You absolutely can check out video games just like library books -- physically.
What the article says is libraries can't make digital copies of the games and lend them remotely over the internet.
Nothing is preventing traditional physical lending.
I personally think it's time Congress got around to putting all works that haven't been commercially available for e.g. 5 years into the public domain. That's the easiest way to fix this. But that's the job of Congress, not the US Copyright Office.
I’m in the middle of writing to the EFF to see if they would clarify if this pertains to non-profit educational organizations employees/volunteers. E.g. if an organization of researchers are providing educational information about games, can they privately access the same physical copy remotely sitting in a drive somewhere. The rules from 2018 don’t appear to support this, unfortunately.
A lot of research is currently restricted by the inflated cost of long out of print games. Dozens or hundreds of people might want to contribute, but if a non-EULA encumbered, physical copy costs hundreds of dollars it becomes harder to find people who both have copies and the skills or desire to do work as well.
best I Can do is 90 years after the death of the author.
5 is much too short, though. and "commercially available" is very exploitable. I think a flat 20-30 years would work out fine. 20 is generaally when we call a title "retro" anyway, right?
> 5 is much too short, though. and "commercially available" is very exploitable.
It's not too short for things that have stopped being sold. If a book or video game has no more commercial value in selling, why not end its copyright?
I'm not saying 5 years after something is published. I'm saying 5 years after it stops being sold by the publisher.
If a publisher wants to "exploit" that by keeping everything in print, then great. We still keep the existing copyright limits. But I guarantee you most of the stuff no longer being sold, they don't care about because it's not profitable anymore. If it was profitable, they'd still be selling it.
Video games are particularly egregious because even if an old game is currently sold under the same name, it often is not the same game:
* it’s running via emulation or has been recompiled for a different architecture with noticeable changes from the original (control latency, graphical differences, fixed/new bugs)
* content has been added or removed (often due to licensing)
* an EULA has been added or modified
* it’s not playable on the hardware where it was originally released
This is unlike books and music, which rarely change, or movies where it happens but is certainly not common.
Video games are different, though. The Genesis version of Sonic 3 has a different soundtrack than all others and hasn’t been available since 1997. Symphony of the Night had the most similar rerelease in 2006 on XBLA, but everything since has been a version with many big fixes and additions based on the PSP version. Final Fantasy VI has had many “enhanced” versions, but surprisingly the original ROM was available until the Wii U eShop shut down last year. Also aurprisingly, new old stock of the PS1 version could be bought from Square Enix up until a few years ago.
There are countless other remasters or ports that replace the original which is then never sold again.
None of that presents any kind of legal difficulty.
If a game is recompiled under a new architecture, it's still the same graphics and text and levels and everything. It's not really any different from a new printing of a book in paperback instead of hardcover and in a different font. The copyright on those elements remains intact.
If you're simply talking about access to previous versions for researchers and archivists, that's more of a question of archival practices than of copyright. Which is a very interesting conversation, but a totally separate one.
It may it matter to you, but it certainly matters to competitive, speed run, and enthusiast communities around different games.
I mentioned Sonic 3 because it’s not the same music after the initial release. Depending on the version, Symphony of the Night is not the same levels or graphics. There are multiple versions of Revenge of Shinobi which replace various bosses for the Sega Genesis. Final Fantasy VI may or may not be the same code. Later versions may or may not use resources from earlier versions, sometimes a release is a completely new game with the same gameplay and aesthetic (this was especially true in 16-hit and earlier eras when arcade and home versions were complete reimplementations of the same game).
They might have the same name, but at what point does the Ship of Theseus become a different thing?
> They might have the same name, but at what point does the Ship of Theseus become a different thing?
Who knows, doesn't really matter. Like with most things, the courts can determine on a case-by-case basis whether or not a particular thing currently on sale is similar enough to the old/original version of it such that the original thing should still hold copyright. Not really a big deal from a legal standpoint.
My original reply was to a post suggesting something go into the public domain so many years after it has stopped being sold. I was just trying to illustrate how quickly that becomes a tricky problem.
I don’t think that concept is viable for other reasons, so hypothesizing is all we’ll ever have.
>It's not too short for things that have stopped being sold. If a book or video game has no more commercial value in selling, why not end its copyright?
Well that's more for exploiting. They can stop making copies of say, Horizon Zero dawn that came out in 2017. And maybe they stop selling it in 2019 (in this theoretical) . Just when the 5 years are almost up, they start making another retail run of it, or the remaster in this case. Repeat and iterate until you get bored.
> I guarantee you most of the stuff no longer being sold, they don't care about because it's not profitable anymore. If it was profitable, they'd still be selling it.
I want to thank that, but companies still prefer to hoard IP's, if only to keep others from working with it. There are several IP's from now defunct companies that got picked up by non-gaming studios, who obviously have no intention of ever making a game. They just want a cut if anyone ever wants to try. Or to sue when fans try to do stuff with it.
For 5 years in advance, it's not hard to keep a disc run or remaster in mind. Just look at Sony. For a longer term like 20 years they need to be more creative.
> I want to thank that, but companies still prefer to hoard IP's, if only to keep others from working with it. There are several IP's from now defunct companies that got picked up by non-gaming studios, who obviously have no intention of ever making a game. They just want a cut if anyone ever wants to try. Or to sue when fans try to do stuff with it.
And this is exactly why the suggestion upthread is a good one. As a society, we shouldn't allow people to hoard IP and withhold it from the public.
How would you deal with digital versions now?
Publishers will just leave all the PC versions on steam and call it a day. Those will never expire as long as the publisher remains in business.
As long as it's still for sale, and sales will actually get fulfilled, and there's a reasonably-widely available platform the game will still run on, that's fine. The point of the 5-year suggestion is to ensure that people continue to have access to these works. Forcing things into the public domain (after a 5-year not-for-sale period) is one way. Keeping things for sale so people can buy them is another.
Yeah, that's the other can of worms that I didn't go into. Even if a game gets delisted from steam, they can just whip up that digital copy "for sale" on their website or any other cheaper platform (since sales are No longer the priority, just keeping the copyright is).
It should be "20 years or whenever it's not commercially available, whichever comes first"
Otherwise, we'll still see companies make stuff and kill it and sit on it for decades. (Often binning fully-finished releases without ever letting it be sold ever -- see Discovery and Disney's recent releases)
Preservation should start the minute access is threatened, not some decades later when it's likely too late.
That's more of a question of weird tax law quirks related to corporate mergers, not copyright. It's not generally profitable to make stuff and then not sell it immediately.
And I certainly don't want to start a precedent where people are forced to publish things they don't want to. That's kind of the polar opposite of freedom and liberty.
Well ideally it would be twenty five years from date of publication with extensions of five years upon re-release, up to three times. Meaning you could, at most, get forty years, but only if you re-released the media in question before the original copyright term or the extensions ends. This means that only the most enduring media will likely get forty full years of protection. Meaning that, had a film come out in 1984 and not been re-released in any form since it's original theatrical run from 1984 to 1985, it's copyright protection would have ended in 2009. But if it got a VHS release in 1988, a DVD release in 2002, and a Blu-Ray release in 2009, it's copyright wouldn't have expired until just this year. To make this work, making sure sub-licensing and syndication do not count as releases (the show appearing on a television channel or a third party streaming service for example) would close some of the loopholes. This would also mean that for the full forty years of protection there has to have been physical media created, providing a protection that the data can't be arbitrarily revoked.
The retro wave hits everyone around 30 years, and again around 50. It would be interesting to have a non-continuous copyright claim. The first 15 years it's yours, then 15-30 it's public, 30-60 it's yours again, and finally 60+ it's public domain forever.
I think that would be incredibly frustrating. If someone were to make a commercial product derived from something that was in year 29 of its lifetime (while in the public domain), they'd have to stop selling it a year later.
I don't see where they outline the difference between games and books. This makes no sense at all. I can see where they would draw a line with proprietary IPs like old Nintendo games, but there's probably hundreds of thousands of games that have no owner.
I'm tired of video games being treated as something that they're not. They're not services and they're not just for entertainment. It's an art form and they become part of the broader culture, not to mention their full potential as an interactive medium has only barely started to be explored.
Suspecting nobody will sue you is not good enough for a distributor, I assume. It also means nobody is there to give you permission to something that is clearly not yours, which sounds risky. And still, someone with the rights might show up at any point.
And as others mentioned, I’m not even sure if the market is big enough.
I guess no one would stop someone from distributing, but presumably there isn't a huge market for these games and therefore no incentive. I was thinking it had more to do with preventing competition or something like that.
Most abandonware isn't really that cut and dry. During the NES/DOS days you might have seen companies fold and their IP become owned by no one. But even then, in many cases, the IP ended up being sold, and over the years ping-pongs around new owners.
Many times those new owners aren't really concerned with some 30 year old game from an IP they may not even remember having being distributed, but the fact they still could at a moment's notice is a possible threat.
But yeah, if there truly is no existing owner, it's basically free game (literally).
I don't know but I think it's not just about the old games that aren't produced anymore. I think it could be about protecting profit in other areas. They may want to control the Overton window so that it doesn't become thinkable that the same thing could happen to other video games or media. If a library is able to buy a video game and loan it out for free online, then that could become a problem for some models. Is it possible to loan movies and TV series online in libraries now?
If you have the resources, then a maximalist IP agenda would be the most rational, to extract as many rights as possible because it creates wider moat for attackers to cross. You keep them busy fighting things that don't matter to you, so they stay far away from your core business interests.
> is it possible to loan movies and TV series online in libraries now?
Absolutely. In fact it's unusually popular. In undergrad I remember the only people reading physics books were physics students, but it wasn't only film/media studies etc checking out DVDs. I'm just about old enough that unlimited streaming wasn't ubiquitous, so people would go to the video stations in the library and bingewatch there.
edit: despite my anecdote, this service is available online too, see for example the service, Overdrive, which is popular with municipal libraries.
> If you have the resources, then a maximalist IP agenda would be the most rational, to extract as many rights as possible because it creates wider moat for attackers to cross.
That's the answer, the IP conglomerates aren't arguing in good faith, they just want to defend their moat as much as possible and push the debate outside of rethinking media consumption in the digital age.
Those IP conglomerates have nothing to gain from any legislation change, they basically already have all the rights they could possibly have and want to keep their position. If that means throwing away some old games under the bus, they are happy with that.
If you haven't played Rez/Rez Infinite yet, you owe it to yourself to. The game is 22 years old and it's still leagues ahead of most games in terms of what a game can do, what it can express. Rez is... difficult to describe but a start might be, it's Polybius (legendary arcade game) if it were developed by raver hippies. Its purpose seems to be inducing an altered mental state of "flow" and the joy that comes therewith.
Rez has the property of being so good that other developers (expectedly) made games that try to do what Rez did, missed the mark completely, and still ended up with really cool games. Thumper, Aaero, and Sayonara Wild Hearts come to mind, as does Jeff Minter's take on Polybius.
I've always joked that Sayonara Wild Hearts is a dimensional incursion from a reality where the Feel The Magic DS games never stopped coming out. It's interesting, the way influences collide in new works.
Paper's Please as well. Blows my mind that what look like a mundane puzzle game can evoke such a strong feelings in me. And that was the beta build of the game, barely any storyline just from the mechanics and design alone.
The article is missing a lot of context. The Video Game History Foundation (VGHF) has gone into this in great detail on their podcast, and slightly less detail on their blog. In summary:
Every three years, the US Copyright Office considers petitions for exemptions to the DMCA. The big famous example that everyone talks about is in 2015, teachers won the right to bypass DVD copy protection to preserve teaching materials. This exemption had been rejected at least twice previously, but they finally won approval in 2015.
Every three years though, it's a fight. Previous exemptions can also be withdrawn during these proceedings if the Copyright Office or the Librarian of Congress believes that the exemptions are not working as planned and are harming the market.
For a long time now, folks like the Internet Archive have been petitioning to legally allow digital lending of all kinds of content, including video games. This is far from the first time this exemption has been considered. However, these proceedings include testimony and discussion, and the Entertainment Software Association (ESA) always sends lobbyists to oppose the exemptions.
In the past, one of their main arguments that worked was that those who wanted to allow digital lending were customers and enthusiasts who wanted to open their own digital arcades. There was no serious scholarship behind it.
They also were able to imply that video games weren't culturally important like books or movies because they were purely entertainment, and therefore not worth studying or preserving. And this argument worked because indeed, the Registrar of Copyrights saw video games as lesser cultural artifacts.
That's one of the reasons why organizations like the VGHF became so important to the fight. By proving that there is an academic community and non-profits engaged in treating video games as seriously as they deserve. Because of that the ESA shifted its argument completely to the economic harms to the retro game market.
To counteract that argument, the VGHF performed a study last year showed that 87% of video games are no longer commercially available, so there's there's no market to ruin if those 87% were allowed to lend. They even proposed a lot of safeguards to limit the number of copies lent and DRM schemes to prevent borrowers from dumping the ROMs (which are out there anyway).
The ESA countered that those games would still be competing with retro games that are still being sold on the market, and that the protections weren't good enough. DRM can be cracked, and they don't trust the people who want to lend the games to not introduce side-channels to get around the restrictions. In their argument, only the rights holders can properly protect their games, and only with help from the DMCA.
It's worth noting that the Registrar of Copyright is famously even more strict than rights holders at these arguments sometimes. In 2012, they denied the request for teachers to break DVD encryption, even though lobbyists for the motion picture industry said they would accept it.
And so that's what this news is about. Despite the lobbying and the studies, they sided with the ECA, seemingly taking their arguments all at face value.
I should also note that publishers do often go after libraries for lending books. It's often said in these circles that if lending books through a library weren't already common when the DMCA was enacted, we'd have to fight just as hard every 3 years to get exemptions for what libraries have always done, and we still probably wouldn't get everything.
I give IA money every month, and I encourage everyone to do the same.
I understand that the current state of copyright put them on thin- to no-ice. But that shouldn't be the case, IMHO. It's a net gain for the universe to let them loan these out-of-print materials. Publishers are working hard to make sure it's very expensive or impossible to do Internet lending. And Internet lending is exactly what the future of libraries should be unless we want to be stuck in a perpetually diminishing 1990.
IA is fighting the good fight against some seriously long odds.
It's a popular criticism, but what's the conclusion? Don't fund the IA and let it die and with it the whole concept of end-user control of the things they buy, intellectual property for the masses, etc.?
Also, it's popular criticism - things go wrong, the team gives up a few goals, and the bad response, the loser response, is when people start pointing fingers at each other in the locker room. The right respnose - the only one that wins - is to pull together and fight harder.
If anything, the players slapping each other on the ass cheering each other on as they lose game after game seems like the problem here. Not criticism from fans.
Maybe they could pick one sport -- archiving things -- and focus on that for a while?
When you have revolving door regulators, almost impossible to expect regulation that benefits individual freedom over special interests. Copyright is supposed to protect creators while they market and deploy their IP from others selling unauthorized copies.
But.. can any legal experts here explain otherwise, that this is a smart ruling?
On the plus side, the games most in need of archiving take up a relatively small amount of space. Old CP/M and Commodore-64 games are so small you can easily store all of them on a cheap disk.
The more people who have complete archives (even if they're not being distributed freely) the more likely these games will survive.
As long as there is creative expression involved in the translation, that may be accurate.
That’s effectively what the decomp community is doing. Instead of PDF and interpreter it’s git and compilers. (Though music and visual artwork must be excluded for different copyright reasons).
Can you though? Harry Potter is information too. You can't legally print your own copy of Harry Potter and lend it out at a library. Libraries could save a lot of money if they could do that.
During covid I wanted to enable the local arcade in Amsterdam (Blast Galaxy) to stream their old boards to subscribing internet users for internet play, however I consulted with one of the leading IP lawyers in the city & was told basically "nope".
My pitch to the lawyer was that it was simply a case of "longer wires" in terms of board input and output, however there is something in EU law that addresses encoding and transport over networks which causes the issue in terms of IP.
I am not sure I fully grasp what’s at stake here. Does it mean that:
* Only 1 person at a time can borrow play a retro game physically (in a dedicated library) even if there are more than 1 copies available
* Libraries cannot offer remote access to their retro games (I wonder, can libraries offer that for books? In know my university library had a digital library but that’s it) even if safeguarded
I don’t really understand the actual consequences of this new ruling, the article doesn’t really explain that in my opinion.
The big deal is that it can’t be over the Internet, even if restrictions are in place to ensure only one user can access one copy at a time.
Zediva and Aereo had the same issue, albeit in a commercial application. I was hoping libraries would be given a little more freedom since their purpose is educating the public.
It's wild what a reign the anti-digitization forces have had.
The law keeps contorting itself into knots to entrench specific versions of the past. The Aereo lawsuit comes to mind as wildly anti-civilian, concocted to make the legal regime as tall and wide as possible. It's just so sad that legalism and Terms of Service feel like they are in a race to remain bigger than technology & possibility, to keep things the same.
Maintaining copyright should require a duty to distribute. If you do not distribute (at a reasonable price, no tricks allowed) your work, the copyright should just expire because you clearly aren't making any more money.
Creating copyrightable intellectual property is an investment, where you spend many hours doing work for free in the hopes that it'll pay off in the long term. What you are saying is "too bad, you have to do a bunch of work for free, then continue doing a bunch of work indefinitely into the future, otherwise we'll steal your investment."
Nobody would say that your stock purchases should expire if you're not actively meeting with a financial advisor or following the market. "Finders keepers, you weren't using your copyright" is just a recipe for artists to get robbed by lawyers.
I kind of like the idea of allowing verbatim redistribution if the author or their estate is demonstrably not planning to make money off it, but attribution and integrity of the work should be preserved.
Moral rights should be preserved indefinitely, yes.
Big IP holders make a large effort to mix both of those so they argue in bad faith that their profit advances human culture. Do not fall for it, they are very different things, and if somebody proposes extra protection for moral rights, only those big IP holders will be against it.
Distinguishing work for hire vs personal work would help, as well. Most commercial copyrighted works are created using a work-for-hire model (similar to textbooks). This isn’t what copyright was meant to protect.
This is 100% wrong, the very first copyright law specifically included editors and publishing houses as entities who could hold copyrights for work done by employees or contributors. Many reference books / etc were done by teams of professionals and their employers owned the resulting work.
You are appealing to people's ignorance (including your own) by evoking an idyllic past that doesn't actually exist. The copyright problems between individual authors are substantively indistinguishable and the law correctly acknowledges this. The only difference is completely insubstantial: irrational emotional appeal.
While I’m not terribly familiar with the Statute of Anne, the Wikipedia entry clearly states it was the first copyright law to be regulated by the public and granted copyright to authors which could then transfer that right to a publisher.
“It also marked the first time that copyright had been vested primarily in the author, rather than the publisher, and also the first time that the injurious treatment of authors by publishers was recognized; regardless of what authors signed away, the second 14-year term of copyright would automatically return to them.”
Your source, as best I can tell, has nothing to do with work for hire or collaborative works.
While trying to find more information, I came across this article from Cornell[0] that suggests the idea that an employer would own the work of its employees was a novel concept that originated in the late 1800s and was codified in 1909. That’s long after the Statute of Anne and early US copyright laws.
While your idea is certainly not one I’m familiar with, you seem relatively confident in it. Is there something I’m missing?
I don't like that idea at all - why should an author be obligated to do ongoing work in marketing / publisher schmoozing / etc to keep their copyright? If someone wants to republish an out-of-print novel that's still in copyright, they should at least have to pay royalties - perhaps it's acceptable if the author can't refuse a reprinting, but they definitely need to get paid. Otherwise small authors would have their IP stolen out from under them by publishers with teams of lawyers: sole proprietors don't have the resources to keep older copyrights "alive."
Not to keep all of their copyright, just their commercial rights. I say if the thing has been out of print for say, 15 years, verbatim distribution should be allowed.
Copyright itself only lasted about 15 years originally, which is a reasonable amount of time to commercialise a work. If you haven't done anything commercial with it in 15 years, it seems reasonable to me to allow the public to enjoy the work.
Honestly I think the right to remix and derivative work would benefit everyone a lot more. Never going to happen, but I think society losing a lot due to how hard it's to profit from adding your own work to someone else's work.
That's correct - today if you want to actually buy Adobe Photoshop, you have to buy from a vendor other than Adobe (and you will miss some recent features).
> Did they expect that they would allow folks to check out other software like Photoshop at the Library?
Ominous-they would really like to disallow it. But yes, of course you should. When you get a license key that's a seat. Commercial software has been making this work forever with license servers.
Like this isn't some crazy mental model. When you buy an iPhone you bought the hardware and one indefinite transferable license to run iOS. How else should software ownership work?
Licensing is different from fair use and copyright. The games the original article is describing had no license and were only protected by copyright (no different than a book or movie). Licenses can both permit and restrict things that copyright and fair use allow or don’t allow.
At least my local public library has hundreds of CD-ROMs of Mac and Windows software (mostly from the 1990s when boxed software was still standard) that you can check out. Granted, I can imagine that's the sort of thing that will get "weeded" in a decade or so when the library needs space and they see this old software as being worthless.
As others have mentioned, some of that software is become very rare and collectible. Would a library lend a copy of “Indiana Jones in Revenge of the Ancients”?
that becomes more difficult though since older games are in essence collectors items and would be stolen or not returned. It's like if most of the books in the library were out of print books that were highly collectable, a recipe for disaster.
Not saying they made the wrong call here or anything, but there is clearly a gap here between old games being made available and legal options to access them, libraries tried to own a physical copy and distribute a digital copy, which was an attempt at a fair compromise, but if that isn't allowed either then I guess piracy is the only options now.
Because until GOG and Steam, most video games were manufactured and distributed as physical artifacts, such as cartridges.
A ripped ROM image in an emulator is not equivalent to an Atari or Nintendo cartridge.
We do acknowledge that these artifacts are discontinued, and extremely valuable, but under DMCA, you literally can't have your cake and eat it too: the cake is a lie.
Under the DMCA, one is able to request an exemption, and the reason it wasn’t granted in this case seems to be lobbying by the industry. Even if none of that were true, why would I use an anachronistic law to define what is and what is not similar? That law should be replaced. Emulated and physical games seem quite similar in the important ways to me.
This headline is false and clickbaity.
You absolutely can check out video games just like library books -- physically.
What the article says is libraries can't make digital copies of the games and lend them remotely over the internet.
Nothing is preventing traditional physical lending.
I personally think it's time Congress got around to putting all works that haven't been commercially available for e.g. 5 years into the public domain. That's the easiest way to fix this. But that's the job of Congress, not the US Copyright Office.
There’s a bunch of legal precedent - Zediva, Redd Horne, Aereo, Professional Real Estate Investors, etc.
http://laboratorium.net/archive/2011/03/16/that_zediva_thing...
I’m in the middle of writing to the EFF to see if they would clarify if this pertains to non-profit educational organizations employees/volunteers. E.g. if an organization of researchers are providing educational information about games, can they privately access the same physical copy remotely sitting in a drive somewhere. The rules from 2018 don’t appear to support this, unfortunately.
A lot of research is currently restricted by the inflated cost of long out of print games. Dozens or hundreds of people might want to contribute, but if a non-EULA encumbered, physical copy costs hundreds of dollars it becomes harder to find people who both have copies and the skills or desire to do work as well.
best I Can do is 90 years after the death of the author.
5 is much too short, though. and "commercially available" is very exploitable. I think a flat 20-30 years would work out fine. 20 is generaally when we call a title "retro" anyway, right?
> 5 is much too short, though. and "commercially available" is very exploitable.
It's not too short for things that have stopped being sold. If a book or video game has no more commercial value in selling, why not end its copyright?
I'm not saying 5 years after something is published. I'm saying 5 years after it stops being sold by the publisher.
If a publisher wants to "exploit" that by keeping everything in print, then great. We still keep the existing copyright limits. But I guarantee you most of the stuff no longer being sold, they don't care about because it's not profitable anymore. If it was profitable, they'd still be selling it.
Video games are particularly egregious because even if an old game is currently sold under the same name, it often is not the same game:
* it’s running via emulation or has been recompiled for a different architecture with noticeable changes from the original (control latency, graphical differences, fixed/new bugs)
This is unlike books and music, which rarely change, or movies where it happens but is certainly not common.Video games are different, though. The Genesis version of Sonic 3 has a different soundtrack than all others and hasn’t been available since 1997. Symphony of the Night had the most similar rerelease in 2006 on XBLA, but everything since has been a version with many big fixes and additions based on the PSP version. Final Fantasy VI has had many “enhanced” versions, but surprisingly the original ROM was available until the Wii U eShop shut down last year. Also aurprisingly, new old stock of the PS1 version could be bought from Square Enix up until a few years ago.
There are countless other remasters or ports that replace the original which is then never sold again.
None of that presents any kind of legal difficulty.
If a game is recompiled under a new architecture, it's still the same graphics and text and levels and everything. It's not really any different from a new printing of a book in paperback instead of hardcover and in a different font. The copyright on those elements remains intact.
If you're simply talking about access to previous versions for researchers and archivists, that's more of a question of archival practices than of copyright. Which is a very interesting conversation, but a totally separate one.
It may it matter to you, but it certainly matters to competitive, speed run, and enthusiast communities around different games.
I mentioned Sonic 3 because it’s not the same music after the initial release. Depending on the version, Symphony of the Night is not the same levels or graphics. There are multiple versions of Revenge of Shinobi which replace various bosses for the Sega Genesis. Final Fantasy VI may or may not be the same code. Later versions may or may not use resources from earlier versions, sometimes a release is a completely new game with the same gameplay and aesthetic (this was especially true in 16-hit and earlier eras when arcade and home versions were complete reimplementations of the same game).
They might have the same name, but at what point does the Ship of Theseus become a different thing?
> They might have the same name, but at what point does the Ship of Theseus become a different thing?
Who knows, doesn't really matter. Like with most things, the courts can determine on a case-by-case basis whether or not a particular thing currently on sale is similar enough to the old/original version of it such that the original thing should still hold copyright. Not really a big deal from a legal standpoint.
My original reply was to a post suggesting something go into the public domain so many years after it has stopped being sold. I was just trying to illustrate how quickly that becomes a tricky problem.
I don’t think that concept is viable for other reasons, so hypothesizing is all we’ll ever have.
>It's not too short for things that have stopped being sold. If a book or video game has no more commercial value in selling, why not end its copyright?
Well that's more for exploiting. They can stop making copies of say, Horizon Zero dawn that came out in 2017. And maybe they stop selling it in 2019 (in this theoretical) . Just when the 5 years are almost up, they start making another retail run of it, or the remaster in this case. Repeat and iterate until you get bored.
> I guarantee you most of the stuff no longer being sold, they don't care about because it's not profitable anymore. If it was profitable, they'd still be selling it.
I want to thank that, but companies still prefer to hoard IP's, if only to keep others from working with it. There are several IP's from now defunct companies that got picked up by non-gaming studios, who obviously have no intention of ever making a game. They just want a cut if anyone ever wants to try. Or to sue when fans try to do stuff with it.
For 5 years in advance, it's not hard to keep a disc run or remaster in mind. Just look at Sony. For a longer term like 20 years they need to be more creative.
> I want to thank that, but companies still prefer to hoard IP's, if only to keep others from working with it. There are several IP's from now defunct companies that got picked up by non-gaming studios, who obviously have no intention of ever making a game. They just want a cut if anyone ever wants to try. Or to sue when fans try to do stuff with it.
And this is exactly why the suggestion upthread is a good one. As a society, we shouldn't allow people to hoard IP and withhold it from the public.
How would you deal with digital versions now? Publishers will just leave all the PC versions on steam and call it a day. Those will never expire as long as the publisher remains in business.
As long as it's still for sale, and sales will actually get fulfilled, and there's a reasonably-widely available platform the game will still run on, that's fine. The point of the 5-year suggestion is to ensure that people continue to have access to these works. Forcing things into the public domain (after a 5-year not-for-sale period) is one way. Keeping things for sale so people can buy them is another.
Yeah, that's the other can of worms that I didn't go into. Even if a game gets delisted from steam, they can just whip up that digital copy "for sale" on their website or any other cheaper platform (since sales are No longer the priority, just keeping the copyright is).
It should be "20 years or whenever it's not commercially available, whichever comes first"
Otherwise, we'll still see companies make stuff and kill it and sit on it for decades. (Often binning fully-finished releases without ever letting it be sold ever -- see Discovery and Disney's recent releases)
Preservation should start the minute access is threatened, not some decades later when it's likely too late.
That's more of a question of weird tax law quirks related to corporate mergers, not copyright. It's not generally profitable to make stuff and then not sell it immediately.
And I certainly don't want to start a precedent where people are forced to publish things they don't want to. That's kind of the polar opposite of freedom and liberty.
> Often binning fully-finished releases without ever letting it be sold ever
If something hasn't been released yet, and never will be, then why does it matter? It might as well not exist.
No one should be obligated to publish something they want to keep private, for whatever reason.
Well ideally it would be twenty five years from date of publication with extensions of five years upon re-release, up to three times. Meaning you could, at most, get forty years, but only if you re-released the media in question before the original copyright term or the extensions ends. This means that only the most enduring media will likely get forty full years of protection. Meaning that, had a film come out in 1984 and not been re-released in any form since it's original theatrical run from 1984 to 1985, it's copyright protection would have ended in 2009. But if it got a VHS release in 1988, a DVD release in 2002, and a Blu-Ray release in 2009, it's copyright wouldn't have expired until just this year. To make this work, making sure sub-licensing and syndication do not count as releases (the show appearing on a television channel or a third party streaming service for example) would close some of the loopholes. This would also mean that for the full forty years of protection there has to have been physical media created, providing a protection that the data can't be arbitrarily revoked.
The retro wave hits everyone around 30 years, and again around 50. It would be interesting to have a non-continuous copyright claim. The first 15 years it's yours, then 15-30 it's public, 30-60 it's yours again, and finally 60+ it's public domain forever.
I think that would be incredibly frustrating. If someone were to make a commercial product derived from something that was in year 29 of its lifetime (while in the public domain), they'd have to stop selling it a year later.
The photo doubled down on the misleading headline.
I don't see where they outline the difference between games and books. This makes no sense at all. I can see where they would draw a line with proprietary IPs like old Nintendo games, but there's probably hundreds of thousands of games that have no owner.
I'm tired of video games being treated as something that they're not. They're not services and they're not just for entertainment. It's an art form and they become part of the broader culture, not to mention their full potential as an interactive medium has only barely started to be explored.
If there's no owner what stops the games from being distributed? Shouldn't it mean there's noone who can sue the distributor?
Suspecting nobody will sue you is not good enough for a distributor, I assume. It also means nobody is there to give you permission to something that is clearly not yours, which sounds risky. And still, someone with the rights might show up at any point.
And as others mentioned, I’m not even sure if the market is big enough.
I guess no one would stop someone from distributing, but presumably there isn't a huge market for these games and therefore no incentive. I was thinking it had more to do with preventing competition or something like that.
Most abandonware isn't really that cut and dry. During the NES/DOS days you might have seen companies fold and their IP become owned by no one. But even then, in many cases, the IP ended up being sold, and over the years ping-pongs around new owners.
Many times those new owners aren't really concerned with some 30 year old game from an IP they may not even remember having being distributed, but the fact they still could at a moment's notice is a possible threat.
But yeah, if there truly is no existing owner, it's basically free game (literally).
> I don't see where they outline the difference between games and books.
The difference is in who's money and how much is behind the law at the relevant points in time.
Sure, I was just wondering their reasoning behind it. Surely it can't be blatantly about making money, but maybe it is.
I don't know but I think it's not just about the old games that aren't produced anymore. I think it could be about protecting profit in other areas. They may want to control the Overton window so that it doesn't become thinkable that the same thing could happen to other video games or media. If a library is able to buy a video game and loan it out for free online, then that could become a problem for some models. Is it possible to loan movies and TV series online in libraries now?
If you have the resources, then a maximalist IP agenda would be the most rational, to extract as many rights as possible because it creates wider moat for attackers to cross. You keep them busy fighting things that don't matter to you, so they stay far away from your core business interests.
> is it possible to loan movies and TV series online in libraries now?
Absolutely. In fact it's unusually popular. In undergrad I remember the only people reading physics books were physics students, but it wasn't only film/media studies etc checking out DVDs. I'm just about old enough that unlimited streaming wasn't ubiquitous, so people would go to the video stations in the library and bingewatch there.
edit: despite my anecdote, this service is available online too, see for example the service, Overdrive, which is popular with municipal libraries.
This isn’t about checking out physical books, dvds or games cartridges.
> If you have the resources, then a maximalist IP agenda would be the most rational, to extract as many rights as possible because it creates wider moat for attackers to cross.
That's the answer, the IP conglomerates aren't arguing in good faith, they just want to defend their moat as much as possible and push the debate outside of rethinking media consumption in the digital age.
Those IP conglomerates have nothing to gain from any legislation change, they basically already have all the rights they could possibly have and want to keep their position. If that means throwing away some old games under the bus, they are happy with that.
> not to mention their full potential as an interactive medium has only barely started to be explored.
Any examples come to mind? I’d love to try (or at least read about) some games like this!
If you haven't played Rez/Rez Infinite yet, you owe it to yourself to. The game is 22 years old and it's still leagues ahead of most games in terms of what a game can do, what it can express. Rez is... difficult to describe but a start might be, it's Polybius (legendary arcade game) if it were developed by raver hippies. Its purpose seems to be inducing an altered mental state of "flow" and the joy that comes therewith.
Rez has the property of being so good that other developers (expectedly) made games that try to do what Rez did, missed the mark completely, and still ended up with really cool games. Thumper, Aaero, and Sayonara Wild Hearts come to mind, as does Jeff Minter's take on Polybius.
I've always joked that Sayonara Wild Hearts is a dimensional incursion from a reality where the Feel The Magic DS games never stopped coming out. It's interesting, the way influences collide in new works.
https://imgur.com/a/IzWkRjP.jpg
I'm hesitant to spoil anything, but Disco Elysium immediately came to mind for me.
Disco Elysium is more of a revival of the point and click adventure medium than it is an exploration of new territory, but art it undoubtedly is.
All pretty famous, but: Outer Wilds, Stanley Parable, Return of the Obra Dinn, Undertale
Paper's Please as well. Blows my mind that what look like a mundane puzzle game can evoke such a strong feelings in me. And that was the beta build of the game, barely any storyline just from the mechanics and design alone.
The article is missing a lot of context. The Video Game History Foundation (VGHF) has gone into this in great detail on their podcast, and slightly less detail on their blog. In summary:
Every three years, the US Copyright Office considers petitions for exemptions to the DMCA. The big famous example that everyone talks about is in 2015, teachers won the right to bypass DVD copy protection to preserve teaching materials. This exemption had been rejected at least twice previously, but they finally won approval in 2015.
Every three years though, it's a fight. Previous exemptions can also be withdrawn during these proceedings if the Copyright Office or the Librarian of Congress believes that the exemptions are not working as planned and are harming the market.
For a long time now, folks like the Internet Archive have been petitioning to legally allow digital lending of all kinds of content, including video games. This is far from the first time this exemption has been considered. However, these proceedings include testimony and discussion, and the Entertainment Software Association (ESA) always sends lobbyists to oppose the exemptions.
In the past, one of their main arguments that worked was that those who wanted to allow digital lending were customers and enthusiasts who wanted to open their own digital arcades. There was no serious scholarship behind it.
They also were able to imply that video games weren't culturally important like books or movies because they were purely entertainment, and therefore not worth studying or preserving. And this argument worked because indeed, the Registrar of Copyrights saw video games as lesser cultural artifacts.
That's one of the reasons why organizations like the VGHF became so important to the fight. By proving that there is an academic community and non-profits engaged in treating video games as seriously as they deserve. Because of that the ESA shifted its argument completely to the economic harms to the retro game market.
To counteract that argument, the VGHF performed a study last year showed that 87% of video games are no longer commercially available, so there's there's no market to ruin if those 87% were allowed to lend. They even proposed a lot of safeguards to limit the number of copies lent and DRM schemes to prevent borrowers from dumping the ROMs (which are out there anyway).
The ESA countered that those games would still be competing with retro games that are still being sold on the market, and that the protections weren't good enough. DRM can be cracked, and they don't trust the people who want to lend the games to not introduce side-channels to get around the restrictions. In their argument, only the rights holders can properly protect their games, and only with help from the DMCA.
It's worth noting that the Registrar of Copyright is famously even more strict than rights holders at these arguments sometimes. In 2012, they denied the request for teachers to break DVD encryption, even though lobbyists for the motion picture industry said they would accept it.
And so that's what this news is about. Despite the lobbying and the studies, they sided with the ECA, seemingly taking their arguments all at face value.
I should also note that publishers do often go after libraries for lending books. It's often said in these circles that if lending books through a library weren't already common when the DMCA was enacted, we'd have to fight just as hard every 3 years to get exemptions for what libraries have always done, and we still probably wouldn't get everything.
> Current rules in the DMCA restrict libraries and repositories of old games to one person at a time, in person.
Countdown to Internet Archive getting sued on this one starts now. https://archive.org/details/internetarcade
I give IA money every month, and I encourage everyone to do the same.
I understand that the current state of copyright put them on thin- to no-ice. But that shouldn't be the case, IMHO. It's a net gain for the universe to let them loan these out-of-print materials. Publishers are working hard to make sure it's very expensive or impossible to do Internet lending. And Internet lending is exactly what the future of libraries should be unless we want to be stuck in a perpetually diminishing 1990.
IA is fighting the good fight against some seriously long odds.
I think they might be pushing it too far though. Archiving software should not be allowed to threaten the internet archive?
It's a popular criticism, but what's the conclusion? Don't fund the IA and let it die and with it the whole concept of end-user control of the things they buy, intellectual property for the masses, etc.?
Also, it's popular criticism - things go wrong, the team gives up a few goals, and the bad response, the loser response, is when people start pointing fingers at each other in the locker room. The right respnose - the only one that wins - is to pull together and fight harder.
If anything, the players slapping each other on the ass cheering each other on as they lose game after game seems like the problem here. Not criticism from fans.
Maybe they could pick one sport -- archiving things -- and focus on that for a while?
https://ncua.gov/newsroom/press-release/2016/internet-archiv...
https://www.rollingstone.com/music/music-features/internet-a...
When you have revolving door regulators, almost impossible to expect regulation that benefits individual freedom over special interests. Copyright is supposed to protect creators while they market and deploy their IP from others selling unauthorized copies.
But.. can any legal experts here explain otherwise, that this is a smart ruling?
> When you have revolving door regulators, almost impossible to expect regulation that benefits individual freedom over special interests.
No, you just need to clearly and effectively pressure elected officials, and to do that you need to raise awareness, educate people, etc.
> almost impossible
Never accomplished anything ever.
So piracy just gets boosted again. Nothing really changes here.
On the plus side, the games most in need of archiving take up a relatively small amount of space. Old CP/M and Commodore-64 games are so small you can easily store all of them on a cheap disk.
The more people who have complete archives (even if they're not being distributed freely) the more likely these games will survive.
Games are information. You can literally print the game's code and assets on a book.
And then you could lend pdfs of these books, and distribute an interpreter that runs them.
As long as there is creative expression involved in the translation, that may be accurate.
That’s effectively what the decomp community is doing. Instead of PDF and interpreter it’s git and compilers. (Though music and visual artwork must be excluded for different copyright reasons).
Love this comment
Can you though? Harry Potter is information too. You can't legally print your own copy of Harry Potter and lend it out at a library. Libraries could save a lot of money if they could do that.
Everything is information if you try hard enough. That's not really an argument.
During covid I wanted to enable the local arcade in Amsterdam (Blast Galaxy) to stream their old boards to subscribing internet users for internet play, however I consulted with one of the leading IP lawyers in the city & was told basically "nope".
My pitch to the lawyer was that it was simply a case of "longer wires" in terms of board input and output, however there is something in EU law that addresses encoding and transport over networks which causes the issue in terms of IP.
Super disappointing.
I am not sure I fully grasp what’s at stake here. Does it mean that: * Only 1 person at a time can borrow play a retro game physically (in a dedicated library) even if there are more than 1 copies available * Libraries cannot offer remote access to their retro games (I wonder, can libraries offer that for books? In know my university library had a digital library but that’s it) even if safeguarded I don’t really understand the actual consequences of this new ruling, the article doesn’t really explain that in my opinion.
The big deal is that it can’t be over the Internet, even if restrictions are in place to ensure only one user can access one copy at a time.
Zediva and Aereo had the same issue, albeit in a commercial application. I was hoping libraries would be given a little more freedom since their purpose is educating the public.
> can libraries offer that for books?
Not without separate licensing for electronic lending. At least that’s what publishers insist.
It's wild what a reign the anti-digitization forces have had.
The law keeps contorting itself into knots to entrench specific versions of the past. The Aereo lawsuit comes to mind as wildly anti-civilian, concocted to make the legal regime as tall and wide as possible. It's just so sad that legalism and Terms of Service feel like they are in a race to remain bigger than technology & possibility, to keep things the same.
Maintaining copyright should require a duty to distribute. If you do not distribute (at a reasonable price, no tricks allowed) your work, the copyright should just expire because you clearly aren't making any more money.
Creating copyrightable intellectual property is an investment, where you spend many hours doing work for free in the hopes that it'll pay off in the long term. What you are saying is "too bad, you have to do a bunch of work for free, then continue doing a bunch of work indefinitely into the future, otherwise we'll steal your investment."
Nobody would say that your stock purchases should expire if you're not actively meeting with a financial advisor or following the market. "Finders keepers, you weren't using your copyright" is just a recipe for artists to get robbed by lawyers.
Besides commercial rights, copyright also includes moral rights: the right the author has to the integrity of their work.
https://en.wikipedia.org/wiki/Moral_rights
I kind of like the idea of allowing verbatim redistribution if the author or their estate is demonstrably not planning to make money off it, but attribution and integrity of the work should be preserved.
Moral rights should be preserved indefinitely, yes.
Big IP holders make a large effort to mix both of those so they argue in bad faith that their profit advances human culture. Do not fall for it, they are very different things, and if somebody proposes extra protection for moral rights, only those big IP holders will be against it.
Distinguishing work for hire vs personal work would help, as well. Most commercial copyrighted works are created using a work-for-hire model (similar to textbooks). This isn’t what copyright was meant to protect.
This is 100% wrong, the very first copyright law specifically included editors and publishing houses as entities who could hold copyrights for work done by employees or contributors. Many reference books / etc were done by teams of professionals and their employers owned the resulting work.
You are appealing to people's ignorance (including your own) by evoking an idyllic past that doesn't actually exist. The copyright problems between individual authors are substantively indistinguishable and the law correctly acknowledges this. The only difference is completely insubstantial: irrational emotional appeal.
https://en.wikipedia.org/wiki/Statute_of_Anne
While I’m not terribly familiar with the Statute of Anne, the Wikipedia entry clearly states it was the first copyright law to be regulated by the public and granted copyright to authors which could then transfer that right to a publisher.
“It also marked the first time that copyright had been vested primarily in the author, rather than the publisher, and also the first time that the injurious treatment of authors by publishers was recognized; regardless of what authors signed away, the second 14-year term of copyright would automatically return to them.”
Your source, as best I can tell, has nothing to do with work for hire or collaborative works.
While trying to find more information, I came across this article from Cornell[0] that suggests the idea that an employer would own the work of its employees was a novel concept that originated in the late 1800s and was codified in 1909. That’s long after the Statute of Anne and early US copyright laws.
While your idea is certainly not one I’m familiar with, you seem relatively confident in it. Is there something I’m missing?
0 - https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?arti...
I don't like that idea at all - why should an author be obligated to do ongoing work in marketing / publisher schmoozing / etc to keep their copyright? If someone wants to republish an out-of-print novel that's still in copyright, they should at least have to pay royalties - perhaps it's acceptable if the author can't refuse a reprinting, but they definitely need to get paid. Otherwise small authors would have their IP stolen out from under them by publishers with teams of lawyers: sole proprietors don't have the resources to keep older copyrights "alive."
Not to keep all of their copyright, just their commercial rights. I say if the thing has been out of print for say, 15 years, verbatim distribution should be allowed.
Copyright itself only lasted about 15 years originally, which is a reasonable amount of time to commercialise a work. If you haven't done anything commercial with it in 15 years, it seems reasonable to me to allow the public to enjoy the work.
Maybe duty to distribute is too much of a burden. Implied permission to distribute with a reasonable payment seems acceptable for me.
Honestly I think the right to remix and derivative work would benefit everyone a lot more. Never going to happen, but I think society losing a lot due to how hard it's to profit from adding your own work to someone else's work.
That's kind of expected. Folks over at the emualtion subreddit @ reddit are foaming at the mouth... when it doesn't even apply to them.
Did they expect that they would allow folks to check out other software like Photoshop at the Library?
Photoshop can still be purchased. This is about software that is no longer offered on the market.
Pedantically, Adobe no longer sells it out right, but they do let you rent it at various price levels via Creative Cloud.
https://www.adobe.com/products/photoshop/plans.html
That's correct - today if you want to actually buy Adobe Photoshop, you have to buy from a vendor other than Adobe (and you will miss some recent features).
> Did they expect that they would allow folks to check out other software like Photoshop at the Library?
Ominous-they would really like to disallow it. But yes, of course you should. When you get a license key that's a seat. Commercial software has been making this work forever with license servers.
Like this isn't some crazy mental model. When you buy an iPhone you bought the hardware and one indefinite transferable license to run iOS. How else should software ownership work?
Licensing is different from fair use and copyright. The games the original article is describing had no license and were only protected by copyright (no different than a book or movie). Licenses can both permit and restrict things that copyright and fair use allow or don’t allow.
If you're a computer historian, there'd be some value in being able to check out an ancient version that, for example, works on 68k Macs.
At least my local public library has hundreds of CD-ROMs of Mac and Windows software (mostly from the 1990s when boxed software was still standard) that you can check out. Granted, I can imagine that's the sort of thing that will get "weeded" in a decade or so when the library needs space and they see this old software as being worthless.
As others have mentioned, some of that software is become very rare and collectible. Would a library lend a copy of “Indiana Jones in Revenge of the Ancients”?
The missing word from this inflammatory headline is extremely important: "remotely".
You can certainly access the physical game media in person, and check it out, no problem. The DMCA controversy is over remote access.
that becomes more difficult though since older games are in essence collectors items and would be stolen or not returned. It's like if most of the books in the library were out of print books that were highly collectable, a recipe for disaster.
Not saying they made the wrong call here or anything, but there is clearly a gap here between old games being made available and legal options to access them, libraries tried to own a physical copy and distribute a digital copy, which was an attempt at a fair compromise, but if that isn't allowed either then I guess piracy is the only options now.
Or having your government change copyright law
Wait, why would that matter at all?
Because until GOG and Steam, most video games were manufactured and distributed as physical artifacts, such as cartridges.
A ripped ROM image in an emulator is not equivalent to an Atari or Nintendo cartridge.
We do acknowledge that these artifacts are discontinued, and extremely valuable, but under DMCA, you literally can't have your cake and eat it too: the cake is a lie.
Under the DMCA, one is able to request an exemption, and the reason it wasn’t granted in this case seems to be lobbying by the industry. Even if none of that were true, why would I use an anachronistic law to define what is and what is not similar? That law should be replaced. Emulated and physical games seem quite similar in the important ways to me.
Yeah, especially since the publishers have ceased to produce physical media completely.
Without 'remotely', it is not available for 99% of users.