Atari acquires AtariAge

Today AtariAge proprietor Albert Yarusso announced that he has agreed to a deal to have AtariAge acquired by Atari. Yarusso will stay on and become an Atari employee.

This is an earthshaking announcement for the Atari homebrew community, and raises many questions.

The homebrew game development scene has always been a hobbyist community, first and foremost. As enthusiasm for the hobby grew, in large part thanks to the efforts at community building through the web forums on retro gaming websites such as AtariAge, these efforts became larger and more professional-ish, culminating in the production of physical game cartridges, complete with manuals and packaging which often equaled or even exceeded the quality of original commercially released games from the era when Atari was an industry leader. AtariAge has, for the past few decades, been a de facto leader in the homebrew scene, and gradually turned itself into a publisher and manufacturer of original homebrew games as well as romhacks. (For the uninitiated, romhacks are modified works where an original game has been edited to create a new game, or in some cases a bugfixed or enhanced version of the original game.)

These projects often leveraged earlier copyrighted and trademarked works, creating potential legal liabilities for the developers as well as the entire operation. But for the most part the IP rights owners have been mostly tolerant of these projects, for reasons which we can’t truly know, but may speculate about. Quite likely the IP rights associated with these works in many cases were essentially abandoned, or in many cases may have been deemed to have a low enough value that they were not worth pursuing lawsuits or even cease & desist threats over. And so AtariAge has managed to operate in plain sight, yet under the radar of companies that could have caused trouble that would have sunk their operation entirely.

There have been exceptions of course, and on occasion games such as Princess Rescue, a “de-make” of Super Mario Bros. for the Atari 2600, had to be taken down after actions by the notoriously protective and litigious Nintendo. But, by and large, AtariAge have been able to operate without weathering serious legal storms, and by so doing have kept interest in the old systems alive, and even growing.

Of course, much of the published video games from the early 80s are essentially abandoned by the industry. Many of the original companies went out of business, although their IP likely continues to be owned by someone. Typically the games were deemed obsolete with no real market opportunity for them to continue being manufactured and sold, at least not in their original format. Quite a few of the more popular games have been brought back over the years in collected formats, either ported or emulated on newer generation hardware, or repackaged and sold in all-in-one mini consoles, etc. Although from a legal standpoint copyright and trademark protections persist for the abandoned works, the lack of interest in protecting these rights has allowed hobbyists to ignore copyright and trademark, or to treat them as quasi-public domain properties, which they could then use to create new works. As long as these new works weren’t deemed a threat to the IP holders’ business interests, they were often ignored by them and allowed to skate by, existing in a legal gray area. Something akin to “squatters rights” for abandoned properties has been asserted by proponents of the “abandonware” movement, and I believe that there is considerable merit to the idea that it benefits our culture for these works to be affirmed to belong in the public domain. But that has yet to come, and perhaps may never happen.

In June of this year, AtariAge announced that they were removing certain IP-encumbered titles from the store, offering its customers a last chance to purchase them before they were removed for good. Yarusso offered some faint hope that he would bring these titles back, if and when he could arrange for it to be done with the approval of the rights holders. By being acquired by Atari, it seems that this is now much more likely to happen, at least for those games that belong to Atari. Games for the Atari home consoles which were developed by third parties may not be affected immediately or directly by this move, but it seems like it would be more likely for negotiations to acquire the rights from still-existing third party publishers to happen through Atari than through AtariAge.

AtariAge was mostly if not entirely a one-man operation, with Yarusso maintaining the website, physically manufacturing game cartridges and assembling them, shipping them, and so on, and this was not a primary occupation for him. And that meant that his availability to pursue licensing agreements or rights acquisition was for all practical considerations nonexistent. Now that he is becoming an employee of Atari, this becomes his full-time job, and that affords him more availability as well as more resources, potentially, to pursue agreements with IP owners so that these games may return.

It will be interesting to see what happens with the independent hobbyists who develop the games that are discussed, shared, and released on AtariAge. Technically, I believe that each individual homebrew game is owned by the developer who created it (other than any trademarks that may be used by them without explicit permission of their legal owners) and are manufactured and published by Atari Age with the consent of the developer.

If games published by AtariAge will now be considered “official” releases, released with the intent to be commercial products, rather than handmade hobbyist souvenirs, this could change how hobbyist homebrew developers view their work.

While many hobbyists produce their projects out of love for the hobby, and without expectation of meaningful revenue, that may change as sales go up from niche hobbyist levels to commercially viable levels.

Many homebrew developers may regard this as a positive development, meaning greater sales and more revenue to them for their games. But others may feel differently about this, perhaps not trusting or respecting the current owners of Atari. They may want nothing to do with Atari. Or they may wish to re-negotiate the business terms so that they too are treated as employees, to be paid a salary with benefits in addition to royalties. Or they may wish to be treated as third party developers who are paid under a commercial agreement for commercial releases, if their former hobby is going in a more commercialized direction.

And that could be the undoing of the hobbyist scene. If you don’t care about other people making money off of the work you donate freely to the world, it may not matter. On the other hand if others are creating a business based on games that you’ve spent a great deal of time and skill creating, perhaps you start to feel like you’re rightfully owed a slice of the pie as well. Oftentimes people are more than happy to donate to causes that are not deemed commercially viable, simply because they’re cool, but once enthusiasm for the cool thing grows to the point where it perhaps becomes commercially viable, things can change. Certainly, an individual hobbyist developer may object to Atari asserting ownership of their works, with or without due compensation for it; they may wish to retain all rights owned, even if that means severing agreements with AtariAge to produce and sell copies of their works.

In short, almost anything can happen, and it depends a great deal on how individual players and stakeholders perceive their worth, and how willing they are to play together to keep all the pieces together to enable the magic of game development to continue to put games in the hands of the gamers who play them.

We on the outside aren’t privy to the negotiations on how this came about…

Consider: AtariAge for the past 20 years has hosted a ton of IP that they don’t own copyright or trademark for. Scans of manuals and box art, ROM images, new games created with IP without permission or license of the original owner, etc.

Doing this was a valuable public service in terms of historical preservation. Without someone doing it, much of the cultural artifacts of the Atari era would have been much more likely to be lost forever, or at the very least been much less accessible to the public. And, aside from re-releases of a small subset of games, none of the companies that own these works did anything on the level that AtariAge did to curate these works.

But hosting IP that they did not own did put AtariAge in a precarious legal position. At any moment, the IP owners of the content could have taken legal action to shut AtariAge down.

Who knows, but it’s entirely possible that Atari pulled a power move, leveraging the threat of legal peril to broker an acquisition deal that potentially benefits both parties. It’s shrewd of Atari not to destroy AtariAge — the backlash from Atari’s true fanbase would have been lethal. The takeover could be the best way forward for all involved, all things considered. Even if there may be unavoidable downsides.

Anytime Nintendo takes down a fan-produced game that they didn’t have permission to use Nintendo’s IP for, people have said “I wish Nintendo would have just bought the project and hired them to complete it.”

I have no idea, but something like that could be exactly what just happened here.

How exactly things will shake out remains to be seen, but for now I am hopeful that we’re witnessing the beginning of a bright new era of the AtariAge story.

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