This page is a mirror of Tepples' nesdev forum mirror (URL TBD).
Last updated on Oct-18-2019 Download

Legal issues with publishing original NES games (2014)

Legal issues with publishing original NES games (2014)
by on (#135330)
"Discuss technical or other issues"

In this post, DragonDePlatino wrote:
would copyright infringement [by including well-known music in a homebrew game] really be a problem when there are already legal complications with creating NES cartridges?

Which legal complications? NES patents have expired by now, the "Nintendo Entertainment System" trademark would be used nominatively to indicate interoperability without endorsement, and the ruling in Lexmark v. Static Control Components sewed up any copyright trouble that I can see.
Re: Legal issues with publishing original NES games (2014)
by on (#135342)
Well, I've never been able to wrap my head around this copyright black magic, so when I said that it was only a hunch...

But what I do know is, if you're asking about the legalities of publishing NES homebrews on a site revolving entirely around them, you're going to get some biased interpretations of the law. :/
Re: Legal issues with publishing original NES games (2014)
by on (#135350)
As I'm sure that "intellectual property" is a biased interpretation as well, it doesn't mean our views are any less valid.

Now I understand that "Homebrews" can be understood to mean reproducing already published NES games on hardware. Which is a violation of copyright law just as much as giving/selling a digital ROM copy is. The copyright legalities lies with the contents and/or cover of the cartage.

Now what the thread title is talking about is in the case where someone is producing her own original work on NES hardware, including works she has full permission to do so. There's a lot to be said about who owns what and how much for copyright, but let's assume for the moment that this person is in the clear copyright ownership wise.

Making hardware I believe is only limited by patents (of which all NES related ones are expired), but the anti circumvention clause of the DMCA (a copyright law) has been used to interfere with ordinary normal hardware usage and studying in numerous instances. The hope is that the NES is so old that those provisions of the DMCA can never apply.

Non nondisclosure agreements, trade secrets and the like, could also hinder your knowledge of the hardware.

But really these kinds of problems exist just the same with *any* piece of equipment that deals with electronic information, and isn't unique to the NES.
Re: Legal issues with publishing original NES games (2014)
by on (#135352)
Using "Homebrew" to mean "reproduction" is just ignorant slang, even people like Mike Mattei have been guilty of using such terminology.
Re: Legal issues with publishing original NES games (2014)
by on (#135356)
tepples wrote:
Which legal complications? NES patents have expired by now, the "Nintendo Entertainment System" trademark would be used nominatively to indicate interoperability without endorsement, and the ruling in Lexmark v. Static Control Components sewed up any copyright trouble that I can see.

Is there any proof that all the knowledge available was obtained by clean room reverse engineering? As far as I know, all existing knowledge was obtained by either reverse engineering the games (copyright infringement, since we don't have the right to reverse engineer their games) and documentation (copyright infringement, since we don't have the right to have access to those documents). So while programming for it would be safe in principle, there's still potential infringement because of how the information was obtained, and that could give excuses for a lawsuit (whether they would win or not, they'd be relying on getting you not being able to afford the costs anyway).

Of course in practice Nintendo probably wouldn't bother by this point.

43110 wrote:
Making hardware I believe is only limited by patents (of which all NES related ones are expired), but the anti circumvention clause of the DMCA (a copyright law) has been used to interfere with ordinary normal hardware usage and studying in numerous instances. The hope is that the NES is so old that those provisions of the DMCA can never apply.

I believe the DMCA anticircumvention clause only applies when encryption is involved (not the case of the NES), but of course that wouldn't prevent somebody from trying to sue (after all in the end it's ultimately about who has more money).
Re: Legal issues with publishing original NES games (2014)
by on (#135360)
Sik wrote:
...all existing knowledge was obtained by either reverse engineering the games (copyright infringement, since we don't have the right to reverse engineer their games)...

Reverse engineering software can not be part of the clean room reverse engineering? If so, then there's a problem with any reverse engineering effort of modern hardware which will undoubtedly involve software.

Losing the right to reverse engineer happens when you agree to yield it with EULA's and nobody did so much as even click an "I agree" button when purchasing a NES or a NES game.
Re: Legal issues with publishing original NES games (2014)
by on (#135364)
Sik wrote:
reverse engineering the games (copyright infringement, since we don't have the right to reverse engineer their games)

The United States Court of Appeals for the Ninth Circuit ruled otherwise in Sega v. Accolade, finding Accolade's copying of Sega software for the purpose of researching the method of operation of the Genesis console to be a fair use. In the same ruling, the Court found that copying a small piece of information to get the machine to boot is not infringement, even if it causes the display of a trademark. The Supreme Court upheld this line of reasoning with respect to the "toner loading program" in Lexmark.
Re: Legal issues with publishing original NES games (2014)
by on (#135366)
If I ever publish a NES homebrew my only concern will be replace the classic grey case for a different one.
I have no idea if the grey cart design is registered by Nintendo but I think it's prudent to avoid using it.

Image
Re: Legal issues with publishing original NES games (2014)
by on (#135367)
If it's registered as a design patent, it has expired. If it's registered as a trademark, Nintendo can keep renewing it as long as Nintendo keeps using it as a trademark.
Re: Legal issues with publishing original NES games (2014)
by on (#135381)
Nintendo has nothing to gain from involving itself with the NES anymore, so it's unlikely it'll bother with any kind of NES-specific trademarks. Nintendo might care about the copyrights of program binaries (in the interest of offering games on virtual console services), but I don't think it cares about people making homebrews (custom games from scratch) and putting them on carts to play on an actual NES.

Reproductions (games that were part of the NES's commercial lifespan, to be put on carts and sold again now) have been a pretty gray area, but so far, Nintendo hasn't seemed to care, and copyright protection means nothing if the copyright holder has no interest in upholding it.
Re: Legal issues with publishing original NES games (2014)
by on (#135387)
Drag wrote:
copyright protection means nothing if the copyright holder has no interest in upholding it.

Yes it does, at least in the United States and other jurisdictions that criminalize copyright infringement. The FBI can in theory get involved even if the owner of copyright in a work is unaware of an infringement.
Re: Legal issues with publishing original NES games (2014)
by on (#135392)
Drag wrote:
Reproductions (games that were part of the NES's commercial lifespan, to be put on carts and sold again now) have been a pretty gray area


There's nothing grey about them, legally. It's a blatant violation of copyright. The reason it's easy to get away with is that it is such a small scale problem. Nobody's making enough of it to make themself a target for a lawsuit, for the most part.

The reason someone gets a repro is that they like the feel of a cartridge in their hands. The copyright holders aren't really doing anything that competes with that. The software itself is being pirated for emulation already on a scale that is at least a thousand times more frequent than the piracy by repro, and there's little they can do about that. There has been plenty of legal action against ROM hosts, but it's so easy and widespread that they can't do much to deter it.
Re: Legal issues with publishing original NES games (2014)
by on (#135426)
tepples wrote:
Drag wrote:
copyright protection means nothing if the copyright holder has no interest in upholding it.

Yes it does, at least in the United States and other jurisdictions that criminalize copyright infringement. The FBI can in theory get involved even if the owner of copyright in a work is unaware of an infringement.

Hypothetically, yes, but it'd be an awkward situation for the copyright holder to go "psh, it's fine by me" right after the FBI's investigation. Yes, it's infringement, but that doesn't mean the holder's going to press charges. Just look at the plentiful Sonic fangames, or Super Mario Bros. Crossover, and let's not forget the Half Life fan-content that Valve actively supports/encourages.

rainwarrior wrote:
The reason someone gets a repro is that they like the feel of a cartridge in their hands. The copyright holders aren't really doing anything that competes with that. The software itself is being pirated for emulation already on a scale that is at least a thousand times more frequent than the piracy by repro, and there's little they can do about that. There has been plenty of legal action against ROM hosts, but it's so easy and widespread that they can't do much to deter it.

Hence why I called it a gray area. The repros could be stopped, but they just as easily can be not-stopped. It might be spelled out as clearly illegal, but it's still up in the air as to whether there will actually be action or not.
Re: Legal issues with publishing original NES games (2014)
by on (#135583)
rainwarrior wrote:
Drag wrote:
There's nothing grey about them, legally. It's a blatant violation of copyright. The reason it's easy to get away with is that it is such a small scale problem. Nobody's making enough of it to make themself a target for a lawsuit, for the most part.

Yet... I wonder which eBay seller is going to become the next Bung. But yeah, a few or a dozen is definitely small fries compared to their issue with counterfeits or mod chips on the new systems (not just games are counterfeits, obviously). If they really wanted to, they could go all RIAA "lawsuit farming" on them but agree that it's unlikely.
Re: Legal issues with publishing original NES games (2014)
by on (#135727)
Hmmm...it's a coincidence, because just today I was going back through some of RinryGameGenie's videos and she briefly mentioned the legalities of reproduction consoles in her Retro Duo Review. So I guess since cartridges are just an extension of NES hardware, the patents expired for those too?

And I know this has already been mentioned, but I just thought I'd share since Rinry really puts it in layman's terms in her video.
Re: Legal issues with publishing original NES games (2014)
by on (#135729)
Cartridges are also covered by any applicable mapper patent, but those have expired as well.
Re: Legal issues with publishing original NES games (2014)
by on (#135835)
How about using commercial game cartridge boards to create carts for homebrews (not reproductions)? There are always gold plated "Copyright Nintendo (year)" notices in them.
Re: Legal issues with publishing original NES games (2014)
by on (#135838)
That's kind of akin to using book pages as patterns for a one of a kind artwork piece. Though I should think there's no longer any need to cannibalize old parts anymore.
Re: Legal issues with publishing original NES games (2014)
by on (#135839)
I like to call a donor cart a palimpsest. :)

Anyhow, I don't think there's any legal problem with it, but it makes some of us sad when it happens.
Re: Legal issues with publishing original NES games (2014)
by on (#135842)
Feel free to destroy any copies of Winter Games you want.
Re: Legal issues with publishing original NES games (2014)
by on (#136044)
tepples wrote:
"Discuss technical or other issues"

In this post, DragonDePlatino wrote:
would copyright infringement [by including well-known music in a homebrew game] really be a problem when there are already legal complications with creating NES cartridges?

Which legal complications? NES patents have expired by now, the "Nintendo Entertainment System" trademark would be used nominatively to indicate interoperability without endorsement, and the ruling in Lexmark v. Static Control Components sewed up any copyright trouble that I can see.


Even if the actual music were composed instead of ripped from existing code there's the matter of brand confusion. If the music is similar enough then in come the lawyers. AtariAge has seen that with a Particular Rom by developer Sprybug.
Re: Legal issues with publishing original NES games (2014)
by on (#139436)
The thing is that most (if not all) companies don't really give a **** about homebrews/repros, since it's such a niche market. It would cost them more to make a lawsuit than whatever they lose when people sell repros with copyrighted material. Also, as mentioned on this topic before, most patents/copyrights of the stuff that was copyrighted in the NES era has expired for a long time. The only exception would be Nintendo titles, since they still sell them on the virtual console.
Re: Legal issues with publishing original NES games (2014)
by on (#139438)
No, any games that weren't explicitly put in the public domain are still copyrighted and will remain copyrighted beyond our lifetimes. Only the patents that may have been applied for at that time (which only cover hardware) have expired. Mixing copyrights and patents is seriously dangerous territory.
Re: Legal issues with publishing original NES games (2014)
by on (#139460)
Dr. Mario is covered by a patent that expired in 2010. The program is still copyrighted, so you still can't put "Dr. Mario (JU)" on ROM sites. Nor will you be able to use the same virus graphics. But reimplementing any process described in US Patent 5,265,888 is now free, as US courts have struck down the practice of using a copyright to extend the effective term of a patent or using trademark to extend a patent or copyright.