Interesting legality issue: console vs emulator

[GBGames]

I saw this thread on gamedev.net:
http://www.gamedev.net/community/for...opic_id=278903

I responded, but I was wondering what everyone else thinks. I can see this being a murky issue.

Summary: guy wants to get into game biz, but doesn't like the hoops he has to jump through to make a GBA game for Nintendo. He was wondering if he would be in trouble if he instead makes a game for an emulator. Basically, he is not making a game for the console itself, so Nintendo has no way of saying he needs a license.

I think his main purpose is to make a game and hope it gets popular enough so he can use it as leverage to become a real developer, but I wonder about the legality of trying to actually sell games made for the emulator and not the console itself.

[Greg Squire]

Making a console game to only be played in an emulator is probably fine if you’re using it only as a portfolio piece that you show to potential employers. However selling that game without going though Nintendo’s approval process is on “shaky ground”. Nintendo aggressively defends its IP (which includes the GBA platform), so I could see a lawsuit coming if he did start selling it. If he wants to sell it, he should port to the PC instead. A similar type of thing has occurred in the Atari homebrew market. People started making and selling newly created games (in cartridge form) for the 2600, 5200, and 7800. Atari (Infrograms), from what I understand, issued “cease and desist” letters to those companies and basically shut down that whole market.

I agree with GBGames on the issues regarding emulators though. I don’t advocate using emulators to play “illegal ROMs”, like I don’t advocate playing “pirated games”. However in the case you own that GBA cartridge, I don’t see why you can’t play that game on your PC as well. It’s similar to music; if you buy a CD, you should be able to play the tracks on your computer (MP3), or on your portable MP3 player also. (The music industry is starting to come around on this issue.) I realize there are some legal gray areas surrounding this “fair use” stuff, and some of it may depend on the license that came with the game (after all it’s licensed and not sold so there are use conditions). But that aside, that is the way I see it ought to be (maybe that’s not always the way it is currently).

In a related vein, another pet peeve of mine is having to buy media twice. I have lots of older VHS movies, but then I have to buy it again to get the DVD version. I realize that there’s an upgrade involved in this scenario (better quality, and maybe extra content), so I’m not opposed to an “upgrade fee”. Something akin to paying less for the 2.0 version of the software if you already own the 1.0 version, however I hate having to shell out the full cost of it all over again. Or another scenario would be having to buy a CD game twice because I want to play the multiplayer portion with my son, but the game requires that the copy protected CD be in the CD-ROM drive.

Okay I’ve vented enough.

[tolik]

Ok, being emuguru, I'm really confused for the first time.
That's crazy, man. GBA emu like VBA needs P3-600 to barely work, even better computer to have decent sound.
Who needs lowres game on PC nowadays?

So much points to make, one of them is... CRAZY!

[RedKnight]

Think back on how Sony destroy Bleem.

[papillon]

*eyes emulynx warily and cradles her SNES emulator*

some of us would MUCH rather have these 'low-res' games than today's market's 3d crap.

[Tom Cain]

My initial impression is that Nintendo could actually find this scenario beneficial in the legal battle to get rid of emulators. If Nintendo makes money from licensed games which are derived from system patents, then it seems to me that money made by unlicensed entities that bypass Nintendo but utilize its patents could prove legally useful in delegalizing emulators. Couldn't it?

[Anthony Flack]

A similar type of thing has occurred in the Atari homebrew market. People started making and selling newly created games (in cartridge form) for the 2600, 5200, and 7800. Atari (Infrograms), from what I understand, issued “cease and desist” letters to those companies and basically shut down that whole market.

Did they? What utterly despicable, killjoy scumbag bastards. I despise them wholeheartedly and wish them dead.

I don’t advocate using emulators to play “illegal ROMs”

I do. Emulation of old systems is a wonderful thing. If Nintendo ever do manage to kill it off... well, we'll need some kind of bloody revolution I guess.

[RedKnight]

Is not completly true.
Homebrew games didn't kill atari. (ok maybe 40 or 49.99 %)

It was that E.T game that kill Atari.
I also heard that there was a dump somewhere in new mexico, where
they still have that 5 millions E.T games, dump into giant containers.

[oNyx]

Haha E.T.

I heard all those cursed cartridges were buried in the desert

Well, the question by itself is pretty interesting and I'm not really sure if it's illegal or not. I'm even unable to clearly answer it from a moral POV. All I know is that there were some guys making a small free version (you could download the rom from their site) and they tried getting a publisher that way (for the real thing). But I don't know what happened to them.

[Jim Buck]

Well, companies like Atari HAVE to kill such things, no matter how small. The reason is that if there comes a time that there is something they REALLY want to kill, and they haven't established a pattern of protecting their IP in the past by killing off "smaller" projects, then the courts won't see the issue as black and white anymore and could favor the defendent.

It's the reason why, though it sounds ridiculous, Microsoft had to go after that kid with the MikeRoweSoft.com website.

[Anthony Flack]

Let's be clear - we're talking about the people who've been making homebrew 2600 roms RECENTLY, right? Those excellent people? Not people who may have been making them 20-odd years ago?

Atari (Infrogrammes) don't have to kill this. They could explicity grant permission; make the 2600 an open platform. They kill it because they they don't really give a damn whether they are spreading joy or misery in the world. I truly hate them, and anyone who switches off their own humanity whenever they act on behalf of their company.

[fusionlab]

A company called Datel has gone a step further by taking Game Boy Advance games designed on a PC and publishing them for GameCube. If you visit their web site www.codejunkies.com you'll see that in their online store they have a product called Advance Game Port for GameCube. This ships with 10 emulated GBA games which run on the GameCube. However Datel also has its own proprietary, unofficial GameCube disc - they are the only company in the world (other than Nintendo) who have the capability to make GameCube software. They also make third party, unofficial PS2 disc products such as Action Replay.

And no, Nintendo have not successfully sued them to date so take from that what you will.

[RedKnight]

atari 2600 is destinated to be DOOMED to infernal hades.
since it doesn't had the chance to compete with the NES.
because why?
NES had an awesome library of games that atari never had.
E.T vs Zelda???

[EpicBoy]

Atari (Infrogrammes) don't have to kill this.

Well, yeah, actually they do. If they allow it, it opens the door for other projects and it sets a precedent that they aren't prepared to follow through on. You can't (legally) allow the wolves into the barn if you aren't going to open the chicken coop next.

[EpicBoy]

NES had an awesome library of games that atari never had.

The NES also had about 100x the processing/graphical power of the 2600.

Really wasn't too hard to come out on top.

[papillon]

... while I can't entirely remember all the numbers for the different Atari models (didn't own one, I had a coleco) aren't you sort of comparing apples to oranges? The system that ET was on was many years before the NES, wasn't it?

... Of course, the ColecoVision was better than the Atari of its time. I will still play emulated Coleco games... no interest in the old Atari ones.

[tolik]

Originally Posted by RedKnight

Think back on how Sony destroy Bleem.

It did not, read Scribe's EmuFAQ which explains everything.
http://www.overclocked.org/emufaq/

[tolik]

Originally Posted by Tom Cain

My initial impression is that Nintendo could actually find this scenario beneficial in the legal battle to get rid of emulators. If Nintendo makes money from licensed games which are derived from system patents, then it seems to me that money made by unlicensed entities that bypass Nintendo but utilize its patents could prove legally useful in delegalizing emulators. Couldn't it?

Nintendo could start it long time ago accusing demoscene creating homebrew games. Since some of the sites request some donations and get them, plus make some competitions, that means MONEY. And since there's money, Nintendo would already start suing it.

[tolik]

Originally Posted by fusionlab

A company called Datel has gone a step further by taking Game Boy Advance games designed on a PC and publishing them for GameCube. If you visit their web site www.codejunkies.com you'll see that in their online store they have a product called Advance Game Port for GameCube. This ships with 10 emulated GBA games which run on the GameCube. However Datel also has its own proprietary, unofficial GameCube disc - they are the only company in the world (other than Nintendo) who have the capability to make GameCube software. They also make third party, unofficial PS2 disc products such as Action Replay.

And no, Nintendo have not successfully sued them to date so take from that what you will.

Ehm, old ActionReplay stories anyone? I remember Nintendo DID kill cheat devices.

Also, Nintendo has it's own GC GBA hardware player...

[RedKnight]

Originally Posted by emuLynx

It did not, read Scribe's EmuFAQ which explains everything.
http://www.overclocked.org/emufaq/

ahh good ole Overclock.
another good example.

Virtual game Station from Connectix
(sony bought that company)

[tolik]

Yeah, Connectix story is kinda weird. They (Sony) bought VGS, while MS bought Aaron Giles (http://www.aarongiles.com) with the thing called VirtualPC nowadays (or vice versa, VPC with AG )

[Anthony Flack]

Well, yeah, actually they do. If they allow it, it opens the door for other projects and it sets a precedent that they aren't prepared to follow through on. You can't (legally) allow the wolves into the barn if you aren't going to open the chicken coop next.

Sure you can. It would be easy. Though I can't see how making a 2600-compatible cart is infringing on anything anyway... but if it is, you can relinquish copyright on that particular thing. Or grant a license to the person in question. Or a whole bunch of other stuff.

If they don't, it's simply because they're miserable bastards. Probably they're the kind of bastards who aren't really such bastards on the weekends, but whenever they act as a representative of their company they turn into totally amoral bastards. The worst kind.

[Sunshine]

I've always thought that after a certain amuont of tim of getting 0$ in sales for a software item, or hardware, that the company should just give up the rights and make it freeware. If they're not making money on it anyway what's the point?

Of course if you goto Wal-mart and look on the shelf they're selling the original Zelda for 19.99$, granted for the handheld console, but still

[EpicBoy]

If they're not making money on it anyway what's the point?

It always surprises how little value indie game developers place on IP. It's the most valuable thing your company can own and makes up the bulk of the companys worth.

[papillon]

It's still possible to allow the fans to make use of things (and earn mega goodwill points) without giving up all your rights to everything.

Frex, in the interactive fiction world, basically anyone is allowed to use the Zork universe and related information in their (free) games. All they have to do is contact Guy In Charge Of Zork at Activision and let him know about it. I can't say more than that myself since I've never made a Zork-based game, but as far as I know this arrangement is still in place, and it hasn't led to a wholesale collapse of Activision.

As far as the legality of emulation and the drive for abandonware goes... I just don't know anymore. Nintendo has definitely demonstrated that they are still supporting old products in new forms, so you can make a good argument that the recent free zelda PC game deserves a lawsuit. But how is anyone to know? I have several fan-translated Japanese RPGs that I'm getting a great deal of enjoyment out of. It's not COMPLETELY impossible that someone might, some day, decide to drag them out of the back-catalog, translate them, reprogram them to compensate for the lack of buttons, and release them on the GBA. It's unlikely, since they never had an English release in the first place, but it's not impossible.

Of course, if they did, I'd be less likely to play them, since I would much rather have a nice low-res game on my PC monitor than be squinting at a little GBA screen. The current setup is pushing me much more in the direction of "This is fun... I wonder if I should get the *latest* Star Ocean..."

So I just don't know. Should you wait decades or forever in the hopes that someone eventually releases something, rather than play a quasi-legal copy? Meh.

[EpicBoy]

Frex, in the interactive fiction world, basically anyone is allowed to use the Zork universe and related information in their (free) games. All they have to do is contact Guy In Charge Of Zork at Activision and let him know about it. I can't say more than that myself since I've never made a Zork-based game, but as far as I know this arrangement is still in place, and it hasn't led to a wholesale collapse of Activision.

That's Activision's choice. However, if they ever want to say "no" in the future regarding the Zork IP - they can't. They've opened the chicken coop and they can't ever close the door now.

If you want to hold onto your IP (and its value), you need to defend it.

[GBGames]

Originally Posted by EpicBoy

That's Activision's choice. However, if they ever want to say "no" in the future regarding the Zork IP - they can't. They've opened the chicken coop and they can't ever close the door now.

If you want to hold onto your IP (and its value), you need to defend it.

I guess I'm confused as to why the door is perpetually opened now.

If Activision says they are licensing their IP for use to anyone who asks for it, they are still controlling it. If they decide one day to stop granting such licenses, your claim is that they can't because they've always allowed people to do it before? Or is it that somehow someone can still make games with permission that Activision isn't granting anymore? Please explain.

[EpicBoy]

I guess I need clarification. Are they entering into a legal document with these people as a "license" to use the IP, or are Activision just saying, "Yeah, go ahead". Because if it's the second, they're screwed - they've set a precedent that will sink them in court should they try to say "no" in the future.

[Greg Squire]

Originally Posted by Anthony Flack

I do. Emulation of old systems is a wonderful thing. If Nintendo ever do manage to kill it off... well, we'll need some kind of bloody revolution I guess.

I should probably clarify. I love emulation and think it’s wonderful as well. I love MAME and playing the old arcade classics as well. I think the MAME developers have done wonders in preserving this past history that was in danger of disappearing entirely. However, the problem is that using these ROMs is still in a legal gray area right now. Supposedly you only use a ROM if you own the original game board (not easy to find for most of us). Also there is some clause in copyright law about expiration of copyright on abandoned systems, that also somewhat legitimizes their use. MAME users are for the most part forced into this situation. Many would gladly pay something to the owners of the software for the use of the ROMs, but most IP holders (Nintendo, Midway, etc.) haven’t allowed this yet. Console emulation is much in the same boat, but it’s usually easier to find and buy an old cartridge than an old game board.

On the bright side of the coin, I think change is coming about to help move emulation out of the fringe territory and into a fully legal status. There’s a company StarRoms, that’s has worked out a deal with Atari so that you can legally buy around 25 old Atari ROMs. Supposedly they are trying to strike deals with others (Bally, Williams, Midway, Nintendo, etc.) to get the rights to sell more. I think ROMs currently are in the boat that MP3s were in about five years ago. The music industry has come around (mostly) on that and businesses like iTunes sprang up. StarRoms appears to be the iTunes of the ROM world.

[Jim Buck]

I also assumed in my initial posting about this that people were talking about the "yeah, go ahead" method vs. a legally-binding license-based contract. EpicBoy's followups are dead-on with companies needing to protect their stuff.. it's not because they want to be "killjoys", etc.. these things cost lots of money to protect, so there is much more to it than being a "killjoy".

There was a time not too long ago where people would have considered Asteroids, Pac-Man, Frogger, Defender, etc all "dead" properties that we should have open game on.. well, someone did actually make current products with these IPs. (Pac-Man and Frogger even seem to have quite a few recent SKUs.)

(And, yeah, I know there are a ton of Pac-Man, etc clones out there on the 'net, but they don't register as a blip on anyone's radar.. and if they did, you can be sure the IP owners would absolutely be sending a cease-and-desist letter.)