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Extended Copyrights In Games Means A Loss Of Culture For Gamers
by E Zachary Knight on 02/04/14 02:06:00 pm   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.


Originally published on Random Tower.

There is a bit of a hubbub about video games and copyright going on right now. It all started with a post over on Rock Paper Shotgun about why John Walker thought that games need to enter the public domain. He has a lot to say and I recommend reading the whole thing before commenting on anything he has said. The short version is that too many games are lost to time and not available for anyone to purchase. If those games had entered the public domain, they would be more accessible for modern gamers.

Naturally, these comments got a lot of people in the games industry riled up. Not all comments were knee-jerk. There were some thoughtful ones. Particularly a post by Steve Gaynor, one of the Gone Home developers, made some great arguments about how back catalogs of games and other media help fund new works. Another great response was from Paul Taylor, Joint Managing Director of Mode 7 Games. In this one, Paul discussed the public domain and how living creators may feel when their works entered the public domain during their lives.

But I want to look at this in a slightly different direction, that of the game consumer. What does it mean for them if games don’t enter the public domain? First I want to show something that I think many of you may have seen. This is what is called the “Mickey Mouse Curve” of copyright extensions.

Mickey Mouse Curve

Graph courtesy of TechLiberation

This graph shows the changes in copyright duration throughout US history. In the latter half of the graph, you see a correlation of copyright term extensions and the expiration date of Steamboat Willie’s copyright. Every time Steamboat Willie was about to enter the public domain, Disney lobbied Congress for an extension. It will once again be coming up for expiration in a few years, and we will probably revisit this debate.

What this means for game developers is that we have never lived in a time in which copyrights expired. Books, movies, music and more have all had times when certain works expired, often within the life of the creator. Additionally, before 1976 all works had to be re-registered in order to retain copyright status. However, not all creative works had their copyrights re-registered. This means that while many works continued to be covered by copyrights, many creators felt that some works had moved beyond the need for copyright. To illustrate this point, the following graph shows the percentages of works from various industries that were re-registered.

Percentage of works from various industries that had their copyrights re-registered.

Graph courtesy of Moral Panics and Copyright

Again, this illustrates a valid point for games. Games have never been in a period of time in which they had to have copyrights re-registered or in which their copyrights expired. If I had to guess how video games might fall into this graph, I would say the re-registration rate of video games would fall into a similar percentage as Movies, at least for the AAA industry.

But really, this is not the meat of my argument, but the build up to it. The real question is how much damage are we doing to culture and gamers by having such long copyright terms? To lead into this, I want to share yet another graph. This one shows the number of books available to modern readers based on the decade the book was published.

Books Currently available by decade published.

Graph Courtesy of The Atlantic

Now this graph does not show the number of books published by decade, but the number of books currently available to modern readers from those decades. As you can see, there is a huge gulf between the 1910s and today. Those older books that are still covered by copyright are less available to modern readers than books that are in the public domain. Just think of the thousands of books that are lost to modern readers because the current copyright holder has made no effort to make those books available.

So how does this apply to video games? I can’t say that I have made an extensive study of game availability, but I do want to show some data to help illustrate my point. If I had the time, I could easily expand on the following information, but we will have to make do with this small subset of games.

I took a look at one of the best indicators of older games and their current availability to modern gamers, the Virtual Console by Nintendo. Nintendo has made significant strides to make older games available to modern gamers. However, even their efforts are falling flat.

I looked up the number of published games on various consoles on Wikipedia and pulled together the following graph. This graph shows the number of games originally published for eight classic consoles and the number of those games available on the Wii, Wii U and 3DS virtual consoles.

Classic Console Games Available by Platform.That is a pretty sad sight to see, to be honest. Of the thousands of games made for those eight consoles, only a very small percentage of them are actually available to modern audiences on modern consoles.

Granted, this graph does not show other legal means that these games are available such as through remakes and re-release discs. But even if I were to take all those other means into account, the numbers would still not reach the full number of games made for those systems.

To further illustrate this, I have compiled a graph showing the number of classic handheld games available on the 3DS eShop.

Classic handheld games available on the 3DS eShop

This graph shows a striking similarity to the one above. Only a small portion of those classic handheld games are available to modern gamers.

However, these graphs only shows the legal means for which those games are available. Emulators are making up the difference at a far faster rate than the actual copyright holders. Of all those games missing from the lists above, nearly all or most likely all of them are available as illegal ROMs. Neither the lack of legal options nor the availability of illegal ROMs are doing the original creators or the games’ publishers any good.

I could compile similar lists for PC, Sega CD, Sega Saturn, Dreamcast, XBox, PS1, PS2 and many more platforms, but that would only show equally disastrous numbers. So the graphs shown above are sufficient to paint a very clear picture of my point. We are losing a lot of gaming culture to the lack of a public domain for video games.

The lack of a public domain for games is hurting the modern gamer by denying them classic games outside of costly and time consuming collecting. Considering the finite number of working cartridges and discs for those games, many gamers are out the ability to play them completely.

How much better would it be for gamers if we didn’t have such a dirth of games. Imagine if we pulled the ROM industry out of the shadows and brought it into the light and allowed those games to be freely and widely distributed. That is the power of the public domain. Instead of having fewer than 10% of games available through legal means, you will have closer to 100% of those games available.

I do want to stress something that John expressed in his article, none of this means that the original creators can’t still make money from these public domain games. Much like with GOG and the Virtual Console, people are more than willing to buy through official channels, especially if those channels promise a higher quality experience. That is one of the major benefits of being the IP holder/original creator, you have built in trust with the consumer.

So my question is this. What would you as a game creator want more, to have your games abandoned to the abyss of time or to have those games available free to gamers who want to play them?

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Kujel s
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"What would you as a game creator want more, to have your games abandoned to the abyss of time or to have those games available free to gamers who want to play them?"

My answer would be I want people to experience my games but I first want to make something off them so I can work on more games and not go hungry. I figure after ten years of a game being available is enough to make a decent amount from it and then it's okay for that title to pass into public domain. I feel the IP should remain in control of the creator (hower long they live) but the actual game should be made public domain.

E Zachary Knight
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Which is one of the reason why so few works were ever re-registered when the initial half of the term was up. Most people recognize that after a certain period of time, those works no longer bring in any income.

Tyler King
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I don't know I've bought a lot of games on steam sales that are definitely older than 10 years old.

Peter Eisenmann
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Also, console games need to be around ten years old before they can even be emulated with current hardware.
Nintendo has a large chest of old gems, but I suppose ROM sharing sites take away a lot of their potential revenue. However, many people downloading ROMs already owned the games many years ago and I think they have the right to use them, at least morally. Demanding 5 dollars for a 25 year old game boy title on the other hand sounds like a bit of a rip off.

Amir Barak
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Then again there's little evidence to currently show that public availability of old games would translate to players playing them. And the idea that something old is worth preserving simply based on its age is also somewhat misleading as well.

How many games are developed and produced right now though? Even with such a long copyright term it seems that we have more games created than ever, there's no evidence in any of the data to relate back to the stifling of either derivative or innovative work...

Concerning the third graph, how many of the 1910 books are sold at a profit by the Amazon? Is there any way to actually check how many were ordered, how many were actually read (if they are given for free I would say that people would hoard them simply because they are free rather than they intend to read them).

In the end why can't I decide whether my work ends in public domain? I might have reasons other than profit for not wanting to release rights of some of my work; why should I be forced to?

E Zachary Knight
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This isn't really about profit though. This is about availability. Those books from the 1910s are more widely available than books from the 1920s and thus more likely to be read.

But if you want to talk about profit, how many companies actually consider 10+ year old games to be a significant part of their profit portfolio? If they have written off those games, and there is a lot of evidence that thousands of games have been completely written off by the IP holder, how is not releasing those games into the public domain helping anyone?

However, I do agree with Kujel above. I would love a situation in which the games themselves are freely available while the actual IP is retained by the IP holder. In that situation, people could still play the game and the IP holder would be free from the fear that their characters and stories would be used for purposes they do not support. I think that is where my argument is leading.

So again I ask, what good does it do you or any of your fans if they cannot find your games in a playable format 10+ years from now?

Luke Shorts
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"I would love a situation in which the games themselves are freely available while the actual IP is retained by the IP holder."

I start feeling a bit like don Quixote fighting against windmills here, but I'd like to point out once more that there is no such thing as "actual IP". IP is just a popular buzzword to collectively designate a number of different rights, such as patents, trademarks, copyrights plus some others that are less known as they don't make headlines as often as those three.

Given that each IP right lives and dies independently of the others, even in case copyright expired earlier than it does now, you would still retain all the other pending IP rights on the work. For instance, if you have trademark protection on your "Fantastic Game Title", whose copyright has expired, you could effectively prevent someone from releasing "Fantastic Game Title 2". What you could not do is preventing copies of "Fantastic Game Title" from being made, or assets from "Fantastic Game Title" to be re-used in "Completely Different but Equally Awesome Game Title". In other words, it would be fairly clear that any new work originating from that game is not part of your "brand" and does not share the same creative vision that lead to "Fantastic Game Title" being made.

In view of this background, I must admit I don't really understand your position, because it seems to me that you are proposing to limit the term of copyright as far as making 1:1 copies of a work is concerned, but you would like to keep it as it (or extend it) in relation to the prohibition of creating derivative works.

If your main concern is availability, going back to the old system where you had to register the work in order to benefit from the entire term of protection or introducing some sort of copyright exception in relation to works that are not legally available anymore (which was the gist of Paul Taylor's proposal) would be equally effective.

Kyle Redd
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"I might have reasons other than profit for not wanting to release rights of some of my work"

What are those reasons? I am quite interested in your response, as I have yet to see any answer from any other game publisher/developer that is not about money.

Considering Zachary's (accurate) observation that virtually all games older than a decade are already available through illegal means anyway, I am having trouble conceiving of any other possible motive to prevent their legal distribution.

Amir Barak
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Do you keep your car doors unlocked just because its easy to steal a car. Obviously there are enough cars for everyone in the world, should we just be able to legally get in any car we feel like and drive off because it's easy to steal one?

I have a line of games designed to tell a very specific story about very specific things that happen to very specific characters. Making these games is going to take me a lifetime (if not more and then I can tell my kids to continue, or someone else). Why should the first game and its world suddenly fall to public domain in 20 years? I don't want people to have the right to copy and alter my work ever, I also never felt the need to take on other people's work (without their permission) and expand on it or remix it or whatever. I prefer working on my own worlds more to be honest.

Copyright materials have neither repressed creativity or stopped people innovating (or stealing for that matter, but what can you do really). Why are we so scared to let authors retain copyright over their creations, why can't we be happy about other people's creativity without needing to stick our noses into it?

E Zachary Knight
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"In view of this background, I must admit I don't really understand your position, because it seems to me that you are proposing to limit the term of copyright as far as making 1:1 copies of a work is concerned, but you would like to keep it as it (or extend it) in relation to the prohibition of creating derivative works. "

That is my suggestion in a nutshell when it comes to game preservation and availability. It is a solution that could be made voluntarily by game developers without need for changes in current copyright law.

The alternative you propose would require an act of Congress, literally. Congress would have to pass a law that allows copyrights to expire after a set period of time but also extendable through regular re-registration up till the life+50 years current international treaties require.

Luke Shorts
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Thanks for the clarification. I thought you were advocating a legislative change, not a voluntary initiative within the current copyright framework.

If that's the case, the main problem I see is that often rights get "lost" or are transferred to someone who is not even aware of what that IP means (see what happened with System Shock 2, for instance). In such a case, it's not realistic to expect that the rightholder will agree to release the game as freeware. As a matter of fact, I am aware of very few occasions where i) the rights have stayed with the original dev and ii) they have agreed to release the game as freeware (like it happened with Beneath a Steel Sky). Maybe things will be different in this age of self-publishing but I am not too sure.

Of course, if no one knows who's the copyright owner abandonware sites can easily put the game up for download, because no IP right has any value if the rightholder won't or can't enforce it. This is the situation today for many titles and I think we both agree it's far from optimal.

Hence, I doubt that the situation with respect to availability for old titles will improve without a mechanism that works by operation of law, be it the compulsory registration after a certain time (which is a solution that admittedly does not mix very well with the Berne Convention) or something completely different.

E Zachary Knight
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From what I understand of the Berne Convention requirement is that copyrights have to be able to be life+50 years, but it does not prevent the implementation of a law that allows copyrights to expire before then if the copyright holder does not take added action during that time. As long as the holder has the ability to continue to re-register till life+50 years, it satisfies the requirement. But because no country has a law like that, no country wants to take the plunge.

As for abandonware, books have a very similar problem. The current operating term is "orphan works". This means the works exist but no one can find the copyright holder. If the copyright holder cannot be found, there can be no legal way to get those works. Copyright law really needs fair use protections for people and companies that redistribute orphaned works, but Congress is afraid to touch the subject.

Luke Shorts
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the Berne Convention, Art. 5(2), first sentence:
"The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. "

It is common ground that "no formality" in the language of the Convention means "no registration". The rights the article refers to are mentioned in Art. 8 to 15 and include the right of reproduction (i.e., the right to make copies). The minimum copyright term prescribed is - subject to certain exceptions - life of the author plus 50 years, Art. 7(1), as you correctly cite.

I am aware of the problem of orphan works, but I did not want to bring it up because we were mainly talking about games. In this respect, in EU the issue was brought to the attention to the European Parliament last year (although, to be honest, the proposed solution leaves a lot to be desired) and currently they are considering (although it is still early to know where they are headed) to reform the so-called Copyright Directive, including its system of exceptions (which play the same/similar role as Fair Use in the US). There is no reason why Congress could not take up the subject as well, provided enough awareness is raised about the issue.

E Zachary Knight
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Hmmm. I will have to do further research on that. What you say about the "no formality" clause makes sense in context. Perhaps I am remembering my previous conversations about it incorrectly. Perhaps those conversations were more of a "this is a weakness in the treaty and this is the proposed fix".

As for orphaned works, I believe that it is well worth discussing, especially in the context of games. So many studios have sprung up, failed, merged, been bought out, been traded etc etc that many works have been lost because no one knows who the actual copyright holder is. Very much like orphaned works in books.

Alfa Etizado
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I feel this is part of what's missing in this discussion about public domain in games. The idea of public domain is arbitrary, as is how long it should take for something to enter public domain, as are the copyright laws that protect intellectual property.

Since it's all very arbitrary the arguments for or against games entering public domain or how long it should take for that are arbitrary too. But looking at these numbers we can better see what's the potential benefit to society and potential benefit to developers and weigh them.

Harry Debelius
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A tricky issue... This comes into the same lines as game preservation. Entire libraries of games are unavailable, and that is a sad fact regardless of the number of players that would actually play them.
Cinema had the same issue and no one worried about preservation seriously until almost the 50's, which left them with a lot of footage lost over the years.
I would like that, in the future, I could show my kids what video game history is about. More than games, benefit or anything, this is an issue of culture accessibility, and in that sense video games are well behind any other media.

Ruben Gerlach
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Interesting discussion. I like the idea of the need to re-register your games. The problem with definite expiry I see lies in the nature of online games and such. I am making a huge effort to support my mobile multiplayer games over a decade, and then they suddenly become public domain? That would destroy my business. But with re-registering, this issue might be solved. Given that I don't forget about it over all the other stuff I have to wrap my mind around in the mean time.

Nathan Mates
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Some systems are weird enough (Sega Saturn) that good emulators have never appeared, possibly never will -- because the systems are obscure enough and technical interest doesn't match up to the difficulty of emulation. So, it may be a case that original hardware may be needed to play a game, regardless of public domain. I speak from some knowledge here, in that I was the lead programmer on the Sega Saturn version of my first commercial game in my career, Ten Pin Alley. I didn't do anything complex, just use the Sega-supplied libraries to push some polygons. And occasionally, I look at the state of Saturn emulation every few years, to see if it can play my game. Not at last check.

Once you get into multiplayer games with a server software stack that's never released to end users, and is probably lost in a server reformat by the publisher, public domain won't resurrect a hard driver (and the entire server stack) that doesn't exist anymore. Even if there was a copy of the source code around, if the publisher used the same private key for a newer, still published game -- that's asking for lots of trouble.

How about a less-drastic than enforced public domain: use supply and demand to drive down prices. Back to the Sega Saturn -- I dusted mine off to show my kids my game. Then I looked at review sites to see what the good Saturn games were, and cross-referenced with eBay. Sorry, but not going to pay $40-200 for a game. If publishers could do the console-equivalent of GoG, where older (say 5+ years old) titles can be legally reprinted on CD/DVD. Allow people to publish those discs and flood the market with copies so that prices are level prices -- $10 max for older games, others around $5. Make the reprinted CD/DVDs are clearly labeled -- and maybe a manual as a PDF download only -- so that collectors can go pay $200+ for the original release, and others can go play the older games.

David Collier-Brown
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In part, this is a structural (meaning legal) problem. Both Canada and the U.S. have protections for designs, sometimes called "design patents", that protect the ornamental design of a functional item.

For example, a particular singing, banjo-playing mouse might well deserve protection, as might a particular flying plumber. Flying servicemen in general do not, nor do singing mice.

A wise company with an enduring character like Micky or Mario might well apply for a design patent on the important, artistic stuff, at the same time as it argues for the shortening of copyright on the mere "functional" bits of a game.


Jez Sherlock
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You mention emulation, then go on to say:

'We are losing a lot of gaming culture to the lack of a public domain for video games.'


'The lack of a public domain for games is hurting the modern gamer by denying them classic games outside of costly and time consuming collecting.'

Fact is, through a combination of both legal and illegal means very little is getting 'abandoned to the abyss of time' and the two statements above don't hold up. And this is before we've even considered the archiving attempts of some people and even retro game collections and museums, where the history is being preserved just as it is for many other historical cultures.

We can't spend our time arguing about the importance and legality of emulation as we often do then all of a sudden hold it up as not a valid option while we make other statements. This is effectively what you have done above...your graphs change considerably when you take into account all options.

Look, I can find stores or ebay and obtain pretty much any hardware/software from the 90's. A lot of the same applies to the 80's but for where that isn't the case, the emulation scene fills in. For anything not available to me personally (and for all the above when it is) I could find preservation and archiving projects somewhere.

Frankly, with all the options...the culture and history is not getting lost. I can either play it, or if not soak up the culture somehow.

Leave the decision up to the authors. Those that don't want to make money often do give some sort of blessing to copying for emulation purposes. I find it interesting however that some who have done this, have recently taken advantage of iOS/mobile game collections to make money.

You see, we also need to bear in mind that many authors don't have the means to market something old and would simply jump on the opportunity if it arises. We shouldn't automatically deprive authors of this opportunity - many of them didn't make a lot of money at the time, nor went on to do anything exceptionally lucrative. I personally wouldn't want to deprive anyone of a little 'later life bonus' that they never saw in the first place.

E Zachary Knight
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"Fact is, through a combination of both legal and illegal means very little is getting 'abandoned to the abyss of time'"

And that is in spite of current copyright law. Nintendo, for example, is highly aggressive towards the emulation scene. If they had their way, all ROM sites on the internet and all groups writing emulators would be gone.

However, you are right in that those things are happening. It would simply be nice if those efforts were legitimized rather than forced into grey and black markets. The fact that they are on grey and black markets puts them outside the reach of many people who fear those areas. They would much rather go directly to and find the software and ROMs needed to play older games.

"Look, I can find stores or ebay and obtain pretty much any hardware/software from the 90's."

As the years move on, that will be harder and harder to do. How many working TurboGrafx consoles are there today compared to the number produced? What about working NES systems? While there are some efforts to recreate the hardware of older systems, those efforts are never a 1:1 recreation and don't run all games well. As an anecdote, I bought an aftermarket NES system and tried playing Duck Hunt on it. For some reason, all the ducks flew straight to the top right corner and never left. That is hardly a good substitute for the original game.

Jez Sherlock
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'The fact that they are on grey and black markets puts them outside the reach of many people who fear those areas.'

Yeah, I think the reality is that anyone really into classic gaming does not really fear those areas and anyone really avoiding it is more often than not just looking for a simpler option.

Which we need to bear in mind. Quite a lot of people do just want to spend a few bucks to play an old game on a new system. If titles are released into the public domain the motivation to put these titles into places other people cannot is not going to be there - an issue even if the titles are now freely available elsewhere. Freely available is not always going to equate to readily available, or available in the way you want and it can indeed compromise that.

I'm not really concerned about electronics dying over time. There are plenty around, even if progressively fewer in number and while that might make games harder for individuals to obtain, it doesn't invalidate any of the other preservation options. We do need to accept that old things do end up out of our ownership reach at some point or other. Very few people have certain old cars, most people only have museums, many ways we are lucky to have things such as emulation.

E Zachary Knight
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I am not really clear what you are saying here:

"If titles are released into the public domain the motivation to put these titles into places other people cannot is not going to be there - an issue even if the titles are now freely available elsewhere. Freely available is not always going to equate to readily available, or available in the way you want and it can indeed compromise that."

Based on the graph about book availability in the article above, the public domain books are far more available to modern audiences on their platform of choice than older books still covered by copyright.

I can go to Amazon or Google Play and download the entire H G Wells, Frank L Baum, Jules Verne and Alexandre Dumas collections of writings, all for free if I wanted. But I can't go there and get the entire George Orwell collection as easily.

"We do need to accept that old things do end up out of our ownership reach at some point or other. "

As for this, this is the sad reality of video games. While it is relatively simple to convert a movie for 35mm to Bluray, the same cannot be said of a Commodore64 game on the XBox One.

Jez Sherlock
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What I mean is that many game systems are still closed systems. Even some so called open systems are not really open enough to the extent where people can readily take a public domain property and put it out there, either at all, easily or without special knowledge.

Wherever public domain releases can occur though: then if that should occur, what motivation would developers/publishers have to make the same now freely available property available on the closed systems?

They wouldn't. Half their market has gone and got it freely elsewhere. The remaining market, who perhaps don't own the hardware it is available freely on or don't want to go through the hoops to deploy it isn't sizeable enough to justify the release. People who are quite willing to spend a few bucks out of convenience are then denied the enjoyment of the game.

Can you really see something like the virtual console existing in the world where everything is public domain? This sort of system is arguably the most accessible way of playing the most popular games you want to see preserved, but what you are proposing could easily take that away.

I see people playing these games less without these systems in place. I also see lost $. Which you need to think really carefully about. Times have been tough in the last few years even for big publishers. These debates of the last few days have already covered the idea that 'new game' wouldn't have been made if 'old game' profits didn't cover it, but that was a very specific anecdote and people are seemingly oblivious to the problem on a larger scale. The loss of profits from virtual console and emulation titles would hit, much much harder elsewhere. Revenues from such titles have been very important in recent years and if that went missing, we may lose some great game companies and if not, we would certainly see them changed beyond recognition.

E Zachary Knight
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"what motivation would developers/publishers have to make the same now freely available property available on the closed systems?"

I would say that the motivation to do so would be to increase the audience size for the paid offerings.

I use my e-reading apps primarily for public domain books. But I have also bought a few books as well. Had I not already been using those apps to read books, I probably would not have paid for those books I did. The same could be said of closed systems.

In your Nintendo Virtual Console example, the goal would not be to make money, or not much money, off primarily virtual console games. The goal would be to get people used to the idea of finding and downloading games from the online marketplace and then moving on to paying for the premium software.

The truth is, people are attracted to large libraries of games and other products.

Nathan Mates
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"I would say that the motivation to do so would be to increase the audience size for the paid offerings."

Such an approach would only work if the videogame console market gets away from the subsidized console -- give away the razor, make it back on blades -- approach. Game console makers have historically lost money on hardware, and counted on strength of catalog sales to make it up -- the attach rate. Nintendo's had the strongest back catalog system since the Wii, and it's not exactly paying off these days.

Or, to look at it another way, what initial profit margin would a console maker launch at if they knew their devices would be primarily used to hit up public domain games? You can be convinced you'd buy more games due to public domain being available. But, I'd say that most people who are interested in older titles primarily own PCs where the emulation scene is already full of pirated titles. Why would such people suddenly switch to a console? Again, if older titles were a gateway, then the Wii and WiiU would be a success. Data indicates otherwise.

Jez Sherlock
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How many of those books you bought were from the same publishers as the ones that you read that were taken from the public domain? How many were formerly from those publishers and some other entity made them available in your e-reader? How many of them are from publishers that still had the copyright and put them into the ecosystem for free, for the benefit of all?

I think the idea of Amazon (as an example) seeding the kindle ecosystem with free content they didn’t have to pay for themselves to create potential customers for all is very different to the idea of individual publishers contributing their own for profit works as loss leaders. Loss leaders typically work best for the store anyway, with everyone else just getting a slice of the pie including (as a publisher/non store owner) also your competition.

Unless of course you ‘upsold’ your own products in that specific title you had as a daring loss leader. Upsell. In retro games? Ugh. No thanks. I’d rather Nintendo be aggressive towards Rom sites while I illegally download them in the background, which is what everyone else with any sense would be doing instead of paying for an upsell polluted game. Or maybe not - in this hypothetical scenario they were freely available elsewhere, no need to illegally download. So, no upsell wouldn’t work either, it'd drive everyone away. A small slice of pie it is then.

Well, I don’t see book publishers doing this en-masse even now, just the store owners and I think this is proof enough it wouldn't work for games. I’m sure it has (to your point) created customers in the ecosystem, in turn becoming a selling point in bringing publishers on board. This wouldn’t however have happened if the books weren’t already ‘free’. Publishers would have either prevented it, or forced Amazon to pay/license the content if they still held the copyright.

Not convinced. Well, I think if you spoke to the game publishers about this idea, I don’t think they’d choose your ‘give the rights to the public domain, pay conversion development costs to closed system and then give it away for free or little as a loss leader' option.

Michael Wenk
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My take on this is that for the most part copyright works as is. I admit, the lengthening of time is a bit worrying, but in the grand scheme of things the time frame is minor.

What worries me is that people seem to think they have a right to profit off of someone else's creation. If you want to compete, awesome, do that. Make great content. But don't steal someone else's stuff. Because essentially that is what it is. Copyright exists to allow content creators to profit and more importantly control their IP. And by content creators I don't mean the individual developers, I mean the companies around that. If you're doing work for hire, then your content is work product and your employer owns it. If you want to license the work using a open source license then great. I love that. But the point is and shall always be that it is the content creator's choice. Not the consumer, the competition, the gov't, but the creator. Feel free to lobby him/her to the fullest extent you are allowed to.

Speaking as a developer, it would really piss me off if you removed my choice of licensing. If I want to OSS a work, I will. Don't force me to do so.

Michael Eilers
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This discussion is interesting, but extremely short on the actual technical details. There are a lot of ugly elements from the copyright and trademark process that are being ignored.

The first element being ignored here is cost. It will cost between $5000 and $25,000 in legal fees to determine the proper ownership of a product, IP (as a catch-all term) or trademark, and set that as a legal fact. Typically, to even get the attention of a copyright lawyer, you need a retainer of $10,000 or more; this technically is money "on hold" and you could possibly get some of it back, but the law firm will always find a way to drain that pool of money (discovery, clerk fees, research fees, etc) and retain 80-100% of it.

If you say to a rights-holder that your rights to your work will expire after X years (10 or 20 seem to be the common argument here) you are essentially saying that their work will be held hostage until they come up with the money to keep it. If the company is still around, the designer is still working for them and the publisher is still around, it would be easy - just re-register the copyright, the fee is $60. HOWEVER, this is most unlikely to be the case - in most situations, the company, author(s) or publisher will NOT be around, or will be in a radically different form, which would then require a legal process (and the huge costs I cited above). So, "just re-register to keep your rights" is NOT a simple situation nor straightforward.

Jonathan Murphy
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Complex media such as film and game should be 10 years from point of sale. Comics, books, music and other media should be 20 years, and everything else 35 years. 100+ years is ridiculous. The content creators are long dead and the distributor is making cash on stuff they never created. The ultimate insult.

If my stuff can, or can't sell when I'm alive I sure as hell don't want someone farming my corpse.