Tag: copyright

Atari acquires AtariAge

Atari, Console Gaming
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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.

Atari Age announces final sale of homebrew arcade ports

Atari, Console Gaming, Indie Gaming
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Copyright, Trademark, abandoned properties, lawyers.

Who knows what the details are? Not me, that’s for sure.

Games that were popular in the arcades in the early 1980s were often ported to home consoles of the day, but often did not receive the best treatment at the time.

For many reasons.

Primarily hardware limitations. Home systems of the day could not be as powerful as more expensive, dedicated hardware developed to play a specific arcade game.

But also budget and time constraints. Games were a business and development costs were constrained by expected returns. It would have made no sense to spend more money making a game than it could have been expected to bring in. Games were made to deadline, and often had to cut corners to meet them.

If they were too late to market, their popularity in the arcade could have waned, resulting in poor sales, missed opportunities.

Partly, to avoid cannibalizing arcade revenue (the logic being if the home game was just as good as the arcade, players would buy the home game and stop going to arcades.

The homebrew scene which has kept old systems alive long past the date at which official support ended has no such constraints. Game development is a passion project, a hobby, and an art before it is a business. Developers take as long as they need to perfect a game, and no reason to fear undercutting arcade revenue.

And system limitations can be overcome with additional hardware inside the cartridge, and advanced programming techniques that have been discovered in the decades since the system first became available.

So homebrew ports of arcade games did something that couldn’t be done commercially, often for games that had been abandoned by their intellectual property owners.

The success of this long tail aftermarket scene has rekindled interest in classic gaming, though, and nostalgic re-boots of old brands have brought about a change in the market. These games, once small enough to fly under the radar and escape the notice of rights holders legal departments, have become legally risky ventures.

I can only presume, but this seems to be the reason why Atari Age has announced that they are going to remove many titles from their store. The last chance sale on remaining inventory will end on July 23, after which these games will no longer be available through Atari Age, likely forever.

Atari Age proprietor Albert Yarusso has stated that he will be focusing on publishing original games and games for which licensing can be procured. “It’s possible some of these can come back, but it will take some time to do the legwork. I wholeheartedly encourage developers to create new games that aren’t encumbered, or to ask me in advance regarding projects that might be derived from others’ work.”

This would seemingly put an end to my hopes for a cartridge release of the beyond amazing Pac-Man 8k project, which I’ve been watching for about a decade, and was apparently very nearly ready to publish. Beyond that, there were many other work-in-progress projects that looked amazing but will probably now only be developed as ROM files, with no cartridge release, if development continues with them at all: Xevious, 1942, Lunar Lander, Elevator Action, and others.

This is a very sad thing indeed. But lawyers gonna lawyer. Copyrights don’t expire fast enough, and Trademarks can be lost if not enforced, and that’s what happens. Hobbywork homages be damned.

I love to see the original works that homebrew developers make, maybe even more than revivals of old arcade games that never got a proper treatment on the home systems. But seeing a modern homebrew remake compared to an official release of an original game from 40 years ago, being able to see how much progress had been made in the art of programming in those intervening years, was always such a treat, and a true thrill.

Please don’t do this

games
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I got this email today…

To:
Webmaster

Name:
Dean

Email:
[redacted]

Subject:
Dungeons and DoomKnights

Message:
Hello friend! I saw your posts about Dungeons and Doomknights and I
was wondering if you could send me a copy of the rom?

I know this is a bit blunt however I can’t find a digital copy of the
game anywhere including for purchase. I am a really big fan of the
creators and would really love a chance to play the game. Thank you!

I replied:

Hello, Dean,

I’m not at liberty to share the ROM. It is a copyrighted work.

You may purchase it from Hero Mart, however: https://www.heromart.com/products/copy-of-dungeons-doomknights-retro-edition

If you’re a big fan of the creators, you should want for them to be paid for their work.  This will enable them to create more games for you to enjoy.  $14 is not a lot of money to pay for a game such as this.

You’re welcome,

–Chris

I think ripping ROMs and sharing ROM files for abandonware titles is an ethically very-light-grey area, and would like to see copyright law revised to make it fully legal. But please do not hurt developers, particularly small indie and homebrew developers, by asking around for ROMs for recently released commercial products.

It’s one thing if the creator/rights holder releases the game for free, it’s quite another to go about asking reviewers for an unauthorized copy. If you understood how much effort was taken to create the work you’re seeking, you would appreciate how little they are asking for a legit copy.

I love Free/open source software, but not everything is. And that’s OK.

Respect creators. By paying them.

Update

“Dean” wrote back to me, to let me know that he tried to purchase the ROM from Hero Mart, at the link I provided, and the purchase failed. He wrote to their customer support and they confirmed that the ROM is no longer for sale, and Hero Mart have since taken the item off their site.

I do think it’s unfortunate that they chose to discontinue sale of the game so quickly. I can’t understand why they would want to do that. It’s their choice, but to me it runs counter to the spirit of the homebrew community, which is trying to keep old systems alive.

Update 2: rom and cart are back on sale https://www.heromart.com/collections/dungeons-doomknights-collection

The Debt We All Owe to Emulation

games
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Emulation is a broad topic within computer science. This article is specifically about emulation of video games.  There are many other purposes to which emulation may be applied as well, and it’s important not to lose sight of that.  Emulation is a general purpose tool, not merely a tool for piracy.

Old video games have become valuable to collectors in recent years. My generation grew up with video games, and much as the previous generation valued comic books and baseball cards from their youth to the point where they became worth serious money in the 1980s and 1990s, antique videogames have similarly grown in value.

It wasn’t always thus. For a good couple of decades, old videogames were considered obsolete junk. No one wanted them (except maybe a few very geeky people such as myself.) Mostly when a new system hit the market, people forgot about the old generation and within a year or two they weren’t available in the retail channel anymore, or were perhaps on clearance in dollar bins.

Importantly, the manufacturers didn’t continue to manufacture old generation hardware.  Although it became cheaper and cheaper to do so, there still wasn’t enough demand in old systems to keep them viable in the face of new competition. More to the point, manufacturers would have been competing against themselves.  And when trying to recoup the cost of major R&D budgets that produced that next generation, they wanted (and needed) the market to be focused exclusively on that new system. Keeping the old generation system alive would have cannibalized sales, and hurt profitability, and this would have stalled the progress of innovation.

We saw this with Atari. The 2600 was the system that broke through into nearly half of American households in the late 70’s and early 80’s. At the time, it wasn’t obvious to the general public that there was going to be a new generation every several years as Moore’s Law continued to work its magic to enable cheaper, more powerful computing technology.  Internally, Atari struggled with releasing their next generation system, the 5200. With tens of millions of 2600 consoles already in homes, the revenue stream represented by cartridge sales for the established console was too important for Atari to walk away from it. The 5200 wasn’t backward compatible (although an adapter for 2600 games existed) and Atari felt that the average consumer might feel alienated and abandoned if they had to go out and buy a new, expensive console.  As a result, Atari kept the 2600 alive an incredible 15 years, finally stopping production in 1992.  The 5200, launched in 1982, was hampered by a variety of factors, and never had the same level of success — it was expensive, lacked backwards-compatibility, the library was mostly the same titles as were available on the 2600, only with better graphics, the controllers were delicate analog joysticks that annoyingly didn’t automatically re-center, it contended in the market with rivals Coleco and Mattel, and then the 1983 crash of the North American market cut short its heyday.

The business data was always very clear on this. With video games, what was hot today was gone a few weeks or months later, or in the case of smash hits, maybe a year. New product constantly distracted and replaced old product, with a few notable exceptions such as Pac Man and Donkey Kong, most video games didn’t have staying power in the market.

Obviously, that’s not to say that old games started sucking and were no longer fun to play. They didn’t. But their enduring appeal didn’t translate into sustainable marketability.  And that’s why successful games spawn franchises of endless sequels and a multiverse of linked-IP titles. And the old constantly gave way to the new. And the business always wanted the market to be focused on the new, because that’s where sales were.  (But yet, in other market segments, they keep making chess sets, decks of cards, balls, copies of popular board games that have been enjoyed for generations, such as Monopoly, etc.) For some reason, the prevailing wisdom was you couldn’t sell a videogame that everyone had already bought.

Well, until recently. A little over a decade ago, Nintendo introduced the Virtual Console on Wii, and started selling us games that they had made in the 1980s and 1990s.  And we bought them. In many cases, we bought them again. For some, it may have been the first time.

Even that wasn’t a completely new thing.  Every console has had classic games ported to it.  Atari has continually re-packaged its greatest hits into collections that have been sold on just about every console and platform that has been released since the original system exited the market. Virtually every big game developer has done it as well: Activision, Sega, SNK, Midway, Namco, and on and on.

And what made that possible?

Emulation.

Without emulation, putting an old game on a new system would have meant porting it, essentially re-writing the game from scratch. And ports were never capable of being entirely faithful to the original. There’s always differences, often substantial, to the point that the nostalgic value of a port is never quite there.  It’s not like playing the original.  You can never go home again.

But with emulation,  you could. Emulators were magic. With an emulator, a new machine could be made to work nearly exactly like some older machine with a completely different architecture, and run software for that older machine without further modification, and the results would be virtually indistinguishable from that software running on original hardware.  

The old systems may burn  out and break down.  The factory could stop making them and shift production to other, more profitable, more in demand product lines. But as long as someone could write an emulator to work on modern machines, old games could live, in theory forever.

Game companies, mostly, did not want that. Especially if there wasn’t some way to make money from it. And once full retail priced sales for a game, or generation of games, stopped being feasible, game companies dropped the product line entirely. Their expectation as the buying public would follow on to the next new thing, and that’s where the industry wanted all focus.  

So game emulation, in its earliest incarnation, was an unauthorized, underground enterprise, a labor of love by gamers desperate to keep the games they loved from disappearing entirely, as they surely would have without their efforts.

And what good is an emulator without something to run on it? This is where ROM dumps come into play. Anyone can tell you that emulation isn’t illegal, doesn’t violate any copyright or patent or trademark law. But ROMs, those are a different story. Copyright law is clear enough about making unauthorized copies of copyrighted works for distribution and especially for profit. There are limited provisions for making copies of works for personal use, of a copyrighted work which you own a copy of, for archival/backup purposes, for academic purposes, for criticism and review purposes, for time shifting and platform shifting, and so on.

Archival/backup purposes fit the context of ROM dumping best, but even so, technically this is a personal use right, meaning that in theory (to my knowledge this has not been tested in the courts) a person could legally dump the ROM of a game that they personally own, for use as a backup, and use an emulator for platform shifting that work onto a new platform.  But that’s a personal copy — they still don’t have any right to distribute that.  And even if my copy of Super Mario Bros. 2 is exactly the same as the copy that someone else already dumped for their own personal use, I can’t (legally) take a shortcut and make a copy of their dump; I have to produce my own.  Which takes time, effort, equipment, expertise, and the vast majority of people do not have that, nor do they have the inclination. So people did the only reasonable thing there was to do: they shared copies of existing ROM dumps. And yes, this meant that many people obtained copies of ROMs that they didn’t own an original copy of. And this was copyright violation.

And yet, for a long time, there still wasn’t enough value in emulation for the rightful intellectual property rights holder to have incentive to do anything about this situation.  And so, as a result, the Abadonware movement began, and the underground emulation scene grew and grew and grew.

You can go to a bookstore today and buy a new copy of a book written hundreds of years ago.  At least, certain ones.  You can’t go to a retail store and buy a new copy of a video game produced 40 years ago.  Not most of them. Sure, today there’s now a few exceptions, if you want to count systems like the Atari Flashback or NES Classic.

But — these systems only cover a small fraction of the catalog of titles that were released for those systems.

And — those systems are only possible because of emulation.  They’re dedicated emulation boxes. That’s right.

For $60, you can buy a tiny selection of really great games, and through the magic of emulation, play them on a modern HDTV. Much of the work that made that possible was pioneered, for free, by enthusiasts and hobbyists who made it their mission to preserve the past and ensure that some game that they loved would be available forever.  For free.

And more than just preserving the popular hits of yesterday, the emulation scene also provided equal attention to games that virtually no one had played, and even fewer people care about, or even knew about.  Rare games that hadn’t performed well on retail release, but were nonetheless good games, have gotten a second wind and rebirth, in large part because someone in the emulation scene ripped a copy of it, and distributed it for free so that thousands of people could experience it.  Games like Little Samson, a NES rarity that sells for thousands of dollars for an authentic copy, could not be experienced by the vast majority of people, without a ROM dump and an emulator.  And probably the black market distribution of this ROM is what helped make people aware of it, to create the demand that gave rise to the premium price that the original now commands.

Companies like Nintendo didn’t want you to play their old games, at one time, for a long time.  But now that the emulation scene proved that those games did have lasting appeal and historic value, now Nintendo would like to sell you those games again. And because they can, they seek to destroy the underground movement that showed it was viable and created the technology that made it possible.

I find this incredibly sad, aggravating, and tragic. I may have a personal collection of physical cartridges in my gaming library, but I certainly couldn’t replace them at today’s prices if they were lost.  And that hardware’s not going to last forever.

Copyright used to have a limited term, and this would have made things a lot easier for the emulation movement to happen in a completely legal way. But over the years, large companies have continually altered intellectual property laws — always to their benefit, never for the public good — to secure a perpetual right to works, robbing the public domain of a rich future. 

Robbing the public.

Robbing all of  us.

Review: No Mario’s Sky/DMCA’s Sky

Best Of, business, games, reviews
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In my last post, I talked about the recent copyright and trademark infringement takedown actions initiated by Nintendo against No Mario’s Sky and various other games hosted on GameJolt.

Here’s a review of No Mario’s Sky/DMCA’s Sky.

No Mario’s Sky was made in a weekend for Ludum Dare 36. It is a mashup of Hello Games’ No Man’s Sky and Nintendo’s Super Mario Bros. The theme for Ludum Dare 36 was Ancient Technologies. It’s unclear how this game relates to the theme. However, due to the popularity and familiarity of Mario and No Man’s Sky, the game got quite a lot of attention in very little time, and was picked up by websites such as Kotaku and Polygon.

The premise of the game is that Mario is looking for the Princess on an infinite series of procedurally generated 2D Mario worlds. The worlds wrap around a circle, giving them the appearance of planetoids.

Once you’ve satisfied your curiosity on one world, you can summon your spaceship and take off in search of another world. Apart from the color scheme of each world, there’s not all that much to differentiate them, which may be due to the game being developed in just 72 hours, or may be a deliberate commentary on the procedurally generated sameness that many players of No Man’s Sky have complained about.

No Mario's Sky

From a Mario standpoint, the game only borrows the titular character, the goomba enemy, and the basic concept of jumping on platforms and enemies, collecting coins, and hitting platforms from below. No sprite artwork is taken from Nintendo’s games, as all sprites and tiles appear to have been re-created by the ASMB development team, and while the Mario and Goomba characters are recognizable, they are not in any way confusable with Nintendo art assets. There is no brick breaking, no super mario mushroom, no star man, no fire flower. Again, this is likely due to the compressed schedule under which the game was created. Each world plays its own variant of the Super Mario Bros theme music, which is again a re-done composition, not the original music ripped from the Nintendo game.

In short, from a copyright infringement standpoint, this game is in a gray area, but pretty safe, in that nothing is actually copied directly from the Nintendo games. This game is about as much a Mario ripoff as KC Munchkin was a Pac Man ripoff. (Atari successfully sued Philips to stop the sale of K.C. Munchkin, even though the game was not Pac Man, but the case was bullshit and probably would not have succeeded were similar suit brought today.)

From a trademark infringement standpoint, of course, the game clearly is using the identity and behavior of the famed Nintendo mascot, without authorization or permission of Nintendo. If this were a commercial product, it would certainly be liable for trademark infringement. However, this is probably closer to a parody, or a “fan game” or homage. Unfortunately, the latter two concepts don’t exist as legal categories. It might be that the creators could have successfully defended the game as a parody, but that would have involved going to court and rolling the dice to find out whether they could persuade a judge of that. There’s simply no way an independent developer has the time or resources to try to defend what amounts to a weekend’s worth of work against a company the size of Nintendo for what would surely be months or years of litigation.

If ASMB had avoided use of the Mario name, perhaps renaming him something recognizable, like “Mustachhio”, say, and if the music had been done in a way that was recognizably Mario-eque without having the exact same melody, probably Nintendo would not have had any copyright leg to stand on, and the game could have remained as-is. From a trademark standpoint, though, it probably does run afoul of Nintendo’s trademark on the Mario Bros. franchise, given that it uses the Mario and Goomba names and likenesses.

While the game is fairly bland as-is, the concept is certainly fun and held promise. Were the game to be developed further, to better incorporate the Mario characters and play mechanics, it could have been a very enjoyable game.

DMCA’s Sky removes the Mario and Goomba artwork, replacing them with a generic space man and alien, and the music has also been replaced, but otherwise the game is much the same. Interestingly, the jump, coin and 1-up pickup sounds remain recognizably Mario-esque, but again do not appear to be direct rips from original sources.

DMCA's Sky

I suppose Hello Games could also make an IP infringement claim if they wanted to, and force the game to remove the procedurally generated planet hopping, at which point the game wouldn’t have much left in it anymore. Notably, so far at least, they haven’t.

It turns out, though, that when you break down just about any video game into its fundamentals, pretty much every game is based on, or borrows from, concepts that came from some other game. And — this is the important thing that must not be lost sight of — concepts are not subject to copyright. Not even play mechanics are copyrightable. Only actual works are copyrightable.

Of course, copyright is only one branch of Intellectual Property law, and there’s also potentially opportunity for patent and trademark lawsuits to shut down a game that borrows “too much” from a well known existing game.

Despite this, much of the charm of No Mario’s Sky was in its mash-up-ness, and this charm is effectively stripped from it by removing the Mario references. So clearly, the game derives some value from referencing the source material that it is based on. I don’t think that can be denied. I have a harder time seeing how this game harms either Nintendo or Hello, however. It was available for free, not for sale. It isn’t reasonably mistake-able for a real Nintendo game, and if that were a risk it could be prominently disclaimed on the title screen that it was not in any way connected to Nintendo, who retains full ownership of the “real” Mario characters. I see little evidence that the existence of this game or the numerous other Nintendo-IP infringing games done by fans over the years (including ROM hacks, homebrew games, de-makes, and homages) has in any way diminished the Nintendo brand or harmed Nintendo as a business.

The takedown of unauthorized fan games isn’t anything new — it’s just the latest in a string of consistent defenses of Nintendo’s IP rights. It’s clear that Nintendo is aggressive in protecting their IP rights, and have always been. This has been in part due to their corporate culture, but also in larger part due to the nature of IP law.

But IP law isn’t immutable. We could as a culture elect to shape law differently, if we could agree to.

Nintendo’s takedown of videos on youtube and elsewhere, of people playing their games who do not participate in or follow the rules set forth by Nintendo in the “Nintendo Creator’s Program” is ridiculous — it’s not a copyright infringement for me to play a video game, or to talk about a videogame, or to record me talking about a videogame while playing it, and footage of said videogame that I create should legally be my sole creation (while the characters owned by Nintendo and other IP-holders are still retained by those holders).

If I want to make a video of a videogame for purposes of review, criticism, or parody, I shouldn’t have to obtain the permission of the IP rights holders of the videogame, nor should I have to share revenue with them. They earned their revenue already through sale of the game, and did none of the work to produce the video, so why should they be entitled to a share of revenue generated by the video?

Likewise, if I want to make a videogame that references other videogames, much as a work of literature may reference other works of literature, creators should have some right to do so. Exactly how this should work out so that the original creator’s rights are protected and respected isn’t very clear, however.

Ultimately, the power seems to fall to those who have the deepest pockets with which to pay the most and best lawyers. As as a result, the culture, and the game playing public, is poorer for it.

Mario on iOS, Nintendo copyright takedown

Best Of, business, games
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Nintendo announced the first (authorized) appearance of Mario on iPhone a few days ago:

There’s much to be made of this.

Ten years ago, while the Wii was selling phenomenally well, there were some wild rumors about Nintendo and Apple teaming up to bring games to the Apple TV device. But, while tantalizing, these rumors never panned out, nor really made sense. While both companies were extremely successful on their own, they didn’t really seem to need each other, or have any reason to cooperate. Nintendo software licensees could have certainly helped put Apple TV in many more homes, but what could Apple have offered Nintendo, who weren’t having any trouble selling the Wii?

Fast forward to 2016, and the successor to the Wii, the Wii U, is widely regarded as a misstep for Nintendo, and now it appears maybe they do need some help. But rather than looking for it in the living room, where they are poised to launch their next-generation NX console in a few months, right now they are going straight for the pocket. Meanwhile, Apple’s huge hit from 2006, the iPhone, has been a juggernaut for much of these last ten years. And here is where Apple and Nintendo can help each other out.

It’s the first time in decades that Nintendo has put software out on a platform that it does not own. This could be seen as a concession that Nintendo is no longer dominant in gaming hardware, or simply an acknowledgment of the vitality of the mobile gaming market. While Nintendo have been hugely dominant in the handheld market since they released the Game Boy in 1989, smartphone and tablet devices have in the last decade created an even bigger market for games. With the massive success of Pokemon Go earlier this year, the writing was on the wall, and Nintendo making this move now only makes sense. In fact, it’s probably overdue.

Entitled Super Mario Run, it appears to be an endless runner type game rather than a typical 2D platformer. Due to the iPhone touch screen being the only controls, and a desire to make the game playable one-handed, this design addresses the constraints imposed by the user interface in about the only way that would work well.

More Nintendo Copyright Takedowns

Nintendo also made headlines this week by issuing takedown notices for a large number of unauthorized games that infringe upon Nintendo-owned trademarks, particularly Mario and Pokemon. It is not surprising at all that this should happen, but still disappointing for people who built or enjoyed those games. While many of these games may have been derivative and inferior games done in homage of, some were parodies or innovative or just fun, well done fan homages.

It’s too bad there doesn’t exist a legal framework in which fan-made games can co-exist peacefully with official releases by commercial studios, but licensing is only a solution if the IP-holder embraces it. Nintendo are within their rights to take these actions to protect their trademark and intellectual property rights, of course, and perhaps it is necessary for them to vigorously defend their trademarks or risk losing them entirely, but it’s nevertheless possible to set up a legal framework by which these unofficial games could be allowed. While it’s entirely ridiculous in my opinion for Nintendo to claim copyright and trademarks on speed run, Let’s Play, and review videos featuring their products, something like the Nintendo Creators Program would make a lot of sense for fan-produced games.

What might such a program look like? I would propose something like the following…

  1. The fangame creator would acknowledge that Nintendo created and owned whatever they owned.
  2. The fangame creator disclaims that Nintendo do not have any responsibility for content the fangame, and that the fangame is not an official Nintendo release.
  3. Any revenue derived from the fangame would need to be disclosed and shared with Nintendo.
  4. The fangame could be nixed by Nintendo (pulled from release) at their sole discretion at any time.

I very much doubt that a company like Nintendo would ever agree to such terms, but it’s too bad. Apart from perhaps Nintendo, everyone is worse off because of it.

The irony of this situation is that Nintendo can copyright and trademark its characters, but not the mechanics or genre of game. (Nor should it.) Someone can invent the infinite runner, and Nintendo can decide to do a Mario infinite runner game, and not owe anything to the inventor of the infinite runner game. So can anyone else. And Nintendo can make a running and jumping platform game, and anyone else can too, duplicating the Mario mechanics and rules system entirely if they should wish to, but simply can’t use the name Mario or the likeness of any of Nintendo’s graphical or audio assets.

XBox One: Why REAL ownership matters, and will always matter.

Best Of, games, reviews
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On ArsTechnica, today, I read the following in defense of XBox One:

“This is a big change, consumers don’t always love change, and there’s a lot of education we have to provide to make sure that people understand.”

…a lot of the way people have responded to Microsoft’s moves was “kind of as we expected.” But the implication … was that this temporary confusion and discomfort among the audience would be worth it as gamers and consumers adjust to a console world without game discs.

“We’re trying to do something pretty big in terms of moving the industry forward for console gaming into the digital world. We believe the digital world is the future, and we believe digital is better.”

[Microsoft] made a comparison to the world of home movie viewing, where inconvenient trips to Blockbuster Video have been replaced with Netflix streaming on practically any device instantly. On Xbox One, having all games exist as cloud-connected downloads enables new features like being able to access your entire library at a friend’s house with a single login, or loaning games to up to ten “family members” digitally and remotely.

Immediately, I want to point out that Netflix (and Hulu) didn’t replace owning a copy — my copy — of a movie. They replaced movie rental and scheduled broadcast television — with something better and that eliminated inconveniences.

With Netflix and Hulu, you don’t have to program a DVR, or go to a store, or deal with rental returns and late fees. And assuming you only want to watch a thing once or twice, and don’t care to own a copy of it for all time, it’s great.

But online streaming on-demand services cannot replace certain aspects of owning a copy. And those things are very important. Users of these services know already that what is available today may not be available tomorrow. If the copyright owner decides to stop licensing the programming through the service, it will not be available any longer on the service. But a physical copy that you own can always be played, whenever you want to, as long as you own it. So if you want to guarantee availability of something forever, you can only do so if you own your copy.

And the copy you own will remain the edition you bought forever — no 1984-style “memory hole” for the old edition when the producers decide to release a new cut as the canonical version. No forced upgrades pushed over the network, eliminating or changing some scene that some group found objectionable for some reason, and managed to successfully pressure the studio into changing.

Video productions are re-cut and re-edited all the time, and for the most part people don’t notice it, or care. But sometimes the changes can drastically change the meaning. In the 1990’s, singer Sinead O’Connor once made an appearance on Saturday Night Live,  during which she unleashed a storm of controversy by tearing up a photo of Pope John Paul II on live television. NBC and SNL immediately distanced themselves from the incident and claimed to have had nothing to do with it, apologized for the offense it may have caused Catholic viewers, and claimed that it was something that O’Connor did on her own without informing the producers of her plans. This act of protest was never rebroadcast, and to my knowledge cannot be seen in any format today. Today, apart from viewers memories of the incident, it may as well not have happened. Unless someone with a VCR happened to tape that episode and kept it, as I’m sure many may have done, it would be lost forever, imprisoned in NBC’s video archive, if it exists at all. O’Connor’s act was an act of political speech, and whether you agree with her message or not, she had a right to say what she wanted, in the way she wanted. Of course, NBC and SNL own the rights to the video of the event, and have the right to not to make it available if they want, or edit it in whatever way they choose. But it was also broadcast to millions of homes over the public airwaves, and those who witnessed it own their memories of the event. And, for those who have have their own copy, and because you can own and control your own copy, NBC is not able to suppress it completely, or to compel holders of copies to surrender or destroy them. If need be, it could be proved that the incident happened, and, although they haven’t gone so far as to deny that the incident never took place, they certainly don’t like to bring it up, and if NBC wanted to pretend that it never happened, people can contradict the official histories, not just with memories and eyewitness testimony, but with evidence. Owning your own copy can help save The Truth from the memory hole. It gives you the power to own a little bit of the The Truth, outside of your own skull.

If you’re not a political person, you’re probably thinking “Whoa, you’ve gone off the deep end. This is just entertainment we’re talking about. Movies, TV, and videogames. We’re not talking about the news, or matters of public record. Surely this isn’t important stuff, get a grip.” But games do get censored, or pulled from the marketplace, and this can effect people who already own them, if they give up control of the copy that they purchased to DRM. Moreover, wherever DRM technologies make inroads, it tends to result in their becoming more accepted and likely to be used elsewhere. If we accept DRM for television, movies, and games, the technologies are then already in place, and may be used by hard news and official government content providers. Even if they were only used for entertainment, this is our culture — do we really want it to be completely controlled by corporate copyright holders?

Microsoft’s XBox One distribution offers to replace ownership of a physical copy with something worse. It might beat rentals, but it sucks compared to buying. It’s not the digital distribution and decoupling from physical media, it’s the DRM and the licensing vs. owning a copy.

There are pros and cons to decoupling software from physical media, but on the whole I am fine with owning my copy of a computer file, vs. owning a disc or ROM cartridge that came in a box. But de-coupling need not be accompanied by artificial limitations of use imposed by DRM and the need to authenticate a license to a copyrighted work. A license-to-access model is inferior to a model of owning a copy.

Learning from history

I have, in my personal game collection, consoles from Atari, Mattel, Coleco, Nintendo, Sega, Sony, and Microsoft. The oldest of these systems were built in the 1970’s. They are still fully playable, barring hardware failure.

Even back then, there were very early attempts at online play and distribution of games. They were ahead of their time, but from the earliest days the game industry tried to figure out ways to get people to subscribe to a service that would allow them to sell games directly to customers, replacing traditional retail distribution with digital download over a modem connection.

These services are long gone. Any games that were distributed exclusively via these means are exceedingly rare. If they exist at all, it’s only because someone who downloaded the game never erased it from their media (typically an audio cassette tape, or possibly a floppy disk), and because the game didn’t depend on the online service in order to run. This last bit is absolutely crucial. If these games could not be played if they depended on the continued existence of servers which were closed down by the vendor when they were no longer profitable, these games could not be played today.

“Well, who cares? Who cares about these old games?”

It turns out, a lot of people. Everyone who owns them, and would like to continue to be able to enjoy them. Anyone who wants to introduce their favorite games from their childhood to youngsters today. Collectors. Historians. Game designers.

“But popular games get re-packaged and re-sold with each generation!”

I suppose they do. Nothing wrong with that. It’s a good thing.

But what if your favorite game isn’t one of the few lucky popular games that gets chosen to live on? What if you want to play the games on the original hardware? What if you don’t want to have to re-buy games that you already own in order to play them again on your current-generation console?

“But you can’t go out to a retail outlet and buy a traditionally distributed game that isn’t being made anymore. So why should it matter that you can’t buy a digitally distributed game anymore?”

Because, the games that were sold while it was available are still available. They are tangible, transferrable, resellable goods, and as long as they remain physically intact, and someone in the world wants to enjoy them, there is a market for them. It might be garage sales and flea markets and eBay, but it’s possible to find and buy a videogame that was made in 1977. It might not be easy in some cases, but it’s possible, and it’s no more complicated than finding the game, plugging it in, and playing it.

I guess it may be starting to become more difficult now that old-fashioned NTSC CRT TVs are disappearing, along with their antequated analog signal input jacks, but the point is that there’s no need to negotiate the right to play the game with the copyright holder. If you have it, you can play it.

Digitally downloaded games could be just as transferrable — far more transferrable, in fact. Files are easy to share and copy. Compared to making a copy of a printed circuit board and ROM chip, it’s dead simple. The future should be making it easier to do things, not harder.

But if games have dependencies on network-based resources that the player does not control in order to function, this all changes. It seems likely that game companies will sell the client, but not the server. But when the company no longer sees value in maintaining the servers, and decides to take them down rather than sell them to someone who’d become a competitor, or release the source code so that the player community can host their own servers, that will be the end of that game.

The level of dependency may vary considerably, from simple license/subscription validation, to enabling multiplayer features, updates, and downloadable content, to online leaderboard and achievement data. From the gamer’s perspective, the possibilities are rich, but they all disappear when the servers go offline. Nothing can compel a company to release the server software as a product or as a freebie once they decide to end-of-life an obsolete title, but without the server side, the clients are potentially useless, and at the very least are diminished.

Furthermore, servers can be used to killswitch the client, or to force unwanted upgrades. What if you liked the 1.0 version of your favorite game, but hated what they did with 1.1? If you can’t roll back, if you can’t decline an upgrade, there’s not much you can do. Game companies that serve the player’s interests well should design their upgrade systems to allow the player to play the game in an earlier version mode if they desire. And server code should be made available (whether for free or as a product) once the parent company decides it’s time to shut things down, so that players can continue to have full access to the complete experience indefinitely, as long as there’s a community who wants it. Of course, security concerns will mean that any code running on a network node will need to be patched, so it would be best if the source code is available to enable patches to be made.

Obviously, many of those requirements for libre software are too much for most game companies in their current thinking. “Allow our obsolete products to continue to be sold so that we have to continue to compete with ourselves? Release our server source code, are they mad?” While it’s difficult to imagine many companies doing anything like this in today’s market, these are the sort of things that gamers need as consumers, and the culture needs from the vantage point of the historian. Some companies, notably Id Software, have opensourced their older game engines, so it’s not unthinkable that the same could also happen with server technologies, though there are certainly many obstacles, such as software patents, and the fact that many game design studios license third party engines.

Still, even if it’s a highly unlikely ideal, it’s important as a point of comparison, to know just how much you “own” the things that you “buy”, and a target for the consumer to strive to push the market toward. Consumers do have power when they act collectively. It is only for us to realize this, and seize the power that is within our grasp.

A Viable(?) New Business Model for Indie Game Development?

games
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This article has also been posted on Gamasutra blogs.

So, I was thinking about making games, and why I do it. I’ve always said that I don’t care if the games I make generate income. I’m doing it because I love it, and while that’s enough motivation for me, any money I do make will help justify doing it more.

Then I thought about business models, and piracy, and copyright, and all the pain that goes along with that, on all ends of it. And I thought about the “pay what you feel like” model, and the crowdfunding model, and the way some AAA games get pre-ordered so gamers can reserve a copy at their retailer. I kindof like pay-what-you-feel-like. But then I thought of something innovative, that combines the strengths of these approaches, and takes them to the next level.

It’s a secret to everybody

So here’s my idea: All the games I release are free/pay-what-you-want. There’s no DRM on any of it, you can play it as much as you want, share it with whoever you want. I think most will agree that DRM sucks, and I don’t want to spend time or resources trying to come up with some copyright enforcement mechanism that will only be broken hours after I release the game, or tie the game to some online service that will mean that if the company ever goes out of business, all the games will become unusable. I don’t want to inconvenience legitimate owners of my game and then have to offer a quick patch and a lame apology for it later. I *want* people to play my games — and share them with their friends — why would I want to put an obstacle between them and the game that I want them to play? I’ll even put in social features that help you share it with all your friends and tweet about how much fun you’re having playing my game.

Let’s play money making game!

Here’s the money-making part of the plan: You pay for me to make my next game. Whatever it is. I’ll announce my projects and work at them at the pace that I can sustain. If I have to work a lot at some other job in order to pay my bills, then I spend more time working, less time making games, and the game still happens, but probably not for a long time, and maybe not ever.

This is, after all, pretty much how Kickstarter works: you pay up front for a thing to be developed, and you wait some time until it is ready to be released. And like Kickstarter, pledged funds would not be collected until the goal has been reached. And it seems to work well, at least for established names who have a reputation and fan base. But how does an unknown attract The Crowd and convince them that they’re worthy of funding? Anyone can start out small and build their fanbase over time, assuming they are dedicated and talented and put in the work. I know of no other way to build a fanbase than to release high quality games and distributing them as widely as you can, and ensuring that people who get to play them learn how they can get to play more awesome games even better than the one they just played. And the best way to ensure the widest distribution is to release for free. Once you have fans who believe in what you are doing, enough of them will gladly pay to see more.

If I finish the game before it has reached the money goal, I hold on to it until my fundraising goal is met, and taunt you with YouTube videos showing how awesome it is, and asking for money to release it, and otherwise marketing the game. Once I hit my revenue goal, I release it, for free, no DRM or anything, and the game becomes an advertisement for my next project which I am happy that you share with anyone and everyone.

So, if you like the games I make, and you want to see more of them, give me more money, and the more I get, the more time I can spend making games instead of doing other things that make me money.

I like it. It’s straightforward, it completely eliminates any concern about piracy or DRM, because you can’t pirate what hasn’t been built yet, and in fact my games’ popularity is aided by people who enjoy the games spreading the word about them, and getting more people to play them, it basically de-fucks copyright and performs its original purpose — To promote the Progress of Science and useful Arts — and, if the money comes in, it encourages me to make more, better games faster.

Learning from previous business models

During the shareware era, the proposition to the market was: “If you like this game that you just played for free, pay the shareware license for this game, because if you don’t then I’ll go out of business and there won’t be any more games.”

But most people ignored this. Revenue from shareware releases was always a tiny percentage of the total number of people who used the software. Users don’t like the nag screens and the guilt trips, and they’ll hack the binaries to eliminate them. They share the activation codes or crack whatever license controls you can think of, and you end up spending more time researching anti-piracy and fighting the spread and popularity of your game than you do making more cool games. It’s counterproductive.

But with this new approach, where the developer is explicitly saying: “This game is free, play the hell out of it and share it with as many friends as you can!” but also, “Here’s what else I have to offer, and you can help make it happen by contributing money to the project.” Kickstarter and IndieGogo have proven that this is viable. So, we’ve fixed all the problems of the old model — although the difference is subtle, the business model is crucially different, and addresses the failings of the previous models, and turns them into strengths. All the games are free upon release. Suddenly, there’s no longer an adversarial relationship between the players and the developer: I do what I love and make games, and you do what you love and play them. And if you want to play my next game sooner, you help me out by funding it.

By itself, I think many, perhaps most gamers would still ignore and pay nothing, like always. I mean, sure there’s always going to be leeches in any system. Leeches gonna leech. But that’s fine, because in my business model, they’re performing a valuable service: they’re doing your marketing for you, if you get out of their way and let them. Some people would pay because the idea that they’re helping to create the next game sooner holds great appeal. It’s that hipster “I was into X before X was cool” prestige. But there does need to be enough of those people. I think Kickstarter and IndieGoGo and others have established that there are indeed enough of these people. So, there just needs to be ways to encourage and incentivize gamers to fund your next project.

We’re already seeing this done with the Kickstarter model. A pitch video, a tiered system of rewards, regular, open communications between the creator and the backers. That’s part of what was missing from the old shareware model. In the shareware days, the developer was faceless. But today, the developer’s on the web, on youtube, on Twitter, in your inbox. You have a relationship and they’re more responsive to you than ever before. This makes you much more likely to be willing to spend some money. Because you know who it’s going to, and you see what it does.

To encourage people funding me, I would have a progress bar tied to my income stream showing the actual money raised, making that information public. And some kind of goal showing what my expenses are. We’re not just talking direct project expenses, but the funding level needed to buy me out of my job and go full time indie.

There could also be a progress bar for each project I have announced, or each feature, showing how many hours are needed to complete them, how many hours are funded in the next week, and how many dollars need to be raised to fund more hours.

That way, you could see things like:

  • How much I’m making
  • How much I need in order to not have to work on anything but game development
  • How much the money you’re paying towards my projects is helping me to get them done
  • What projects I have announced
  • How much progress has been made on each project
  • How soon you can expect my next release to be

I’d also establish a relationship with the players of my games, through active blogging/tweeting of what I’m doing with the game projects, and where my time is going, why it’s not going to game development, and stuff like that.

I figure if people see the person creating the games, it will tend to humanize them, and make it clear that the developer isn’t a faceless corporation with huge revenues that won’t notice if their money isn’t added to the giant swimming pool of gold that we all splash about in.

Plus, if gamers know how much money a game is making, it will tend to disabuse them of the idea that wealthy corporations are raking in all kinds of money hand over fist, that they can’t possibly be hurt by people not paying anything to enjoy the games. And by tying the money paid directly to new projects, it’s easier for them to see what they’re getting for their money.

Actually, hell, I could turn it into a web service and let any indie dev sign up for an account, and they’d each have their own blog, their own projects page, and their own “fund this and it will happen sooner” button. Maybe an API that they can tie into their games, allowing them to meter usage so they can show “X number of people played this game X’ times in the last 1|7|30|365 days, and collectively have kicked in Y dollars to fund my next project, an average of just Y_avg cents per play, which means that I am in H financial health, and so my next project will get delivered in Z months.” And here’s an appreciation leaderboard showing the G most generous, loyal fans, thanks so much for your patronage.

I’d love to develop this idea into an actual business, but I’d also gladly work with an e-commerce services provider who could set up a system that would work this way.