Legal issues with publishing original NES games (2014)

[tepples]

"Discuss technical or other issues"

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.

[DragonDePlatino]

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. :/

[JRoatch]

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.

[Dwedit]

Using "Homebrew" to mean "reproduction" is just ignorant slang, even people like Mike Mattei have been guilty of using such terminology.

[Sik]

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.

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).

[JRoatch]

...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.

[tepples]

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.

[Macbee]

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.

[tepples]

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.

[Drag]

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.

[tepples]

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.

[rainwarrior]

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.

[Drag]

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.

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.

[alphamule]

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.

[DragonDePlatino]

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.