There’s been a lot of interest lately in retro gaming. I don’t know if it’s just because people are getting older and gaming was part of their youth. Hard to know why, but it seems like you’re hearing about retro gaming from a lot of different places. Several legitimate manufacturers are putting out licensed consoles that play old games. Some, like the recently released “Atari 2600+,” look like the old consoles they emulate. The difference is that they have modern connections and work with today’s TVs.
There are also quite a few consoles and handhelds available from online stores that fall into a different category. These devices boast 10,000 games or more from a dozen or so different systems, and can generally be found for under $100.
You may be asking yourself how a manufacturer can do something like this legally. The answer is… they can’t. Most of these devices use open-source software but don’t make the source code available like they should. The game selection is scraped from places on the internet that host old ROMs. There’s no question that the manufacturers are infringing on copyright all over the place. But they don’t seem to care. A lot of buyers don’t care either. They love the idea of playing Street Fighter II, the exact version they played as a kid, and they don’t see the harm in it. So let’s look into that a bit.
For the most part, the games on these sketchy consoles aren’t available legally anywhere. The companies themselves aren’t publishing them. Some are available through systems like Steam but most aren’t. Still, that doesn’t make it legal to pay money to get them.
All the software used to run these games, especially the BIOS files that guarantee compatibility with a system and the ROM files that are specific to each game, are fully protected by copyright in the US. In some cases, the protection lasts for over 90 years, so every single console game from the 1980s, 1990s, and 2000s is still covered. There’s a procedure where the rightsholder could release the games into the public domain after 35 years, but it hardly ever happens.
It’s possible to argue that if you found these ROMs on a web site and downloaded them yourself, that might be “fair use.” Fair use is the doctrine that lets you record stuff on your own DVR for your own use, as long as you don’t profit from it. I’m not sure if ROMs count here and honestly I don’t think anyone is sure if they do. As far as I can see it hasn’t been tested in court.
One thing that’s for sure, though… selling a device with the ROMs preloaded is mucho, mucho illegal. Even selling a device with instructions on where to download ROMs is illegal. If there’s profit involved and you’re not sharing it with the authors, that’s illegal plain and simple.
I would say, yes. I’ve been saying for over a decade that it’s time to take a look at copyright reform. That article even mentions software. I still hold to that premise: if you’re talking about software or electronic games, then the question has to be, has it been available for sale in the last 10 years? If not it should go into the public domain. That’s plenty of time in today’s world. I personally think all copyright should expire after between 25 and 35 years. The whole purpose of copyright is to make sure people can afford to keep innovating. If you’re still cruising on your work from 35 years ago, I think we can all say enough is enough.
So far, most game makers have looked the other way at unauthorized retro gaming. Nintendo has filed some lawsuits and issued some takedown orders. But for the most part that hasn’t worked for them. These old files are out there on the internet and if you get stop one company from profiting from them, 10 others pop up. AliExpress and Temu are full of these products from companies no one has ever heard of and it’s going to be hard to prosecute them even if you find them.
iOS just started allowing retro emulators, and Android has had them for a while. There’s a lot of interest out there, and I feel like in the next year one of two things will happen.
Possibly, there will be some change to international copyright guidelines. Possibly we’ll see some understanding that the world of software changes a lot faster than other things that get copyrighted. But, don’t hold your breath.
It’s more likely that sleeping giants like Nintendo and Sega will try to crack down on these companies profiting off old software. They’ll start by going after otherwise legitimate, not-for-profit repositories, because they’re the easiest to scare. Then they’ll try to figure out who is actually making those retro consoles. I’ll be honest with you, I can’t figure out who’s making them. It’s pretty obvious that they’re in China, and when it comes to intellectual property law, it’s incredibly tough to deal with Chinese companies. I’m told that Chinese law says it’s perfectly fine to use someone else’s intellectual property as long as they’re not a Chinese company. If that’s true, it explains a lot.
I want to be optimistic here. I want to believe that the current excitement about retro gaming will translate into meaningful reform. Even if the Nintendo, Sega, Sony, and Atari all got together and said something like “we won’t prosecute anyone for using something out of publication for 25 years, but we’ll prosecute the living heck out of anyone using newer than that…” I think that would be a real step in the right direction. But would it happen? I really doubt it. Even if they did it would probably mean they would republish all the really popular games so they could take them out of public use.
But hey, hope springs eternal. Just like Donkey Kong, I’m always willing to believe that it’s possible to climb your way out of a problem. Let’s just hope that the game companies don’t climb up to stop us.
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There are also quite a few consoles and handhelds available from online stores that fall into a different category. These devices boast 10,000 games or more from a dozen or so different systems, and can generally be found for under $100.
You may be asking yourself how a manufacturer can do something like this legally. The answer is… they can’t. Most of these devices use open-source software but don’t make the source code available like they should. The game selection is scraped from places on the internet that host old ROMs. There’s no question that the manufacturers are infringing on copyright all over the place. But they don’t seem to care. A lot of buyers don’t care either. They love the idea of playing Street Fighter II, the exact version they played as a kid, and they don’t see the harm in it. So let’s look into that a bit.
It’s not a question of harm really
For the most part, the games on these sketchy consoles aren’t available legally anywhere. The companies themselves aren’t publishing them. Some are available through systems like Steam but most aren’t. Still, that doesn’t make it legal to pay money to get them.
All the software used to run these games, especially the BIOS files that guarantee compatibility with a system and the ROM files that are specific to each game, are fully protected by copyright in the US. In some cases, the protection lasts for over 90 years, so every single console game from the 1980s, 1990s, and 2000s is still covered. There’s a procedure where the rightsholder could release the games into the public domain after 35 years, but it hardly ever happens.
Fair use vs. profit
It’s possible to argue that if you found these ROMs on a web site and downloaded them yourself, that might be “fair use.” Fair use is the doctrine that lets you record stuff on your own DVR for your own use, as long as you don’t profit from it. I’m not sure if ROMs count here and honestly I don’t think anyone is sure if they do. As far as I can see it hasn’t been tested in court.
One thing that’s for sure, though… selling a device with the ROMs preloaded is mucho, mucho illegal. Even selling a device with instructions on where to download ROMs is illegal. If there’s profit involved and you’re not sharing it with the authors, that’s illegal plain and simple.
Is it time to take a look at the law here?
I would say, yes. I’ve been saying for over a decade that it’s time to take a look at copyright reform. That article even mentions software. I still hold to that premise: if you’re talking about software or electronic games, then the question has to be, has it been available for sale in the last 10 years? If not it should go into the public domain. That’s plenty of time in today’s world. I personally think all copyright should expire after between 25 and 35 years. The whole purpose of copyright is to make sure people can afford to keep innovating. If you’re still cruising on your work from 35 years ago, I think we can all say enough is enough.
So far, most game makers have looked the other way at unauthorized retro gaming. Nintendo has filed some lawsuits and issued some takedown orders. But for the most part that hasn’t worked for them. These old files are out there on the internet and if you get stop one company from profiting from them, 10 others pop up. AliExpress and Temu are full of these products from companies no one has ever heard of and it’s going to be hard to prosecute them even if you find them.
I have a feeling that we’re reaching a tipping point
iOS just started allowing retro emulators, and Android has had them for a while. There’s a lot of interest out there, and I feel like in the next year one of two things will happen.
Possibly, there will be some change to international copyright guidelines. Possibly we’ll see some understanding that the world of software changes a lot faster than other things that get copyrighted. But, don’t hold your breath.
It’s more likely that sleeping giants like Nintendo and Sega will try to crack down on these companies profiting off old software. They’ll start by going after otherwise legitimate, not-for-profit repositories, because they’re the easiest to scare. Then they’ll try to figure out who is actually making those retro consoles. I’ll be honest with you, I can’t figure out who’s making them. It’s pretty obvious that they’re in China, and when it comes to intellectual property law, it’s incredibly tough to deal with Chinese companies. I’m told that Chinese law says it’s perfectly fine to use someone else’s intellectual property as long as they’re not a Chinese company. If that’s true, it explains a lot.
The golden age… beginning or about to end?
I want to be optimistic here. I want to believe that the current excitement about retro gaming will translate into meaningful reform. Even if the Nintendo, Sega, Sony, and Atari all got together and said something like “we won’t prosecute anyone for using something out of publication for 25 years, but we’ll prosecute the living heck out of anyone using newer than that…” I think that would be a real step in the right direction. But would it happen? I really doubt it. Even if they did it would probably mean they would republish all the really popular games so they could take them out of public use.
But hey, hope springs eternal. Just like Donkey Kong, I’m always willing to believe that it’s possible to climb your way out of a problem. Let’s just hope that the game companies don’t climb up to stop us.
The post Is it time to talk about abandonware reform? appeared first on The Solid Signal Blog.
Continue reading...
