Tag: fair use

Reacting to Homebrewer responses to AtariAge discontinuing ports

Recently, Atari Age announced that it would no longer sell IP-encumbered products in its store, and would be putting those titles that they planned to discontinue on sale through July 23 of this year.

The Zero Page Homebrew people recently put out a collection of statements by the various luminary developers in the Homebrew scene, and posted them on Facebook as well as covered the news on their video stream.

I have a lot of things to say about this stuff. So, in the spirit of copyright infringement for the common good, I’ve “stolen” the images of each developer’s statements, and offer my reaction to them below. I am nobody special, I just happen to care.

It’s good to see that Champ Games intends to continue developing original games and may pursue licensing rights for ports.

It’s unfortunately a bit naive of Champ Games to announce that they plan to continue to sell ROMs of their IP-encumbered ports. The ROM files are just as subject to IP infringement liability as a physical cartridge is.

I’m reading between the lines a bit, but it seems like Atari Age’s decision to discontinue these games is a pre-emptive effort on their part to limit their legal liability in the event they get sued, and not necessarily a result of any specific takedown effort on the part of the rights holders.

The thing about this is, Atari Age have been operating in this grey market area for many years, and ceasing operations doesn’t absolve them of liability for past transgressions. In principle, the rights holders could go after Atari Age and its affiliates, partners, etc. at any time.

In fact, Atari Age did have to take down Princess Rescue, an Atari 2600 de-make of Super Mario Bros, due to legal action from Nintendo, who are notoriously litigious and vigorous when it comes to protecting their IP.

Legal action can take many forms, from a simple “cease and desist” action to out-of-court settlements, to civil lawsuits to settle tort claims, to criminal charges that could result in fines, imprisonment, etc. There may be statutes of limitations, and a rights holder may or may not wish to take action to protect its IP. Without explicit permission, there’s always the risk that one day some IP holder will wake up and take notice, or decide that “now’s the time” and take action. This hangs like a sword of Damocles over the head of Atari Age and anyone else who chooses to ignore the legal risks of using IP without permission.

Atari Age have managed to operate for many years at a small scale, but the longer they continue to do so, the greater the chances of some IP owner taking notice and taking action. Given the potential liabilities, such action could very easily result in a complete shutdown of all operations, even for fully original works, simply because the IP owner could conceivably be awarded a judgement so large that the infinger is forced into bankruptcy, or due to a legal injunction.

This is true whether you sell or simply give away the works you’re infringing on.

So it does make sense for Atari Age to recognize these risks do exist, and rational for them to want to limit and minimize their exposure.

So the safest way forward would be to completely purge the all infringing material from the store and the website. Leaving IP infringing ROMs available for sale or free download still carries with it risk.

This is unfortunate, and it would seem desirable for the laws to change to somehow be more accommodating for public domain and free use/fair use involving abandoned or inactive IP. But changing the law takes a lot of effort, and we can’t expect that it will happen any time soon, if ever.

So the existing “proper channels” of seeking permission is really the only practical way forward. And even that is very difficult, making it practically out of the reach of many would-be developers, and if the IP owner says “no” there’s basically no recourse available.

Mogno’s statement alludes to the possibility of implementing the rules of a game (which are not copyrightable) to create a new/original work. In other words, a clone game. Conceivably, if you wanted to make a game exactly like Burger Time, you could make the same game but make it about something else, say making Tacos or Pizza, and give it a safe title that couldn’t be construed as diluting the Burger Time trademark or brand, something like Tacomania perhaps. This approach can work to a greater or lesser extent, but it almost never feels as satisfying as playing the “real thing”. That is to say, the trademarked name, characters, etc. all do have real value and contribute to the desirability of the game, and taking these elements out does take something away from the game.

Many of the homebrew port projects have chosen to “soft clone” a game, by making a game that looks and plays as close to the original as possible, but has a title which “parodies” the original, or is a “take-off” of the original title: eg, Qyx is a clone of Qix; RubyQ is a clone of Q*Bert; Galagon is a clone of Galaga; Robot War: 2684 is a clone of Robotron: 2084; etc. How much this actually affords any legal sanctuary for the clone developers is rather dubious, and would need to be tested in courts. Even if the defendants were to win in court, the costs of defending yourself in court is best avoided. Homebrew developers don’t have the legal resources to stand up to corporate legal teams with deep pockets.

Whether you call these games clones, ports, remakes, or de-makes, homebrew games that use unauthorized IP without seeking license are labors of love crafted by hobbyists and shared with the world in homage to a product that could not feasibly be brought to market as a traditional business venture. Many games adapted by homebrewers were never ported to the Atari 2600 at all, or if a port did get an official release back in the day, the homebrew scene can often produce a version of considerably higher quality.

Over time, these homage projects by hobbyists grew in scope and ambition, to the point where people were producing physical cartridges at a level of quality and presentation that rivaled the best professional efforts of real businesses.

This unfortunately blurs the lines between what might be considered “fan” projects and what would more appropriately concern a legal department of some rights holder of some dormant IP that they might feel needs to be protected lest they lose it.

The internet likewise removes many barriers, making it possible for communities to develop who have a common interest in sharing works, for these operations to scale, and to become easy to find — both by other developers and fans as well as IP owners and their lawyers — and easier to scale.

But rather than calling these games “ports” or “clones” or “ripoffs”, I’d like to advocate for calling them “covers”. Much like one musician will “cover” a song written by another artist, creating a new version of the song that has its own distinct merit as a work of art, we can have multiple game developers “covering” the classics, creating their own unique spin in their own signature style. This is something I would very much like to see embraced and encouraged in the video game world. The founders of Activision, the first third party game developer, thought of themselves as “rock stars” who wanted their names to become as famous as their games. Given that real rock stars often cover each others’ songs, I think it’s a great metaphor to extend to the video game industry.

Let developers cover other developers. Let developers remix and sample old games. Let artists do art with video games. Intellectual Property law needs to evolve to recognize the legitimacy of these long-standing and established traditions, and provide for their protection as part of “fair use”.

Games and art existed long before intellectual property law. There are many games which exist in the public domain today. Classic games like Chess, checkers, card games, etc. all can be made by anyone.

Anyone can paint a painting of a subject, interpreting it in their unique way and putting their unique spin or style to it. In many ways, the re-creation of a videogame, especially porting it to a different hardware platform, is an act of creation analogous to an artist painting their own version of some subject.

It is only human to wish to have the freedom to create such artwork. An idea for a game can be created in any number of unique ways, interpreted differently by different creators. And just as some subjects have been painted countless times by thousands of artists, software developers often have the same creative urge to express themselves by creating their own version of some video game. The difference is that video games tend to be commercial properties that are owned by corporations who want to protect their limited monopoly right granted to them by copyright and trademark laws. This stifles and stymies a would-be developer from creating their version of Pac Man or Tetris or Mario in a way that an artist is never restricted from creating their version of a bowl of fruit or Christ on the cross. But a game programmer yearns for the same freedom as the artist.

It would be nice if somehow we could have it, and exercise it without injury to some business that would be able to respond seeking legal remedy. Sadly there is very little to no such safe space for this sort of art to exist.

Squatters rights is a legal concept which says, in essence, that abandoned property can be claimed by someone who takes it.

We could really use something akin to this concept for video games.

There’s a movement to recognize abandonware rights, an idea that if a piece of software is released and sold for a time, and then is discontinued and no longer sold, that the public still has an interest in obtaining and using a copy of the software, indefinitely. This happens much sooner than the expiration of copyright, though, leaving “abandoned” products in a gray area where they cannot be legally obtained by a market that has interest in them, other than to obtain an existing (ie used) copy that was produced when the product was actively being brought to market by its owner.

Abandonware would cover the public’s interest to move video game works into the public domain once they exit the “First Market” (eg, when they are discontinued, perhaps after a certain period during which the original owner has declined to bring them back to the market) so that the public can continue to produce copies of the work in order to meet demand beyond what the “Secondary Market” (eg, used game stores, flea markets) is capable of satisfying.

But we also should lobby for legal protection for developers who would like to make their own version of their favorite game, or to create a version of that game for a system it was never officially released on, or to create variants on a theme introduced by a game, or to “remix”, or to tinker in other ways, such as bug fixes, “cheats”, and other “hacks”.

It’s not to say that the original creator or rights holder should stop having all rights afforded them under IP law, but that the balance currently favors them too much, and for far too long.

When I was in school, I learned that in the pre-industrialized world there was a system of apprentice and masters, of guilds, and so forth, and that was how knowledge of the trades and useful arts was handed down through generations. An apprentice artist would often be required to create an exact copy of a masterpiece painting, whether as part of their training, or to create duplicates of important works so that they could be enjoyed more widely. This was in a time before photography, before telecommunications, so the only way to copy a painting was by hand, and to do it required great skill to match the technique used in creating the original to a faithful degree so fine that it took an expert to know the difference between the original work and the copy.

I think a lot of programmers, game designers, and developers have an instinct to want to do something similar with video games, to be able not to copy them in the trivial way afforded by binary data systems supporting digital file copying, but to look at the original and learn the techniques of the master and attempt to replicate them faithfully to the best of their ability.

We like to do this as much as we like to work on our own ideas. Howard Scott Warshaw’s point that creating is very different from copying is of course valid, but both are legitimate pursuits for a creator. Some of us are very good at ports, while lacking the design skills to create new original works. But we should not devalue porting because of that, and we should not prohibit all ports that are not explicitly authorized by some “rightful owner”. For a time, certainly, the rights of the creator should prevail. But after some time, a limited time, the works should enter into the public domain. The current length of copyright for software, particularly video games, was adapted from print media, when it should have been modified to better suit the different nature of digital platforms.

To the extent that some in the homebrew scene will continue, with renewed focus on more new original works, that’s of course welcome and great.

But I would think that most people working on a new idea will want to explore it on a newer platform. There are homebrew projects to create original works for obsolete systems, and there always have been.

But if you were going to create something new and original, unless you wanted to take on the challenge of the additional constraints imposed by developing for outdated hardware with severely limited resources, you’d probably target modern platforms. So a lot of new/original development energy tends to be pointed at modern platforms.

Yet there’s an undeniable appeal to creating games for older systems — particularly taking some favorite, old game, that was developed contemporary to some old system, but never for that system, and “fill in the gap” by putting out a version ported to that system that had never existed previously, like Galaga or Robotron 2084, or were very poorly done, such as Pac Man, or a sequel to a great game like Pitfall or Adventure.

Another fun challenge for a developer is be to take a Sega Genesis game (such as Sonic the Hedgehog) and see if you can capture its essence and replicate it on a game console that predated it by something like a dozen years. Whether you have permission to use Sonic or not, that’s a fantastic challenge, and to develop such a game for private enjoyment, while not getting to share it with the world is a bit like running in the Boston Marathon without any spectators being allowed to partake in the excitement of the day.

Could Chris Spry have developed Zippy the Porcupine (the Sonic the Hedgehog Atari2600 de-make) privately and allowed the obscurity and anonymity shield him from Sega lawyers? Certainly. But wasn’t the public nature of the product something that enriched everyone who learned of its existence, or got to play it?

No marathon runner who runs today is the original messenger from Greek antiquity who ran to the city of Marathon with important news… But we don’t hold that against them, do we? And we who stand streetside observing the spectacle of this event are enriched by it, even though the first Marathon runner is long dead and doesn’t get any royalties from it.

I’ve already touched on these points, above. The “last chance” sale is a kindness to the fans who have kept obsolete video gaming platforms alive for decades after they exited the market. But it’s not free of legal liability, and could in fact expose Atari Age to greater risk due to the attention the sale is getting, the increased awareness of the topic of the homebrew scene and of its intersection with IP law.

It’s a bit arbitrary where the line is to be drawn with respect to what’s a liability that needs to go, and what isn’t. Why isn’t Medieval Mayhem and Space Rocks a part of the sale? Medieval Mayhem was an Atari coin-op game for the arcade, back in the 80s. How is an unauthorized remake of it on the 2600 it not IP-encumbered? Space Rocks is just a really well done port of Asteroids, surely it assumes some non-zero amount of risk as well.

DeCrezenzo is a titan of the homebrew scene, and if he is indeed leaving due to this, it is truly a sad thing. If there was a Hall of Fame for homebrew developers, he’d be a charter member. He’s had a long “career” in the scene, with many, many contributions, so even if he simply retired, he’ll have at least left behind a monumental legacy… of games which sadly will no longer be made due to the legal realities that encumber this hobby.

If there’s a positive thing to be taken away from this, it’s that there are developers who will continue to remain in the scene, and will shift their focus to developing new game ideas. This is exiting.

As much as we like the familiar games we know, that never existed on a home console, or were never done justice in their official home port, there’s still tremendous potential in the system — even 45 years after its release, and 30 years on from its official exit from the primary marketplace.

That’s nothing short of remarkable, and if the new original games that we’re sure to see in the coming years stack up as well as the remakes and ports that we were fortunate to get to experience, the future is as bright as ever for fans, enthusiasts, and collectors of classic gaming consoles.

Long live the Atari 2600. And long live Atari Age!