this. They may have to add a disclaimer on the title screen to stress that they're not affiliated with Coleco, and they'll probably have to remove the official ColecoVision logo from the box, but they can still make the games. They don't have to pay Cardillo a cent for the privilege.

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Im pretty sure, original IP owner can come and claim rights to the ports done by someone else. But Colecovision is a dead platform they are not interested in. But I am sure it could be done.

 

Unfortunately project like that (Space invaders port, Kung Fu port, etc) are piracy and are stealing; and even though they might be cool, I always suggest homebrew developers against it. Stick to new content! We've past the ports, hacks, repros; the homebrew scene has to evolve and moving away from those kind of projects will be the first step.

 

I feel strongly the same way. I'm fine with ports of classic games if someone wants to do that, and I know most people try to contact the rights holder to get permission, even though no one gets a response as they are small fry. And it's really not going to hurt to anyone in the end if it's a long dead property.

 

And if the game has never gotten a release on a home system, by all means, port it over.

 

But do we REALLY need another Pac-Man release when there are 20 consoles we can already play it on from official releases BITD?

 

I game almost totally through emulation, so I don't have a horse in this race, I'd just like to see more original game and properties. The trend seems to be heading that way though.

 

It's funny that the 'porn games' that Coleco said they started this dispute over are all (I believe) original games. :ponder:

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I've noticed that homebrewers very rarely deal with original IP... they typically make ports of old arcade games or other existing properties, and they just as typically don't get the legal rights to these properties. I'm guessing that whoever made the ColecoVision port of Kung Fu Master didn't secure the license from Irem (or its successor), so their product is technically illegal.

 

Here's the thing, though. It's illegal for him to make an unlicensed port of Kung Fu Master. It may even be illegal for him to use the ColecoVision logo on the front of the box. It's not illegal for him to make software for the ColecoVision hardware, since the patent has almost certainly expired. Chris Cardillo seems to be under the impression that he can force ColecoVision game designers to purchase a license to make software for the system, but they're not legally obligated to do this. They may have to add a disclaimer on the title screen to stress that they're not affiliated with Coleco, and they'll probably have to remove the official ColecoVision logo from the box, but they can still make the games. They don't have to pay Cardillo a cent for the privilege.

 

Right there is the crux of the issue, me thinks. The 'adult games' was just a smoke screen.

 

I still can't figure out why Chris is going after a fan site instead of the publisher, though, even after being told numerous times he's barking up the wrong tree.

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This is part of the problem: People who don't understand the concept. In my brain I get it and I know how it all works. I have also worked with it day-to-day professionally for decades. I'm pretty damn sure what I posted isn't "wrong" but I also don't know how to keep explaining it to someone who doesn't understand it like I do. So for those reasons I'm sort of out of this conversation for lack of being able to even comprehend how someone else can't understand it in order to better explain it.

 

Maybe this will help you comprehend what I'm having trouble understanding. The guys that worked on the homebrew port of Boulder Dash for the Atari 2600 had to work with First Star Software to come to an agreement about if they could even make it at all, how much in royalties they have to pay, how many copies they are allowed to produce, etc. because they wanted to keep everything legit and not commit copyright infringement(be pirates). But the explanations you've been providing makes it seem like they went through all of that for nothing because they could produce as many cartridges as they want without even contacting First Star Software and wouldn't be considered pirates even though First Star Software owns the rights to Boulder Dash. But then if someone else started making cartridges for Boulder Dash then only that person would be a pirate. That doesn't make sense to me because it seems like if First Star Software isn't involved then both the original ports and copies of them would be examples of piracy. And if the homebrew community accepts the first example of piracy then it seems inconsistent and hypocritical not to accept the second example as well as all other possible examples of piracy.

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One thing I really like about the TI-99/4A community is that we've not had any noticeable problems or grief with all this legal stuff, or people trying to assert control over the actions or contributions of others. In fact most of the games, even the new ones, have been free to download and use because the programmers do it as a labor of love for the platform.

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If someone programs a version of Boulderdash without First Star's permission they would be in violation of First Star's copyrights. But it is not piracy. If someone makes unauthorised copies of someone else's software that would be piracy. Pretty sure this has been explained already.

Edited by mr_me
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If someone programs a version of Boulderdash without First Star's permission they would be in violation of First Star's copyrights. But it is not piracy. If someone makes unauthorised copies of someone else's software that would be piracy. Pretty sure this has been explained already.

 

Piracy is another word for copyright infringement. By definition, you can't violate a copyright without committing piracy:

 

 

Copyright or patent infringement: software piracy.

 

the unauthorized use or appropriation of patented or copyrighted material, ideas, etc

 

the unauthorized reproduction or use of copyrighted material, a patented invention, a trademarked product, etc.

 

the act of plagiarizing; taking someone's words or ideas as if they were your own

 

a violation of the rights secured by a copyright

 

illegal copying, bootlegging, plagiarism, copyright infringement, illegal reproduction Video piracy is a criminal offence.

 

a person who does something without legal right, eg publishes someone else's work as his own or broadcasts without a licence. a pirate radio-station.

 

to publish, broadcast etc without the legal right to do so.

 

 

So, piracy is a blanket term that encompasses all acts of violating one's intellectual property rights.

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Perhaps. But addressing your question, in one case someone is spending hundreds if not thousands of hours of work programming another version of Boulderdash. In doing so they infringed on some graphics/music copyright. I don't call that piracy.

 

In the second case someone spends a few minutes making a copy of a complete software works. I call this piracy.

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I still can't figure out why Chris is going after a fan site instead of the publisher, though, even after being told numerous times he's barking up the wrong tree.

Because he has a deal in place with CollectorVision to buy a large quantity of the upcoming CV Sydney Hunter release that he is selling through his ColecoExpo website and will have on hand at the Expo as well.

 

No ill-will directed at CollectorVision with this comment, the fault is 100% on Chris for this whole fiasco and I wonder how this might affect the turnout for his Expo. If you are reading this Chris, there is a right way and a wrong way to go about doing business and if it hasn't dawned on you yet what side of the fence you fall on, the turnout for your Expo may/should answer that.

Edited by NIAD
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Heh, we are only 2050 topics and 83,001 posts behind the Intellivision Forum. Me thinks these threads dealing with all this should help close the gap rather quickly.

 

Look out Rev!!!

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We've past the ports, hacks, repros; the homebrew scene has to evolve and moving away from those kind of projects will be the first step.

See also Thor's Quest versus Classic Kong for a good example of this. Thor's Quest shares identical gameplay to Classic Kong, and similar gameplay to a certain Nintendo IP. However, all of the graphics and audio related to Nintendo's IP have been stripped out. So Classic Kong originally would have infringed on Nintendo's IP, whereas Thor's Quest did not. The code used to build Classic Kong entirely belonged to BubbleZap, but not the graphics and audio, which shared a likeness of the original IP. So the codebase was used to create a non-infringing game based on new IP, available on Piko's website, which does not borrow on the likeness of the original IP. Still, the actual gameplay between the two versions is identical.

 

Video of Thor's Quest:

 

Gameplay footage of Classic Kong:

 

Homebrew developers can take a page from this when copying arcade IP, by changing the characters and audio to avoid infringement and potential C&D letters from rights holders. Gameplay mechanics cannot be copyrighted, but graphics and audio can.

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You have copyright laws on one side, but in addition you have Patents Law above that.

 

For instance Konami could have patented the way they are doing their scrolling in their games. If it is the case, even if you create your own game with your own routines and accidentally you use the same way of doing a scrolling , you could be sued! :?

All patents for retro game consoles (up to just prior to N64) are defunct now, which is why we see clone consoles everywhere. Nintendo sued Generation NEX in 2004 and lost because the patents to the Famicom dated back to 1983, which had already expired at the time of the lawsuit. Then Yobo and everyone else were free to make Famicom and NES based clone systems. Genesis and SNES clones came later.

 

Only very recently we have near exact replica N64 controller replacements from Yobo and Hyperkin, thanks to the controller portion of the N64 patents now being expired. Certain other aspects of N64 hardware are still under patent which is why we haven't seen full clones of it yet, that and the hardware complexity being much more sophisticated than 8-bit and 16-bit hardware.

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