sort of legal roms question

[londonbabe]

I was browsing through some random thread and read that a lot of the companies that made arcade games are no longer extant.

Now I'm sure this is an old old question, but I'm idly wondering so I might as well ask!

I know a couple of roms have been declared legal by whatever means that happens, and was wondering whether there's some kind of list of roms that are "orphaned" by the demise of their parent company and if so have any avenues been pursued towards finding out if these roms might be made legal somehow.

I've seen that happen quite a lot with the 8-bit computer emulation scene, where a great deal has been declared as "abandonware" by the authors, but I don't know how that works if the only traceable 'author' is not around any more.

[GoPodular.com]

Rather than closing their doors and "abandoning" their stuff, arcade manufactureres often sold their stuff off.  Then that company sold it, then that company sold it, etc, etc.

Some of the ROM's probably could be considered abandonware, but with all the sales contracts dividing up companies 1000 times, it's pretty complex to figure out if anyone does in fact "own" the ROM or not.

The ones where ownership are clear are coming back on Xbox/Wii/PS and PC.

[RayB]

Yeah, there's no such thing as truly "abandoning" rights to IP. A company goes out of business, their assets get sold off. Whether the buyer of the IP does anything with the IP is their right, but it doesn't grant any of us the right to use it.

A great example is the coin-op company "Universal" which disappeared in the early 80's. Well, many of their games are now owned by Ultracade.

The only games that have been truly authorized for free use and distribution is Robby Roto, and games for the Vectrex. (Might be a couple others, but I'm not aware of them).

[GoPodular.com]

A great example is the coin-op company "Universal" which disappeared in the early 80's. Well, many of their games are now owned by Ultracade.

Not anymore.  Which makes it an even better example.   

Ultracade has changed hands/done the bankrupt thing a few times.  Now I think it is only a brand name.  IIRC under the buyout terms, Virtual Technologies Inc. (dba Global VR) took the IP they wanted and sold the rest off to repay creditors.  I don't recall if Ultracade or Foley owned the TM on Mr. DO!, but if you go to the USPTO.gov website, the Mr. DO! trademark stuff has recently changed hands.

So who owns the ROM?  Whoever owns the trademark for the title?  What about the copyright on the artwork?  What about the copyright for the game code?  Was that ever sold?  Did it die with Universal?  Who knows.  If there's enough money to be made, eventually someone will drag it to court.

IMHO, owning the trademark to use the name has zero to do with being able to sell the old ROM's.  If Sony let the trademark on "Playstation" lapse, could I re-file the trademark and start producing Playstation's for retail sales?  No.

[Chris]

It also depends on the contract with the programmer, as some older contracts specified that the rights revert to the programmer after sales drop below a certain level (this is more similar to a book publishing contract than a modern IP work-for-hire contract).  This is how Robby Roto got released.

[Stingray]

I don't recall if Ultracade or Foley owned the TM on Mr. DO!

Foley claimed that he did, but we all know how trustworthy that source is.

-S

[RayB]

A great example is the coin-op company "Universal" which disappeared in the early 80's. Well, many of their games are now owned by Ultracade.

Not anymore.  Which makes it an even better example.   

Ultracade has changed hands/done the bankrupt thing a few times.  Now I think it is only a brand name.  IIRC under the buyout terms, Virtual Technologies Inc. (dba Global VR) took the IP they wanted and sold the rest off to repay creditors.  I don't recall if Ultracade or Foley owned the TM on Mr. DO!, but if you go to the USPTO.gov website, the Mr. DO! trademark stuff has recently changed hands.

So who owns the ROM?  Whoever owns the trademark for the title?  What about the copyright on the artwork?  What about the copyright for the game code?  Was that ever sold?  Did it die with Universal?  Who knows.  If there's enough money to be made, eventually someone will drag it to court.

IMHO, owning the trademark to use the name has zero to do with being able to sell the old ROM's.  If Sony let the trademark on "Playstation" lapse, could I re-file the trademark and start producing Playstation's for retail sales?  No.

Who said anything about trademarks? You're the one who looked up trademarks and are now making assumptions. Maybe you don't understand what "IP" is.  It stands for "intellectual property", and that includes (in the case of a game) all the programming, artwork, graphics, etc related to that game.

When companies croak, their assets get auctioned off, inlcuding IP. So of COURSE the copyrights and properties were transferred/sold. There doesn't have to be a public record for that to happen. That's all behind the scenes business transactions. Why would any company sell off a trademark and just abandon everything related to it?

You're making the point that maybe one company owns the trademark now, while the actual "rom" code went to someone else. Hey, that's possible, but it only underlines my point: All this old stuff is owned by SOMEONE, SOMEWHERE. Whether they choose to enforce their rights or not is entirely up to them. But "abandonware" is just a misnomer created by pirates trying to look legit.

[shardian]

...So has anyone on here ever tried to track down th owners of some old games to try to buy the rights to them? It would be really neat if we could all band together to get some games and then turn them over to public domain.

[RayB]

That's a good question Shar... I would imagine Dave Foley did hunt for rights holders, considering he wanted to put up "iroms", but then again, maybe he was going to pursue an alternate method (see below)...

I found this general information page (UK gov): http://www.intellectual-property.gov.uk/faq/copyright/find_owner.htm

It basically reinforces what I've already stated, but the last paragraph is really interesting. (But what if you are operating on a "free" basis? Any % of free is zero. Could mean trouble if someone sues).

It's worth looking into though... Setting up a website database and updating the rights status for each. A public database like that might provide an impetus for some rights holders to come forth, but then there'd be much red tape to verify if the claim is legit or not. Not to mention, rights holders would have to hear about the site in the first place and care enough to come forward. I bet many IP holders are not even aware they have certain IP rights (for example, if it was part of a larger transaction and they were interested more in X, they might not actively know they also own Y).

It's all alot of hassle to go through when there is no business model around the project.

[RayB]

WOW, the copyright office is still operating in the dark ages! I just tried their copyright search system, and it uses pre-web technology. (Telnet!) It's like playing a text adventure!

As an example I looked for LADYBUG by Universal. I found it, but there's no mention of transfers or anything. I'm not even sure if a transfer of ownership would even appear in these records.

If anyone wants to hunt further, the registration # is PA-131-915
"Ladybug", registered by "Universal" in 1981.

[GoPodular.com]

I'm aware of what IP is.  That's why I brought up the TM portion of it.  It's only part of the IP equation.  I can probably explain my point better with an example:

Assume somebody took over the IP of Universal.  If it wasn't purchased outright, it would default to their creditors.  The investors don't make games, so the TM is forgotten and eventually cancelled out of the system.  Until...

Someone notices that the trademark has expired.  They fill out the required papers, send in a check and get a letter saying they own the trademark.

Who owns the ROM?  One person has company buyout paperwork in the back of the closet, one has TM paperwork front and center.  Unless someone pulls the paperwork out of the closet and brings it to court, the TM owner can do whatever they want.  Until they get caught anyhow.

Unless you've read every contract, including employee contracts, it's a gamble to assume you own it.  That's why the ROM's that are being sold are ones where ownership is clear or the seller is shady.

LOL.  The copyright office IS the dark ages.

[elvis]

The only games that have been truly authorized for free use and distribution is Robby Roto, and games for the Vectrex. (Might be a couple others, but I'm not aware of them).

http://www.mame.net/downmisc.html

Gridlee as well.

LOL.  The copyright office IS the dark ages.

Amen to that. 

Problem is copyright in it's current form was designed to stop the redistribution of PRINTED material, which is PHYSICAL in nature.  ROMs and other electronic data (including digital music, movies, etc) are not physical.  Copying any electronic data from one source to another makes a perfect digital replica, and is not "stealing" per se (in the sense that stealing removes an item from one person's possession and gives it to another).

Likewise one could argue that I have not actually copied anything at all.  The magnetic sectors on my harddisk merely realigned to per chance match the alignment of someone else's hard disk.  Those sectors were there all along, and I have gained nothing.  My hard disk is no "heavier" for the addition of information to it.  Technically speaking I could write a program that randomly re-aligned all the magnetic sectors on my harddisk.  Given enough iterations and time, I would eventually have made a copy of all data currently stored electronically in the world by pure chance.  Scary thought.

As you can see, "modern" copyright law is grossly inadequate for the digital age.  The bigger problem at hand is the fact that law takes a very long time to change, and in particular the people who are responsible for such things don't like change, as they are quite happily making arseloads of money while everyone is busy taking everyone else to court.  Why would anyone involved in the legal profession want to kill off their cash cow?

I don't see a solution to the problem appearing any time soon, especially not with the way the corporate world is headed, and how it currently influences the political world.  The Orwellian future is nigh.

[RayB]

I'd like to hear your solution Elvis. What would be better than the current copyright system?

Your digital argument is quite flakey, considering I can do the same minute analysis of ink droplets being arranged on processed trees.

The length of copyright is flawed. The DMCA is flawed. But I hope you aren't one of these nuts that argues there should be no copyright on anything.

[WunderCade]

It used to be that imitation was the sincerest form of flattery. That old axiom has evolved, now $$$ is sincerest form of happiness... "Screw imitation, you just stepped on my money!"

[londonbabe]

I don't know much about copyright law in various countries, but I would assume that the rom code is copyrighted, and the logos are trademarked. That's potentially two separate sets of rights to sort out. You may also have a third copyright on characters and designs. Maybe another on sounds as well.

The first thing to do is to find out what the expiry on the different types of copyright is and whether its possible to extend them.

The idea of some kind of wiki database is appealing. It could be set up to identify those games for which ownership is unknown, or those that don't belong to huge corporations, and then approaches could be made to persuade the owners to come forward and/or release into the public domain.

[shardian]

You see, there is a catch to this: If you've ever known a true business person, they tend to decide to hold onto things/ask for money once they find out someone is interested in something they have...even things collecting dust they didn't remember owning.

[MovingTarget]

...So has anyone on here ever tried to track down th owners of some old games to try to buy the rights to them? It would be really neat if we could all band together to get some games and then turn them over to public domain.

If someone here starts up a campaign to buy the rights to some games I would totally be willing to throw some money at that.  How cool would it be if this community actually bought up the rights to some of these games and made them free to use and maybe charge some small fee for commercial use so we could then purchase more titles?

Doubt it will happen but if it does I'm behind the idea!

[GoPodular.com]

I'd be behind the idea as well, but as soon as it gets listed in public, somebody is going to try and capitalize on it.  We'd do the work with the intention of making them free, they finalize the idea and charge money.  As a control manufacturer, I'd love to point customers to a pile of freely available ROM's.  I'd benefit more by having them free, BUT... someone else may benefit more by starting a fee based service.  You wouldn't want to help them by posting the info in public.

The biggest problem is that eventually somebody will sue, claiming they have the rights to distribute the ROM.  It wouldn't matter if they were right or wrong if you don't have the money to go through court.

[Chris]

And ownership of the ROM isn't enough.  If the game features licensed characters or trademarks, like Indiana Jones or NBA Jam, distribution of the game may be restricted by the terms of the license.  Rarely does a license turn over unlimited rights to the licensee.

[GoPodular.com]

True.  Very true.

I'd imagine the NBA contract read something like:
"Terms of this license is restricted to... resale in arcade cabinet labeled NBA Jam... commercial use... manufactured by... distributed by... all other uses are prohibited."

[elvis]

I'd like to hear your solution Elvis. What would be better than the current copyright system?

Your digital argument is quite flakey, considering I can do the same minute analysis of ink droplets being arranged on processed trees.

The length of copyright is flawed. The DMCA is flawed. But I hope you aren't one of these nuts that argues there should be no copyright on anything.

Absolutely not.  Copyright is a very important process in ensuring that inventors are given the time they need to fairly bring their product to market, and prevent other people from using the exact same system/process unfairly.

Emphasis on words like "fairly" and "unfairly".

Current copyright laws aim to be anti-competitive.  They don't just stop another group making the same item/system/formula/whatever, they stop them competing AT ALL.  People holding copyrights are abusing them and the legal process itself to extend them where they don't belong.

The grand irony of it all is that copyright was designed to give inventors a fighting chance.  Today it's used by the rich and powerful to stifle invention and hold technology back.

Just because I think something is flawed doesn't mean that I think it should be stopped all together.  Don't assume I'm that black and white about it.  Copyright needs to go back to grassroots and people need to remember why it was ever conceived in the first place.  The points you touch on above are a good starting point.  Decreasing the time frame of copyrights (particularly in such a fast moving industry as technology) as well as scrapping the blatantly anti-tinker laws like the DMCA would be a damned good start in fixing some of these issues.

I'm a firm believer in capitalism, but not at the cost of society.  Call me a "socialist capitalist" if you like, but copyright needs to serve the people fairly across the board, and not only those with all the money.  I believe in getting rich by working hard, not by being an arsehole and stopping your competitors from even being able to try in the first place.

As for my "flaky" digital argument - the point is that a paper/ink scenario costs money.  In my little mental game above where I propose I could constantly re-arrange my hard disk sectors over and over again and potentially make a copy of all the data in the world past, present and future - this costs me nothing in terms of physical resources (other than my initial hard disk outlay).  Again, you can't apply a "ink and paper" analogy to anything digital (doing the same mental game with the printing press would cost you MILLIONS in paper and ink). 

The problem with law in general is that the vast majority of the laws in developed countries dealing with digital technology *ARE* based on paper and ink, or other archaic technologies.   Again, I have no desire to destroy the copyright system all together, and I don't condone copyright infringement in the slightest.  But the simple fact of the matter is that the laws governing copyright are out of date, and need updating.  Things like ad-skipping, digital format shifting, and other technologies where are perfectly fine are being held back not because of progressive laws, but because of archaic ones.  These need to be updated to reflect what's really going on, and not some outdated and simple incorrect analogy of technology today based on the technology of 100 years ago.  We're making laws today on oranges based on what we used to do 100 years ago with apples.

End rant.  Thank you for listening.

[Chris]

Absolutely not.  Copyright is a very important process in ensuring that inventors are given the time they need to fairly bring their product to market, and prevent other people from using the exact same system/process unfairly.

Actually, that's patents.

[elvis]

Absolutely not.  Copyright is a very important process in ensuring that inventors are given the time they need to fairly bring their product to market, and prevent other people from using the exact same system/process unfairly.

Actually, that's patents.

Actually, it's both.  Hence me saying it is a "process" and not a single step.  I'm well aware of the differences between the two.

But argue on semantics all day if you like.  That seems to be all anyone every does these days, instead of actually moving to fix the bigger issues at hand.  Too many lawyers clogging the system with petty arguments.  And lets face it, as long as they're getting rich they aren't going to care about the bigger picture.
 

[Chris]

Actually, it's both.  Hence me saying it is a "process" and not a single step.  I'm well aware of the differences between the two.

But argue on semantics all day if you like.  That seems to be all anyone every does these days, instead of actually moving to fix the bigger issues at hand.  Too many lawyers clogging the system with petty arguments.  And lets face it, as long as they're getting rich they aren't going to care about the bigger picture.
 

Well, it's not just semantics because of the huge difference in time limits.  I think most of the "classics" patents have expired.  The copyrights keep getting extended, though... they won't expire in our lifetimes.    The system is in pretty serious need of reform!  I don't think a lot of the patent/copyright examiners are really versed in software issues.

[elvis]

I don't think a lot of the patent/copyright examiners are really versed in software issues.

I think you are being very diplomatic when you say that.  I would go as far as to say they are utterly clueless when it comes to anything remotely involving software and/or digital technology.

[Patent Doc]

Current copyright laws aim to be anti-competitive.  They don't just stop another group making the same item/system/formula/whatever, they stop them competing AT ALL.  People holding copyrights are abusing them and the legal process itself to extend them where they don't belong.

The grand irony of it all is that copyright was designed to give inventors a fighting chance.  Today it's used by the rich and powerful to stifle invention and hold technology back.

Survey Says.....WRONG!!!

Elvis

I know this is what most people believe and I really am on your side with this, but the copyright scheme was originally developed as a censorship measure with the passing of the Statute of Ann (Bible publishers didn't want mass publication by anyone so they sought to prevent it).  The confusion comes in with the US Constitution where in Article I section 8 we have the clause idicating the Congress has the power to pass laws to promote science (oddly copyright is the science) and the useful arts (ie patents).  Copyrights only involves information fixed in a tangible medium.  You can not copyright a process or system only the expression of the process or system.  You can, however patent a system or process.  Don't confuse your IP.

In PATENT law there is a true quid pro quo with respect to patent term.  You the patent owner/inventor (not the same person necessarily) are given a limitted monopoly for 20 yrs from earliest filing to exclude others from making or using your invention (note this doesn't give you the right to make it, just exclude others) in exchange you make the invention available to the public by publishing the patent application.  Copyright has no such quid pro quo.  I'll give you a hypothetical example.  Lets say that  Pres. Clinton wrote to Monica.  These letters would have a copyright of life plus 70 yrs eventhough they were never published.  Where is the quid pro quo?  It doesn't exist. If you don't like the term extensions that have happened in recent years, blame Europe...in particular Germany.  when copyright laws were harmonized, rather than stick with a reasonable term, the powers that be decided that it would be unfair to end a copyright term earlier than was anticipated and too confusing to make a transition or grandfather older works so they just made everyone get the longest term (life plus 70).  The US actually didn't sign on to the berne convention until much latter and only when it made economic since to sign the TRIPPS agreement (this was an economic agreement having little to do with IP).  Though I agree that copyright should be for maybe just the economically useful life of the work and then donated to the public, how would one make that determination?  WHo should make it? 

While I'm on my soap box, there is no such thing as abandon where as RayB pointed out.  The copyriht owner or author (whoever has the rights) has merely chosen not to enforce it.  THey could, in fact, enforce tomorrow and there copyright would stand up to the courts.  This happens all the time with situations where the original author died and now the hiers own the work.  All previous agreements are potentially worthless if the heir wants to change them.  Not to mention the heir could enforce previously unenforced infringements.  THere is a famous case that deals with this situation but I'd have to look up the sight.  Bottom line, "abandonware" copyright is no different from any other unenforced copyright...infringe at your own risk and assume the consequences if they come.

By the way IAAL in IP at that, and I can assure you that I am not rich. But I am apparently long winded and looove to hear myself talk (er type).  Damn I am a wind bag like all the other attorneys.

[Patent Doc]

I should also add that European patent law does not provide for software patents, so copyright is the ONLY protection here.  In the US, since we do allow for software patents, I'd love to see the denial of copyright for software.  But unfortuantely, global harmonization of copyright laws is preventing that from happening.  Too bad really as no copyright in software (but allowing patents which have a 20yr term)would clearly be the more equitable approach to such a dynamically changing field (which I believe was the point of Elvis' rant)

[GoPodular.com]

So if we take the Mr. DO! example and split it into it's various IP parts:

ROM: Patent on hardware (if it was filed), Copyright on code.
Character: Copyright (automatic).
Title: Trademark (it was filed).

Right?  That's how I've always boiled it down.

[RayB]

So if we take the Mr. DO! example and split it into it's various IP parts:

ROM: Patent on hardware (if it was filed), Copyright on code.
Character: Copyright (automatic).
Title: Trademark (it was filed).

Right?  That's how I've always boiled it down.

That's more or less correct, though the patent part would depend on whether or not their hardware design was unique and/or improved on pre-existing processes.

Trademark also applies to the Logo image of the title.

[GoPodular.com]

So for ROM distribution, you need the copyright rights to the code, not the trademark for the title/logo.  Likewise, the trademark for the title/logo would only let you use the image, not the ROM.

That's why I question the legitimacy of claims made simply by renewing an expired trademark.  The trademark section of the USPTO can't grant rights to the ROM code.  By reregistering an expired trademark, you'd get the "wrapper" and not the "contents".

[Patent Doc]

So for ROM distribution, you need the copyright rights to the code, not the trademark for the title/logo.  Likewise, the trademark for the title/logo would only let you use the image, not the ROM.

That's why I question the legitimacy of claims made simply by renewing an expired trademark.  The trademark section of the USPTO can't grant rights to the ROM code.  By reregistering an expired trademark, you'd get the "wrapper" and not the "contents".

You are correct sir.  In the case of Mr. Do, the TM is only for the use of the name Mr. Do or its stylistic representation.  The game is subject to copyright and/or patent protection. OK, well not patent protection as that has to be dead by now.

[RayB]

yeah I think I'm realizing now how some of these companies operate... If you read the page I linked earlier... the last paragraph that mentions what can be done when all efforts to find a copyright owner have been exhausted: Just put money aside for the day when the owner comes knocking (if ever).