More Foley News...

[FrizzleFried]

http://www.gamasutra.com/php-bin/news_index.php?story=24691

Just a piece...

G-Mode, Jaleco, SNK Playmore and Tecmo representatives have now publicly commented to Gamasutra, and are accusing Ultracade Technologies former owner David R. Foley of piracy. These parties are now claiming that Ultracade arcade game cabinets and game packs contained many titles that were never legitimately licensed for Ultracade.

...HOLY CRAP that is a read.  Somehow I think Mr. Foley's in a little over his head with this one?  Dunno.... 

[Ginsu Victim]

Still reading....

This is good stuff. Thanks, man.

[Malenko]

I'll refrain from any sort of insightful comment, since he'll just ---smurfette--- and moan until the post is deleted.

I hope he gets what he deserves.

[shardian]

That was an interesting read. Wow. That's all I have to say on that. Foley can defend himself if he wants. It should be a simple matter to supply legal documentation of his licensing agreements. There would be paper trails, money trails, etc.

The most interesting part of the article deals with the copyright applications for Unversal games, such as Mr. Do!. Very, very interesting....

[isucamper]

There has to be more to this story.  Why would anyone think they could get away with that? 

Also:  This could have bad reprecussions for communities like the one we have here.  Have copywrites of old arcade ROMs ever been in the legal limelight like this?  A lot of people justify their MAME cabinets by saying "Those companies don't care about those old games from the 80s and 90s."  Well, here we've got 4 companies on record saying they do care. 

[CheffoJeffo]

Interesting ... certainly shed some new light on things ...

[ahofle]

There has to be more to this story.  Why would anyone think they could get away with that? 

Yeah I would be shocked if he didn't already have some documentation or legal loophole that would enable him to resell the games.  He's certainly no fool. 

On a side note, I find it hilarious that he allegedly started a company called Toaplan.  "All your MAME trademarks are belong to us!"

[shardian]

There has to be more to this story.  Why would anyone think they could get away with that? 

People get busted for white collar crimes every day. If even a tiny fraction of what is reported on in that story is true, Foley could be in really serious trouble. That reporter has done his homework.

[Ginsu Victim]

Also:  This could have bad reprecussions for communities like the one we have here.  Have copywrites of old arcade ROMs ever been in the legal limelight like this?  A lot of people justify their MAME cabinets by saying "Those companies don't care about those old games from the 80s and 90s."  Well, here we've got 4 companies on record saying they do care. 

But we aren't selling them. Big difference.

He made a LOT of money off other companies' IP.

[isucamper]

Also:  This could have bad reprecussions for communities like the one we have here.  Have copywrites of old arcade ROMs ever been in the legal limelight like this?  A lot of people justify their MAME cabinets by saying "Those companies don't care about those old games from the 80s and 90s."  Well, here we've got 4 companies on record saying they do care. 

But we aren't selling them. Big difference.

He made a LOT of money off other companies' IP.

I'm just saying.  Its drawing attention to the copywrites of these old games. 

[Ginsu Victim]

We survived the IDSA and Doug Lowenstien in the late 90s. This too shall pass.

[RayB]

Wow, great in-depth article, but a couple things still don't "fit".

Ultracade machines were sold at the same distributors as other arcade games, so it's not like it was flying under the radar. They also showed their machines at the same tradeshows, like AMOA. Again, really not under the radar.

Where were the lawyers through all this? You don't negotiate licenses without a lawyer. I guess one angle could be that they didn't use any, and thus their gross ignorance, indifference and distorted view of copyright and trademark law.

Remember all the talk about putting together iROMs ? How could something like that have any hope of being pulled off without it being legit?! (ok fair enough, it never came to be)

It's just weird. I don't see how one could have done everything alleged and NOT expect to get caught. If you're going to be that bold (and stupid?) you might as well take the Bernie Madoff path and live it up with other peoples money (hypothetical--im not condoning this). Why waste time with this arcade stuff just to scrape together an average living??

So basically what im saying is... the facts so far don't make sense yet.

[CheffoJeffo]

I'm just saying.  Its drawing attention to the copywrites of these old games. 

Don't worry ... from what I hear, this is all the kewl kids are saying:

Just because you work hard on something, doesn't mean you have the right to anyone's money.

I'm sure the companies will see the wisdom in those words.

 

 

[shardian]

It's just weird. I don't see how one could have done everything alleged and NOT expect to get caught. If you're going to be that bold (and stupid?) you might as well take the Bernie Madoff path and live it up with other peoples money (hypothetical--im not condoning this). Why waste time with this arcade stuff just to scrape together an average living??

First off, buying a 2.3 million dollar house is hardly 'scraping by'. Secondly, many folks knew what Bernie Madoff was doing, and tried to blow the whistle on him for years. The SEC did not do their job.

So why not do what he did? What better forum to do it than arcade games - of which noone gives a ---steaming pile of meadow muffin--- for the most part about anymore anyways?

I do agree though, that it is a simple matter to produce documentation and money/paper trails for licensing. It is not something done with a handshake.

I have sent an email to Global VR to make them aware of this article, and to possibly get comment from them on the legality of their game licensing. Considering they have license contracts with major name brands (NASCAR, Fast & Furious, etc) I have to assume their paperwork is in order. Personally, I like many of the Global VR products. They are pretty much the last horse in the race for arcades. They need the opportunity to distance themselves from this accusation if at all possible.

[shardian]

And on the Global VR note, the mere idea of a sale of the Ultracade system would almost certainly have to include the relevant licensing contracts. What kind of lawyer would sign off on that purchase without them?

[shardian]

Prompt response from Global VR:

We have read the article, thank you.  We cannot comment on Mr. Foley but
I can assure you that all titles in Global VR's Global Arcade Classics
are officially licensed.

Regards,

Debbie Minardi
VP Business Development

[Ginsu Victim]

Good work, shards.

[RayB]

Still want that pinball device? 

[isucamper]

Don't worry ... from what I hear, this is all the kewl kids are saying:

Just because you work hard on something, doesn't mean you have the right to anyone's money.

I'm sure the companies will see the wisdom in those words.

 

 

That is so true!  That is really some smart thinking.  Who said that?  He must have been smart.

[Haze]

Prompt response from Global VR:

We have read the article, thank you.  We cannot comment on Mr. Foley but
I can assure you that all titles in Global VR's Global Arcade Classics
are officially licensed.

Regards,

Debbie Minardi
VP Business Development

Their current lineup is however greatly reduced, and features none of the games for which they allegedly had no licenses.

[shardian]

Prompt response from Global VR:

We have read the article, thank you.  We cannot comment on Mr. Foley but
I can assure you that all titles in Global VR's Global Arcade Classics
are officially licensed.

Regards,

Debbie Minardi
VP Business Development

Their current lineup is however greatly reduced, and features none of the games for which they allegedly had no licenses.

This also could shed some light on why Global VR could have possibly stopped payment to Foley. I know if I found out I paid for phony licenses, I wouldn't send another dime.

[Hoopz]

Prompt response from Global VR:

We have read the article, thank you.  We cannot comment on Mr. Foley but
I can assure you that all titles in Global VR's Global Arcade Classics
are officially licensed.

Regards,

Debbie Minardi
VP Business Development

Their current lineup is however greatly reduced, and features none of the games for which they allegedly had no licenses.

This also could shed some light on why Global VR could have possibly stopped payment to Foley. I know if I found out I paid for phony licenses, I wouldn't send another dime.

I would imagine that the company did due diligence before acquiring Ultracade.  That's definitely one of the items that would (should?) have been researched.  Their lawyers and accountants go in and review all pertinent leases, loans, accounts, legal agreements etc to make sure everything is above board.

If they didn't do that, than it's incredibly stupid.  Granted, companies and people can hide stuff, but it's not like Ultracade was as big as Enron.  The paper trail for licensing and the ability to verify it with the license holders should have been very transparent. 

It's all speculation at this point.  Kinda like Star Wars yokes but that's a different vendor!

[ChadTower]

Kinda like Star Wars yokes but that's a different vendor!

 

[Beretta]

this will be interesting, the reporter sounds like he's really put some foot work into this one..

and if the article is correct.. and the way it's written it i'd be supprised if he was to far off the mark, then Foley is in some deep #$%

now the problem with all this is how could anyone think they'ed get away with this out in the open?

if he gets off it'll probably be on technicalities and not legit business dealings.. but hey i dont know the whole story thats just my opinion thus far based on what i've read.

[ark_ader]

I think it is all kind of sad, really.   

[Patent Doc]

Well, I'm curious how the legal concept of laches applies in this case.  If the plaintiffs were aware of the ultracade machines (and given their presence at trade shows...they should have been) then typically there is a window of opportunity to assert a claim against someone.  If you wait to long you give up the right to sue.  So the defendant asserts laches.  In the patent world its a 6 year window...I'm not sure about copyright.

I do agree though, that it is a simple matter to produce documentation and money/paper trails for licensing. It is not something done with a handshake.

You'd be surprised (or not)  how tricky some licenses are?  Dave may have had a really good attorney who crafted language in license giving the right to sell the game.  It is also possible his attorney misinterpreted the license and gave an opinion that it was ok when it really wasn't.  It is also possible one of the parties didn't have an attorney at all (which sadly happens...and that is how you really get screwed).

[Aceldamor]

Well, I'm curious how the legal concept of laches applies in this case.  If the plaintiffs were aware of the ultracade machines (and given their presence at trade shows...they should have been) then typically there is a window of opportunity to assert a claim against someone.  If you wait to long you give up the right to sue.  So the defendant asserts laches.  In the patent world its a 6 year window...I'm not sure about copyright.

I do agree though, that it is a simple matter to produce documentation and money/paper trails for licensing. It is not something done with a handshake.

You'd be surprised (or not)  how tricky some licenses are?  Dave may have had a really good attorney who crafted language in license giving the right to sell the game.  It is also possible his attorney misinterpreted the license and gave an opinion that it was ok when it really wasn't.  It is also possible one of the parties didn't have an attorney at all (which sadly happens...and that is how you really get screwed).

Looks like it could still be a valid claim.

http://www.copyright.cornell.edu/resources/publicdomain.cfm

I'm not sure which domain this would apply, but it still looks like quite a bit of time to own the copyright.

[Patent Doc]

Looks like it could still be a valid claim.

http://www.copyright.cornell.edu/resources/publicdomain.cfm

I'm not sure which domain this would apply, but it still looks like quite a bit of time to own the copyright.

The question isn't how long a copyright is valid for purposes of enforcing infringement, the question laches addresses is how long the infringed waits once they are aware that infringement has occurred.  For example, in patent law, a patent is valid 20yrs from the earliest filing date.  If a patent issued and say had 19yrs of pendency left when the infringed party became aware of infringing activity, but then they waited 7yrs to assert a claim, the infringing party could say the plaintiff (the infringed) was barred from asserting the claim due to laches (ie the delay in asserting the claim was unreasonable).  So I'm questioning whether those asserting the claim waited too long to file suit once they became aware of the infringement.  This is similar to a statute of limitations situation if that helps.

[Beretta]

ya i see what you're saying. like squatters rights.. if someone squats on your land for like 10 years or something that area becomes legally theirs.. or something like that.

dunno if that applies to copy rights, even so that means he was doing it with all the assumption that they would'nt do anything before the limitations expired?

huge huge balls to try that.

[Patent Doc]

Yeah, you got it.  Laches definitely applies to copyrights....I've just been to lazy to look up the relevant rules for how long one has to wait to bring a suit before it applies.  Even so, it if it did apply it wouldn't kill the suit...just create a defense...shift the burden of proof...and create some hurdles for the plaintiff...but you can definitely win if you assert it.

[Aceldamor]

How legit would that claim be then in the following example:

I sell product "A" for 4 years with bogus licensing from company "B".

I recently get into industry news because of some other situation, which is either noticed or brought to the attention of company "B".  Company "B" then discovers that I am using their software. Company "B" then sues me.

now, I know that ignorance is typically does not have any legal leg to stand on, however I would think that in this case, given the terms of the licensing owned by company "B" they could do something...

another question/example: My friend has owned a business for over 10 years, and he used the imperial eagle symbol on his business cards with permission from one of the reps from Games Workshop, he recently got a cease and desist order from GW to stop using the symbol, now that is 10 years and they still had the right to do so, wouldn't that situation still apply here?

I only ask because I am by no means a lawyer, or know much about this type of law, but am getting interested as I will soon be selling my wares as a digital artist and want to protect my works as well.

[RayB]

"willfull" vs "innocent" infringement can carry different weights.

Same on the owner's side. If you didn't know someone was using your IP, then you didn't know, and that won't take away your rights, but if you did know and ignored it, you could be seen as having silently accepted the infringement. But you don't LOSE your copyright. That would be silly.

Trademarks are a different story. Its pretty well known that if you dont defend it, you can lose your claim to it, since the purpose of trademarks is for active use in commerce, and they don't want companies tying up any and every trademark they feel like (it's not like registering domain names).

Back to copyright, you could do all the due diligence and keep a paper trail proving you could not find a copyright's owner despite thorough searching, and then proceed with its use, and then later if sued, damages could be negated (as "innocent" infringement rather than "willful" infringement). Even if you are not penalized with fines, you'd still have to settle with the claimant for their fair value licensing costs, and if you didn't put money aside for that, it could still hurt.

I was already under the assumption that Ultracade's use of Universal games was under just that premise, since nobody seemed to have any idea what happened to Universal games. I guess now we know who owns them.