Tag: intellectual property

Copyright, contractual obligations screw Ms. Pac Man out of existence

Arcade
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Ms. Pac Man has an interesting history.

Pac-Man, the original game, was developed by Namco in Japan, and distributed by Midway in the United States, and was a massive, massive hit — the most popular arcade game of its day, and still one of the most popular arcade games of all time.

The videogame industry was different 40 years ago than it is today, and video games were still new enough that a lot of the intellectual property rights weren’t yet established in law, leading to unsettled (and often unasked) questions.

As a result, there was a sub-industry of third-party mod kits for arcade games, which gave arcade proprietors a way to renew interest in older games that had waned in popularity. It wasn’t illegal to modify an arcade cabinet that you owned, and so over time kits were developed by third parties to do just that.

One of the companies producing these hardware mod kits, named GCC, hacked Pac Man to create an unofficial “sequel”. To avoid trademark infringement, they named it “Crazy Otto” at first, but that wasn’t enough to avoid a lawsuit. In the end, a settlement between GCC and Namco turned Crazy Otto into an official sequel which became Ms. Pac Man.

GCC’s contract entitled them to royalties on each Ms. Pac Man cabinet manufactured or sold by Midway-Namco. Ms. Pac Man was a smash hit, just as popular as the original Pac Man. Everyone got rich and everyone way happy.

Ms. Pac Man went on to have a long life, and has been ported, re-packaged, and re-released on many platforms over the years, but GCC’s contract entitled them to royalties only from “coin-op cabinets”. Twenty-five years later, new cabinets were produced for the anniversary, and hybrid Galaga/Ms. Pac Man cabinets were a popular sight in bars in the mid-2000s.

By this time, the executives now running Namco had forgotten about the contract with GCC, who reminded them of it by suing for their royalties. Namco paid what they owed, and weaseled out of paying on arcade cabinets made for home use, which didn’t have coin slots, since the contract wording specified “coin-op cabinets” (which was simply what arcade machines were called at the time the contract was signed). And then, to avoid ever having to pay another royalty to GCC again, Namco wrote the Ms. Pac-Man character out of the picture, replacing her with other female pac-man characters such as “Pac-Girl” and “Pac-Marie”. Thereafter, future Ms. Pac-Man re-releases only came out on platforms not covered by the GCC contract, so Namco wouldn’t have to pay the royalties.

It just goes to show the level of sheer greed that companies have when it comes to paying creators and ownership of intellectual property. If the company can make money without having to pay the creators, they will do that. Granted, GCC wasn’t producing an authorized work, and this could have colored the relationship. But considering how much money Ms. Pac Man earned for everyone over the years, you’d think that those profits could go a long way toward smoothing over any rough spots in the relationship. Apparently not.

GCC later sold their ownership rights to Ms. Pac-Man to AtGames. If they had instead sold to Midway-Namco, this might never have been an issue. But because of how things worked out, one of the most iconic videogame characters of the 80s golden age of the arcade is basically sidelined indefinitely. Because contested or jointly owned intellectual property rights are that much of a legal pain to negotiate around that it’s better to just kill the property and make no money from it at all than to try to work out agreements for sharing revenues. How sad.

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.

Intellectual property value of social networking referrals

internet
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One thing I have noticed over my years of using the social web (fb, twitter, livejournal) that human culture instinctively places a value on linking to things in a way that I find odd. There’s a type of “intellectual property” that people conventionally recognize as a sort of matter of natural course. I don’t know how else to describe it than that.

In real value terms this sort of intellectual property is very low value, but in social etiquette terms, the value is more substantial. The phenomena is one of credit, but it’s not credit for authorship, rather it is credit for finding and sharing. If you find something cool and blog about it, and you’re the first one in your little social group to do so, you get some kind of credit for being on top of things, being cool enough to know where to look, lucky enough to be in the right place at the right time, or whatever. It’s not much more than that, but somehow if you post the same link and are not the first in your social group to do so, and don’t acknowledge the coolness of the person who you saw posted it first, it can ruffle feathers, as though people think you’re trying to be the cool, original one and are stealing other people’s “cool points” by not acknowledging where you got your cool link from.

It’s funny though since posting a link is an act of evaluation (“I judge this content to be worthy of your time, so I’m sharing it.”) rather than an act of creativity (if you want to be really cool, go author some original content and see how many people you can get to link to that.)

What I take from this is two things:

  1. having good enough taste in something to make a recommendation which one of your friends will pass along to others is an important, valuable thing in itself. Having this sort of taste implies that you are cool.
  2. Getting there first is important, OR perhaps acknowledging who was cool enough to turn you on to something that you found cool is important.

One of the things about Facebook that I like a lot is that they get this, and implement it in such a way that it basically works automatically. You can click “Share” and it just handles crediting who you got it from in a behind the scenes sort of way that forces you to follow the etiquette convention automatically, thereby avoiding being a leech or douchebag. On the other hand, in Livejournal, this is a somewhat useful way to discern who among your friends is a douchebag, since if they don’t think to credit someone for showing them something that you’ve already seen before, you know they’re not with it, or at least aren’t following their friends-list all that closely.

 

Another interesting thing about this is that, depending, sometimes people will just post a link to something without any comment, while other times people will post and add their thoughts to it as an annotation. Sometimes no comment is needed, or is implied by the context of how you know your Friend and what they are about and why they would be posting that link. Other times, people will post their thoughts and sometimes write something reasonably lengthy and thoughtful on the subject that they are linking to. This tends to happen much more on Livejournal than on Facebook or Twitter, which are geared toward more structured, but forced brief content. I think that Livejournal tends to encourage more expressive posts because people tend to use pseudonyms and write with somewhat more anonymity than they have with Facebook, where most people use their real name. I do like the way that Facebooks conversations of comments seem to flow very nicely once a topic hits someone’s wall. It’s also interesting to see how different groups of friends will come to the same original linked content and have different or similar conversations about it.

I think it would be fascinating to be able to visualize through some sort of graphic how sub-circles of an individual’s friends might converge though common interest in some topic. In my own Facebook experience, it has been interesting to see people I know from elementary and high school mixing with people I knew from college and afterward, and from various workplaces, and so on. I think it would be really interesting to see this sort of interaction on a very large scale, sortof a Zuckerberg’s eye view of what’s going on in various social circles that occupy Facebook. I can mentally picture colored bubbles occupying various regions of space, and mixing at the edges, colors blending like wet paint.

I also think it’s interesting how the constraints and style of the different social sites shape behavior and the characteristics of the groups who use them. Facebook users in my experience have tended to be more sedate, dryer, and thoughtful, though not always. Substantial numbers of my friends seem to be comfortable goofing and making fools of themselves, or being outspoken to the point that they run the risk of offending people of a differing political polarity. Twitter seems to be a land of important headlines mixed with one-liner witticisms and the occasional bit of Zen. Livejournal seems to be more private, insular, and diary-ish. I almost said “diaretic” but that sounds a lot like another word which, actually, might be even more appropriate, if disgusting. Discussting? Heh.

OK, I’m clearly blogging like I’ve been up for too long, and I have. But I hope to revisit and put more thought into these matters and see if something materializes out of that that is worthy of linking to and discussing. This could end up being someone’s Social Media studies PhD thesis:P