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Mr Robot

I think the Atari OS ROMs are PD, here's why.

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I'm going to assert that distribution of the Atari System ROMS is legal and that Atari do not own any copyright on them. I'm looking for peer review of my research here.

The ROMS I'm talking about are the AtariOSA, AtariOSB, AtariXL, BASICXL, and 5200 roms.
These programs were written and published between 1978 and 1989, that is a period in time when copyright law required there to be a copyright notice on a work for it to be protected.
Curt Vendel says that the source listings all have copyright notices on them.
  • That is not acceptable however as the notice must be:-
"affixed on publicly distributed copies and phonorecords in such a manner and in a location that provides reasonable notice to the public of the claim to copyright.
In all cases, the acceptability of a notice depends upon its being permanently legible to an ordinary user of the work and affixed to the copies in such manner and position that it is not concealed from view upon reasonable examination." --- 2206.1
  • There is a copyright notice printed onto the rom chips but this is not acceptable either because:-
"A concealed notice that is permanently covered so that it cannot be seen without damaging or tearing the work apart is unacceptable. The U.S. Copyright Office considers such works to be published without notice. To be acceptable, a notice must be legible to an ordinary user of the work under normal conditions of use and affixed to the copies in such a manner and position that when affixed it is not concealed from view upon reasonable examination by the Office or the ordinary user." --- 2206.7
  • There is no copyright notice within the ROM code.
  • There is no copyright notice on the label in the bottom of the Atari machines.
I searched the copyright office for Atari copyrights and only found a regestration for the 65XE OS and that was registered in 1990 (TX0002705413 / 1990-01-09).
From BitLaw...
"Copyright registration is the process by which a formal claim of copyright is filed on a work with the U.S. Copyright Office. Registration is not a condition of copyright protection, although it is a prerequisite for filing a copyright lawsuit on U.S. origin works. However, it is possible to file a lawsuit on a previously unregistered work merely by filing an application for registration immediately prior to initiating the lawsuit.
Even though registration is not a requirement for copyright protection, the Copyright Act does provides several inducements or advantages to encourage copyright owners to file for copyright registration. Among these advantages are the following:
If registration is made within 3 months after publication of the work, it is possible to collect statutory damages and attorney's fees in infringement actions (otherwise only actual damages may be collected);
If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate;
Registration establishes a public record of the copyright claim and allows for the recordation of transfers of ownership of the copyright; and
Registration allows the copyright to be used to prevent the importation of infringing copies."
Aside from this, the ROMS were distributed with PC Xformer, The current copy from emulator, inc. (v3.80) still has the roms in it, The About box says the roms are used with permission from Atari and I found:-
"Reprinted From MICHIGAN ATARI
MAGAZINE by permission.
By John Nagy
DAREK MIHOCKA's ATARI
800-in-an-ST-Program WILL BE RELEASED
with ATARI's approval!
NEIL HARRIS, spokesman for ATARI, has
agreed (in a public message on the
GEnie ATARI SIG) to allow both USE
and DISTRIBUTION of the ATARI code
within Darek's emulator. The
permission is contingent on Darek's
PUBLISHING the SOURCE CODE for his
emulator, so that other programmers
may be able to add their efforts......."
This is mention of ST Xformer, which became PC Xformer.
Aside from this, Atari released the ROMS into the public domain in the Translator disk for the XL.
I tried emailing the current Atari, Inc. asking them to formally release the roms into the public domain but I've had no reply. I think from the above, they already have and we can all stop dancing around the how or where of obtaining of these ROMS.
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Does this even really matter ?

No company has ever gone after any individual for pirating roms. In fact I'm only aware of Cloanto suing and that contracted company that worked on AmigaOS 4.X.

Just pirate old systems and no one will care unless you pirate the latest big money making systems.

Edited by thetick1
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Even if you don't think anyone will be coming after you, distribution is risky at least for people based in the US or with US assets as the quota litis based legal system might still lead to an attorney talking a future owner of Atari into seeking money by suing retro-users. If they do a structured argument like the one laid out above might help in stopping any such action.

 

While I do believe the claim is solid and second your argumentation, I try to play the devil's advocate:

 

One possible pitfall I could imagine is the "normal user" as one could argue that someone able to copy the ROM is not a "normal user" and a more strict standard should be applied.

 

The translator disk would cover the 400/800 OS only. AFAIK it doesn't contain a "modern" OS.

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Would the manuals count?

 

Of related interest (I'm on mobile, so I can't fully research if it still applies today to works created in that period or before): the Computer Software Copyright Act of 1980. It seems to give permission to emulate what you already own, which is pretty cool.

 

I'm not going to poo on this thread, because this is a good topic for us to understand and hold in our back pocket in case a future Atari owner decides to monetize old works and decides to take issue with emulation and rights to original code, even if it seems unlikely today.

 

PS: I wonder if they even have any real paper trail which documents ownership, outside of public belief.

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"There is a copyright notice printed onto the rom chips but this is not acceptable either because:-"

 

Your park bench law degree has failed you. Just because

you can't see it without using a hex editor on the

code to plainly see it there means nothing at all.

That is standard state of the art practice and that

copyright notice in there trumps everything.

 

Their discussion of concealment involves printing it

on the paper behind the one glued to the front cover

of a bound book for example. One would need to take

apart the entire book to find such a thing and this

act of obfuscation negates the claim of copyright in

itself. Using a hex editor to read it is what one

would always have to do to as a matter of course, so

this is NOT the same kind of "concealment". It's a

legal term with non-standard meanings outside the

common man's use, they are speaking to obfuscated

concealment done purposely to drag offenders thru

the court system.

 

Copyright in code is valid and that's why it's there.

You can not get around this one.

 

Your only chance would be to prove that they did not

follow up and pay for copyright protection. But

corporations are given a very wide berth since they

have so many paid for copyrights, even with proof of

non-payment, the judge is likely to allow it protection.

And ALL of the code in similar machines - if it says

 

copyright Atari and dated.

 

And it all does, you have no legs to stand on.

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My main gig these days (and for the past couple decades ;) ) is law. Copyright law is a VERY specialized field, especially in the U.S., where Congress has retroactively amended the copyright act many times over the years, granting greater and greater protections to rights holders.

 

Your best bet, in my personal opinion is to just keep your own ideas of what is and is not protected by U.S. copyright law to yourself and do not hold yourself out as some kind of authority based on a few hours of internet research (and this is NOT to be construed as legal advice since I'm probably not licensed in your jurisdiction, and even if I am, I am disclaiming any attorney-client privilege or relationship - so there! :P )

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I tried emailing the current Atari, Inc. asking them to formally release the roms into the public domain but I've had no reply. I think from the above, they already have and we can all stop dancing around the how or where of obtaining of these ROMS.

 

Oh, no, that is not a very a good idea.

 

The chances that they will answer in a positive way, say, "yes, you are right, we acknowledge it is in the public domain", or even, "no, it isn't really public domain, but we grant you all retro community free usage and distribution" ... well, the chances to get any answer remotely in that spirit is probably below zero.

 

OTHO, there is some risk that you are opening a can of worms. Current Atari probably doesn't even know exactly the amount of IP that they legally own copyright. Some lawyer may suddenly realize from your email that there is a potential for profiting from this copyright. Ok, I agree that the chances that they will start sending cease and desist letters and ask for royalties is probably not very high. But the chances to obtain any gain is surely much lower. The risk is much higher.

 

Please, don't ever ask anything like that to Atari or to any lawyer representing Atari.

Edited by ijor
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Does this even really matter ?

No company has ever gone after any individual for pirating roms. In fact I'm only aware of Cloanto suing and that contracted company that worked on AmigaOS 4.X.

Just pirate old systems and no one will care unless you pirate the latest big money making systems.

 

 

It matters because currently no one can bundle the system roms with an emulator and no one wants to even host them on the same server making the barrier to entry for Atari 8-bit emulation much higher than it maybe needs to be and adding levels of unnecessary complexity for beginners who may want to get into the demoscene or homebrew games.

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Would the manuals count?

 

Of related interest (I'm on mobile, so I can't fully research if it still applies today to works created in that period or before): the Computer Software Copyright Act of 1980. It seems to give permission to emulate what you already own, which is pretty cool.

 

I'm not going to poo on this thread, because this is a good topic for us to understand and hold in our back pocket in case a future Atari owner decides to monetize old works and decides to take issue with emulation and rights to original code, even if it seems unlikely today.

 

PS: I wonder if they even have any real paper trail which documents ownership, outside of public belief.

 

The © on the back of the user manuals only covers the manuals. Atari should have put a © notice on the label under the system.

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Um, my real law degree and real law license and real 21+ years of legal experience suggest to me that your internet research is going to get you fucked. Google "Intellectual Property law attorney in [NEAREST LARGE CITY]" and then pony up a few hundred to a couple thousand bucks for some actual educated legal research and an opinion letter before you get yourself a nice big C&D letter from the entity currently calling itself "Atari."

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It matters because currently no one can bundle the system roms with an emulator and no one wants to even host them on the same server making the barrier to entry for Atari 8-bit emulation much higher than it maybe needs to be and adding levels of unnecessary complexity for beginners who may want to get into the demoscene or homebrew games.

Why is the barrier to entry "much higher"? All you have to do is download and install a copy of the XFormer emulator, then configure Altirra (or whatever other emulator you prefer) to use the XFormer ROMs. It takes less than five minutes of effort and only needs to be done once. If that "unnecessary complexity" is too much for beginners to handle, then IMHO they don't have any business tinkering with vintage computers and should stick to playing Candy Crush on their iPhones.

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"There is a copyright notice printed onto the rom chips but this is not acceptable either because:-"

 

Your park bench law degree has failed you. Just because

you can't see it without using a hex editor on the

code to plainly see it there means nothing at all.

That is standard state of the art practice and that

copyright notice in there trumps everything.

 

Their discussion of concealment involves printing it

on the paper behind the one glued to the front cover

of a bound book for example. One would need to take

apart the entire book to find such a thing and this

act of obfuscation negates the claim of copyright in

itself. Using a hex editor to read it is what one

would always have to do to as a matter of course, so

this is NOT the same kind of "concealment". It's a

legal term with non-standard meanings outside the

common man's use, they are speaking to obfuscated

concealment done purposely to drag offenders thru

the court system.

 

Copyright in code is valid and that's why it's there.

You can not get around this one.

 

Your only chance would be to prove that they did not

follow up and pay for copyright protection. But

corporations are given a very wide berth since they

have so many paid for copyrights, even with proof of

non-payment, the judge is likely to allow it protection.

And ALL of the code in similar machines - if it says

 

copyright Atari and dated.

 

And it all does, you have no legs to stand on.

This is why I'm asking for peer review, IANAL, just an interested bystander who sees a lot of 'opinion' and zero 'fact' when discussing these particular roms.

 

I did use a hex editor on the roms, there is no copyright notice there either. The notice exists on a printout of the original sourcecode, not the object code. This is unavailable to any user

 

The only notice is printed on the IC itself and taking your 800XL apart to see the copyright message is clearly the same as dismantling a book to see it or under a bit of canvas behind a picture frame; there would be no expectation for any user of an Atari to take it apart. WE are not the average user.

 

If published prior to 1989, without that notice, the work is not copyrighted.

 

I went through all of Ataris copyright notices today and there was only one that would cover an OS rom, the 65xe source. that was published in 1985 but not registered until 1990 (way after the 3 month limit and just before the 5 year deadline) so they would not be able to use that to seek anything other than damages caused since 1990 if someone distributed that rom.

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My main gig these days (and for the past couple decades ;) ) is law. Copyright law is a VERY specialized field, especially in the U.S., where Congress has retroactively amended the copyright act many times over the years, granting greater and greater protections to rights holders.

 

Your best bet, in my personal opinion is to just keep your own ideas of what is and is not protected by U.S. copyright law to yourself and do not hold yourself out as some kind of authority based on a few hours of internet research (and this is NOT to be construed as legal advice since I'm probably not licensed in your jurisdiction, and even if I am, I am disclaiming any attorney-client privilege or relationship - so there! :P )

 

 

All those amendments are to the Law post 1989 when the current law was introduced aren't they? Do any pertain to the law as it was prior to 1989? Why would they change that and not update the information on the copyright website?

 

I'd like to offer these roms on my website, I'd like to know that was legal. Given that I want to share, I cant really keep it to myself.

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Oh, no, that is not a very a good idea.

 

The chances that they will answer in a positive way, say, "yes, you are right, we acknowledge it is in the public domain", or even, "no, it isn't really public domain, but we grant you all retro community free usage and distribution" ... well, the chances to get any answer remotely in that spirit is probably below zero.

 

OTHO, there is some risk that you are opening a can of worms. Current Atari probably doesn't even know exactly the amount of IP that they legally own copyright. Some lawyer may suddenly realize from your email that there is a potential for profiting from this copyright. Ok, I agree that the chances that they will start sending cease and desist letters and ask for royalties is probably not very high. But the chances to obtain any gain is surely much lower. The risk is much higher.

 

Please, don't ever ask anything like that to Atari or to any lawyer representing Atari.

I framed it in a "This would generate a lot of good feelings in the very community you are going to try and sell ataribox into and would cost you nothing" kind of way. Figured it couldn't hurt.

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Why is the barrier to entry "much higher"? All you have to do is download and install a copy of the XFormer emulator, then configure Altirra (or whatever other emulator you prefer) to use the XFormer ROMs. It takes less than five minutes of effort and only needs to be done once. If that "unnecessary complexity" is too much for beginners to handle, then IMHO they don't have any business tinkering with vintage computers and should stick to playing Candy Crush on their iPhones.

Watch a RetroPIe user trying to set up Amiga, Atari, MAME or someshit. Finding the roms, unzipping, putting in the right location and changing the settings feels like rocket science to some of them. All that to just watch a couple of Demos puts them off.

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Source?

Uhh ... just look back and read the previous posts from people who understand the law and who have tried to warn you about the potential dangers of what you're doing. As they have tried to tell you, you're running the risk of opening an ugly can of worms and creating difficulties for everybody, all for the sake of eliminating a few extra minutes of one-time setup work for beginners who are too lazy to learn how to download and extract archives and navigate a directory hierarchy (which isn't "rocket science" by anybody's definition).

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All those amendments are to the Law post 1989 when the current law was introduced aren't they? Do any pertain to the law as it was prior to 1989? Why would they change that and not update the information on the copyright website?

 

I'd like to offer these roms on my website, I'd like to know that was legal. Given that I want to share, I cant really keep it to myself.

 

Read my prior posts. Parse them carefully. All I can or will say is contained therein, including the answer to your questions. Pay close attention to my use of the word "retroactively." It was not an accident.

I'm done.

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Watch a RetroPIe user trying to set up Amiga, Atari, MAME or someshit. Finding the roms, unzipping, putting in the right location and changing the settings feels like rocket science to some of them. All that to just watch a couple of Demos puts them off.

 

Sorry to sound like an elitist geek, but if one can't stand the heat then one should not be in the kitchen. Emulation is 100X easier than it used to be. As an embedded systems engineer for decades I have a bit of knowledge on Linux, cross compiling, hex edit, assembler debug etc that most people have no knowledge. None of these skills are needed now to emulate almost any older system. This was not the case a few decades back.

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Mr Robot you seem to fail to understand the level of

carte blanche given to corporations in copyright law.

 

It's egregiously liberal, take the XEGS rom with the

copyright display on the screen of Missile Command

and the nearest copyright judge would grant protection

across the board to any Atari 8bit OS and game.

From any time frame. In full disregard for the evolving

timeline that the common man off the street must adhere

to as to where and what does constitute a proper

copyright and how the symbol is ok one year and not the

next doesn't matter at all for a corporation with

hundreds of paid for copyrights. He is the guy in

the white hat and you will always be the interloper.

 

Especially when all you have is 'I want it'. Just my

2 cents and I was amazed to see a lack of copyright

notice in the code itself, but of course the source for

it is quite atomic in getting that point across right

away. Quite acceptable for a corporation with many other

copyrights, in my opinion it's their property in every

meaning of the law. Best of luck in your endeavors, I

doubt anyone is even watching but as you said, I am not

a lawyer.

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Your best bet, in my personal opinion is to just keep your own ideas of what is and is not protected by U.S. copyright law to yourself and do not hold yourself out as some kind of authority based on a few hours of internet research (and this is NOT to be construed as legal advice since I'm probably not licensed in your jurisdiction, and even if I am, I am disclaiming any attorney-client privilege or relationship - so there! :P )

 

 

My wife is a lawyer, and I was reporting on.a different forum on some of the things we'd been doing in crypto. I always used to sign off thusly:

 

My wife is a lawyer. My wife is not *your* lawyer. Get your own damn lawyer.

 

:)

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Can we get the topic title changed before Google, Bing, and Yahoo spider it? Opps too late for that ;) .

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There is no copyright notice within the ROM code.

Not entirely correct. On OS rev. 2 and later, running Self-Test's "All Tests", when it comes to the keyboard test, notice the keys which are "pressed" on screen automatically - they spell out a copyright message.

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Guy and Gals, I'd suggest well is left alone, the complexity of law is such that even a magistrate can redefine what he or she feels is the right thing so all the most complex of legal research can count for nil.

 

Me. I'm not a lawyer and I'd not fancy my chances against one so I'd not mess with the roms if I was an emulation author, I'd do as 99.99% do and NOT include them with an emulator and since this seems to be the only way making them PD would change anything I'd just leave it be. Just a cease and desist letter would give me collywobbles...

 

Paul

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