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To share an unreleased ROM or not to Share?

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7 hours ago, PikoInteractive said:

a prototype is Illegal to sell.

May I ask? What if the Developer of the game is selling the prototype? Or it was given to a child of the Developer and the child sells it years later?

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8 hours ago, Shawn said:

 

If you tried to take someone to court over owning a prototype of which they have legally obtained a copy and you don't but you have the IP ownership of, you would loose badly. They could counter sue at that point as well. 

But, they WOULD own the IP. That's kind of the main point of this whole thing- a company protecting a game they own. Plus this is all assuming you are, in fact, refusing to sign something saying you won't distribute the ROM.

1 hour ago, Magmavision2000 said:

May I ask? What if the Developer of the game is selling the prototype? Or it was given to a child of the Developer and the child sells it years later?

Depends on if the developer/child can prove provenance, and if said developer owns IP (since I assume you mean 'guy what made the code' and not 'company that paid him'.)

 

What it boils down to is, if a person/company owns the game program, you owning a copy of said program doesn't give you the right to put said program online. Most companies who actually care about this stuff aren't going to actively seek out protos & such for their games- that's basically suing their fanbase. But, if you make it clear that you intend to use your copy to distribute their program regardless, then they can (& likely will) use the legal system to stop you.

 

Short version: Have a proto? Don't be a dick about it.

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9 hours ago, PikoInteractive said:

Well if you offer them money and they do not want to sell it or are being difficult (there is proof you tried a reasonable means to acquire that prototype), a prototype is Illegal to sell. It is even against ebay and other marketplaces TOS.

 

I don't think I would lose, and I would be ready any time to prove anybody wrong.

 

Not everything is sold on ebay or online at all. If you have second hand info about someone owning a copy of a game and you are willing to hunt them down and sue them to get it away from them? 

 

Let's say you could do that, it would still be about the scummiest way to do business you ever could. Some protos are out there which are never ever mentioned outside of very tight knit circles and the kinda thing you are talking about only gives people MORE reason to keep them so private. Perhaps it's best not to buy the rights to games you don't own a copy of. Extra no,no to buying rights to games thinking you can strong arm a copy that might exist out of someone else's hands just cause you want to make copies to profit from it. 

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41 minutes ago, HoshiChiri said:

 

 

What it boils down to is, if a person/company owns the game program, you owning a copy of said program doesn't give you the right to put said program online. Most companies who actually care about this stuff aren't going to actively seek out protos & such for their games- that's basically suing their fanbase. But, if you make it clear that you intend to use your copy to distribute their program regardless, then they can (& likely will) use the legal system to stop you.

 

 

I agree with you there. Just cause you have a copy doesn't automatically mean you have the right to distribute it, especially if the IP is active and\or actively protected\used by it's owner.

 

What some of this is about is someone owning a prototype privately without intent to distribute and someone else buys the rights to that title without actually having a physical copy of it but knowing one might or dies exist in someone else's hands and taking them to court to take it from them so they can profit from buying the rights to that title ahead of time. That is dirty pool all around.

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Honestly I have to side keeping my answer pure so I won't read others responses.

 

I'm going to have to side with Cifaldi's comment specifically: "The next evolution for me was anger. Being angry at the gall of people having these like, goblin hoards of games that don't belong to them that they are controlling."

 

Let's be honest here, unless you're doing what Eli does with his Piko Interactive, which is finding the owner however obscure they are and buying them out or licensing the IP for release, you factually don't own shit other than the board the prototype resides on.  So really the guy is right, you have these collectors and they illegally even if it doesn't feel so, buying these games most often than not from other sketchy sorts who had no rights to sell the files off.  Yes they did own the boards the files are on, but they do not own the games.  To have these people find them by dumb luck or research to then hoard the things and perhaps leave them locked up for good, or until they sell to another lock and key type is sickening as it buries classic gaming history.  It's much like in a way old painting black market stuff where you find someone has been handing from dick to dick an old DiVinci people thought was lost for centuries keeping it from the masses other than the memory of hey that DID exist.  It's just wrong.  I know of some people from when I was more into collecting who do these things, like this one dude in Japan who will buy old game prototypes/demo stuff in that region and buries them in his place.  Not sure he ever backs the stuff up or not or just lets it sit on his throne of shallow selfish behavior, but until that guy dies, that stuff will stay gone, perhaps after depending too, and that's just a loss.

 

You also get the other spectrum of the thieves who just buy them, then make limited runs, perhaps numbered, who sell them at a higher price to a limited group which is all patently illegal so they can claim to recoup losses but clearly to sell and make a buck on and they're fairly awful too at a lesser degree because the file enough times does end up out there at least.

 

While I think they're scum at the same point, they're not required or obligated to sell something they got, but given they got something they odds are have no right to own legitimately in the first place I'm kind of torn on it too.  If people really cared and not to just lord it over others as some secret or not so secret trophy, they'd take the Piko route and get permission or buy out the rights as the correct thing to do.

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5 hours ago, Tanooki said:

... So really the guy is right, you have these collectors and they illegally even if it doesn't feel so, buying these games most often than not from other sketchy sorts who had no rights to sell the files off.  Yes they did own the boards the files are on, but they do not own the games. ...

There's nothing illegal about buying and selling prototypes unless they are stolen goods.  You'd have to prove they are stolen goods.  If you own a prototype then you do own one copy of the game.

 

7 hours ago, Shawn said:

...you owning a copy of said program doesn't give you the right to put said program online.

Nobody is saying this.

 

8 hours ago, Shawn said:

... If you have second hand info about someone owning a copy of a game and you are willing to hunt them down and sue them to get it away from them

Under what law can this happen?  It can happen if you can prove that you are the rightful owner of that copy.

 

 

If a person that owns a rare prototype, that the IP owner doesn't even have a copy, makes it available to an archivist to make a copy; it benefits everyone including the person that owns the IP.

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9 hours ago, Shawn said:

 

I agree with you there. Just cause you have a copy doesn't automatically mean you have the right to distribute it, especially if the IP is active and\or actively protected\used by it's owner.

 

What some of this is about is someone owning a prototype privately without intent to distribute and someone else buys the rights to that title without actually having a physical copy of it but knowing one might or dies exist in someone else's hands and taking them to court to take it from them so they can profit from buying the rights to that title ahead of time. That is dirty pool all around.

I agree to an extent- I'm not sure why attempting to profit from a title you buy the rights to is an issue... the game gets released to the public, preservation & distribution has occurred. The only difference is you need to buy the game now instead of downloading it. I don't see an issue. Especially given no one's suggested going straight to court over a proto- that's only an issue if the owner is being utterly uncooperative & holding the game hostage (as stated earlier.) It would go like this:

 

"Hello Billy Bob- we are RetroGame company. We own the IP to 'Marty's Mudslingling Muthas'. We heard you have an early review build of the game, & we want to release it. Can we meet to discuss terms?"

"NO, it's MINE! You can't have it!"

"OK, we don't actually have to take the proto from you- we just need the data. We can arrange for the rom to be dumped- it won't be as big a payout & you'll need to sign some papers saying you won't release it to anyone else, but that will certainly wor-"

"NO, it's MINE! You can't have a copy!"

"Billy Bob, you do realize you don't own the game itself, right? We do- we have a right to that data. I'm sure we can work something out that benefits both of us if you'll just-"

"NO, it's MINE! No one else can have it!"

"Well, we tried- Mike! Call the lawyers!"

 

I would really peg Billy Bob as the one playing dirty here- he lucked into a proto, likely through technically illegal means, and is now using that to keep the game from being released. He could have bought the IP himself. He could have sold the proto back to the company that owns the IP. He could have worked out a deal to get paid and keep the proto. Instead he refused to cooperate with anyone- he brought the legal action on himself.

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9 hours ago, Shawn said:

 

Not everything is sold on ebay or online at all. If you have second hand info about someone owning a copy of a game and you are willing to hunt them down and sue them to get it away from them? 

 

Let's say you could do that, it would still be about the scummiest way to do business you ever could. Some protos are out there which are never ever mentioned outside of very tight knit circles and the kinda thing you are talking about only gives people MORE reason to keep them so private. Perhaps it's best not to buy the rights to games you don't own a copy of. Extra no,no to buying rights to games thinking you can strong arm a copy that might exist out of someone else's hands just cause you want to make copies to profit from it. 

Thats why we put bounties in protos.

 

but some people raise the price ten fold because they know someone wants it. That is being a dick and thats what makes other people be a dick back and sue you basically what Im saying.

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15 minutes ago, HoshiChiri said:

... Instead he refused to cooperate with anyone- he brought the legal action on himself.

 

9 minutes ago, PikoInteractive said:

Thats why we put bounties in protos.

 

but some people raise the price ten fold because they know someone wants it. That is being a dick and thats what makes other people be a dick back and sue you basically what Im saying.

What legal leverage is there?   What would you be suing for exactly?

Edited by mr_me

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1 hour ago, mr_me said:

 

What legal leverage is there?   What would you be suing for exactly?

There is plenty of ways to bury people in legalities etc. Unfair competition, piracy, Robbery etc. Doesn't mean you will get all of them to stick. But at least will make an unwilling party play ball.

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If a collector is not distributing copies then there is no piracy, unfair competition.  There is no robbery either way unless the prototype is stolen goods. 

 

If the collector makes it available to archive.org then you should thank them because now you have a copy that you can use to distribute and sell more copies.

Edited by mr_me

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5 hours ago, mr_me said:

If a collector is not distributing copies then there is no piracy, unfair competition.  There is no robbery either way unless the prototype is stolen goods. 

 

If the collector makes it available to archive.org then you should thank them because now you have a copy that you can use to distribute and sell more copies.

It is illegal because it is a trade secret. That software should not be in his hand at all. Even if the company went bankrupt, there is a lawyer, trustee, creditors or another entity that has all right on that property.

 

Is like saying that you own reals estate of someone that went bankrupt/died because you are squatting on it. Someone somewhere has ownership of that property and it is not you because you found it. 

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If the prototype was sold at bankruptcy auction and eventually was legitimately sold to a collector then by definition it's no longer a trade secret.  Even if it was found in a dumpster in an abandoned warehouse you could argue it's no longer a trade secret.  Sure if it was liberated by an employee than it's stolen property.

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41 minutes ago, mr_me said:

If the prototype was sold at bankruptcy auction and eventually was legitimately sold to a collector then by definition it's no longer a trade secret.  Even if it was found in a dumpster in an abandoned warehouse you could argue it's no longer a trade secret.  Sure if it was liberated by an employee than it's stolen property.

 

I agree but now you are moving the goal posts.

 

if the prototype was bought at a bankruptcy sale, such collector should have paperwork of what was included and based on that either the collector owns the IP or just the board that the software is on (like Tanookie said).

 

but yeah I love this hypothetical scenarios keep them coming.

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You'd have to have a strong reason to suspect theft of trade secrets (e.g. an ex-employee involved in the transaction).  The burden of proof is not on the collector.

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Nobody has cared much about prototypes floating around, not even Nintendo's army of lawyers.  I agree 100% with Frank's anger though.  And yes, it's hoarding, it's not collecting.  Collecting a bare pcb with a bunch of EPROMS?  Stop it.  They're not retail versions in nice boxes and whatnot.  They're not part of any type of "full set" one may be attempting for various systems.  It's unlikely they'll even fetch much of a ROI unless you got it for spit.  Usually the 2nd owner is the "collector" who then stuffs it away never to be seen by the world.  I myself never "got that."  I'm sure every single one of them are hypocrites too, because you know they've downloaded plenty of shared unreleased roms to play!

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See now there's what I was talking about with Piko, you could have a legit distribution or hoarding of a proto if you have a bill of sale proving you got it from the true respective previous owner tracing back the heritage of it.  But most these out here now don't have this, they are things employees walked off with, perhaps stuff forgotten to be picked back up at an old media publication office, trade show losses, whatever down to an ex-employee who forgot they had an item when they quit.  Whatever the case is, someone owns that IP for that proto, that code needs true traceable lineage to be fair sale or it is peddling stolen code.  I don't really see much of a gray area here.  The fact most get away with it is that you don't have these games cropping up that have the old owner aware it's up for sale, or that thing even still existed, or they may not believe they still had control, or some other reason.  If more people were aware of what was being peddled for profit trading hands or doing bootleg releases they'd probably be pissed at some level.  They'd want to control their stuff, make money on it, or just keep it simply under their lock n key.  It's why when you see most of these stolen things pop up, they're not made by big companies because even those fools know a big still existing company would destroy them to make an example more often than not.  It blows me away that stuff like Earthbound and Sim City NES are out there as I'd have figured Nintendo (or EA with SC) would not be up for some sharking they're so known for.

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3 hours ago, Greg2600 said:

Nobody has cared much about prototypes floating around, not even Nintendo's army of lawyers.  I agree 100% with Frank's anger though.  And yes, it's hoarding, it's not collecting.  Collecting a bare pcb with a bunch of EPROMS?  Stop it.  They're not retail versions in nice boxes and whatnot.  They're not part of any type of "full set" one may be attempting for various systems.  It's unlikely they'll even fetch much of a ROI unless you got it for spit.  Usually the 2nd owner is the "collector" who then stuffs it away never to be seen by the world.  I myself never "got that."  I'm sure every single one of them are hypocrites too, because you know they've downloaded plenty of shared unreleased roms to play!

I sense a lot of anger in your post. Every Proto collector is a hypocrite. I’ve never downloaded or played one f’ckin ROM in my life. All I’ve ever done it tirelessly researched every prototype I’ve ever come into possession of, and it’s all IN THE WILD. Bought it at garage sales or off FB marketplace. But according to you that makes me a hypocrite! Nice. I don’t like being put in a category and I’m sure others on here don’t like it either.

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21 minutes ago, Jettgogaming said:

I sense a lot of anger in your post. Every Proto collector is a hypocrite. I’ve never downloaded or played one f’ckin ROM in my life. All I’ve ever done it tirelessly researched every prototype I’ve ever come into possession of, and it’s all IN THE WILD. Bought it at garage sales or off FB marketplace. But according to you that makes me a hypocrite! Nice. I don’t like being put in a category and I’m sure others on here don’t like it either.

Look you opened this can of worms, and labeled Frank a potential hypocrite which I take issue with.  There's no such thing as a "new researcher," then all work off of what others have done in the past, and yes, they're allowed to make money off of prior research.  Never played a rom?  I find that hard to believe, but whatever, you'd be in the minority.   No one is obligated to release a rom, but IMO those who hide them are being somewhat selfish.  You asked the question in the OP, and that's how I feel.  I can respect one's decision and still not like it. 

 

So what's the point for most of keeping a rom to oneself that is over three decades old?  I've always been confused by this.  You yourself said you do tireless research to find and document these prototypes.  Why do all that and not tell the community?  Isn't the point of research to do so for history's sake?  I mean, do film or music historians who scour for lost art do so just to keep it to themselves?  It just does not make sense to me.  As I said, very few programmers stand in the way of dumps, though there are definitely exceptions.  Most are completely orphaned.  It's one thing if a collector is literally off the grid, and does not/cannot dump the rom.  In my view there's two reasons to keep a rom off the net, perceived loss in prototype value and yes, a little selfishness.  Thankfully, most of the collectors lately have been releasing new finds. 

 

 

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15 hours ago, PikoInteractive said:

 

I agree but now you are moving the goal posts.

 

if the prototype was bought at a bankruptcy sale, such collector should have paperwork of what was included and based on that either the collector owns the IP or just the board that the software is on (like Tanookie said).

 

but yeah I love this hypothetical scenarios keep them coming.

Just to clarify, the collector would not just own the prototype board/hardware.  They would own one copy of the software, regardless of who owns the IP.

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11 hours ago, Greg2600 said:

Look you opened this can of worms, and labeled Frank a potential hypocrite which I take issue with.  There's no such thing as a "new researcher," then all work off of what others have done in the past, and yes, they're allowed to make money off of prior research.  Never played a rom?  I find that hard to believe, but whatever, you'd be in the minority.   No one is obligated to release a rom, but IMO those who hide them are being somewhat selfish.  You asked the question in the OP, and that's how I feel.  I can respect one's decision and still not like it. 

About me making the reference to Cifaldi being hypocritical, I was merely making a statement, not an accusation. For me what he is doing is very selfless, he is dedicating all of his time and energy to preservation. Very admirable in my opinion. In the article you can clearly see from his comments that those who "goblin hoard" games angers him greatly. He kind of casts "collectors" in a bad light in that article, and that very well might be the writer who wrote the article spinning it that way. So basically my hypocritical statement was that it would kind of irksome to me if he starts charging premiums for all of this "selfless, share games with the world that collectors selfishly hoard, I'll be the hero and leave no stone un-turned" mentality. That is all I was saying. And I asked it as a question, I don't know if he is charging premiums or not, I was curious if that was going to happen.

 

As for me never playing a ROM, what I meant is that I have never downloaded a game ROM from the internet. Like a dumped ROM. I have over 2,000 physical games that will take a lifetime to get through now, so I've never honestly focused on stuff I don't already have in my possession. Maybe some day I will but I just got a little upset at how pointed your comment was " Usually the 2nd owner is the "collector" who then stuffs it away never to be seen by the world.  I myself never "got that."  I'm sure every single one of them are hypocrites too, because you know they've downloaded plenty of shared unreleased roms to play! "

 

I am the second owner of a few protos that I have rescued from dumpsters and ebay flippers. Do I want to dump the ROMs of these games? I don't know...at this point in my life I am on the fence about it, that is why I started this post to begin with. Not to be labeled as a selfish goblin hoarding collector who won't share my games with the world. 

11 hours ago, Greg2600 said:

 

 

 

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Jeez with all this talk of suing and burying people in legalities, I wonder why anyone would want to keep their unreleased rom to themselves, or stay within a small group.

 

Doesn't affect me. I just use any proto boards I find in 3d macrame projects. I've got a quilt with some rare roms in that are all mine, and they keep me warm at night. Call the lawyers!

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Jetto, I appreciate the response, but again you don't seem to fall into the category which Cifaldi complained about.  First of all, you're here discussing prototypes in public!  He was talking about some people who for many years were quite off the grid.  Yes, they would often be in competition for the same gems, but this was no Raiders of the Lost Ark here, no fortune and glory to be had.  You can't have glory if you do everything in secret.  Some where fiercely against people even knowing they owned said proto.  Then you had many who would claim the financial investment would be harmed if dumped.  Well, my view on that is in 10 years there won't be many people who give a crap enough to buy it for the premium you paid regardless. 

 

Secondly, you seem to be genuinely interested in the history on the games, and again, the ones Cifaldi complained about are literally just hoarding the stuff.  Many have so many they don't know what to do with them.  They're not archivists, they're hoarders.  Which is why I said if you're truly interested in preservation then why not share it? 

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7 hours ago, mr_me said:

Just to clarify, the collector would not just own the prototype board/hardware.  They would own one copy of the software, regardless of who owns the IP.

Depends on the paperwork of the liquidation sale. If it specifically says they are getting a copy of the prototype only then yes. But that would be a major slip up from the Trustee and probably would never happen, as they normally try to squeeze as much money as possible from the assets to liquidate.

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