This may be hot take, but I think games are art and are part of our cultural legacy, and making steps that stops us from enjoying us from that legacy should be considered a crime, especially when they put at risk art disappearing forever.
I would start with simple rules:
5 years after last new copies of the game stops being sold, pirating it stops becoming a crime
10 years after platform (console?) stop being produced, if there is no official emulator available, all emulators of that platform become legal
intentionally trying to stop people from buying a game without breaking above rules (for example, selling one copy for price of 9999$) is a crime
As a result, I would expect all companies to either invest in backward compatibility on unprecedented level, or more likely start porting their games to PC (because they will keep being produced), even if that meant selling copies to be used with emulators. When there is money on the table, or perspective of losing money, corporations are really quick to find solutions.
There are legal problems when creating emulators, sure people work hard to avoid them, but I don’t think they should have to do that in those cases, so I specifically wrote “all emulators” should be legal. For example, Dolphin to work requires cryptographic keys that technically belong to Nintendo, so they may be sued for providing them. Some emulators require you to find bios on your own because they can’t legally provide them, and their emulator doesn’t work without it.
This isn’t necessarily always true. PCSX2, the main PS2 emulator, for example needs a BIOS file that can only be obtained from an actual PS2 (or “illegally”). I’m not sure why that emulator requires it when others don’t. The closest thing to an explanation I could find online just said “legal issues”, but didn’t go into details. That makes me suspect that there was pushback from Sony about the emulator. So if such emulation laws were to be written they absolutely should protect in stone the right to create and use emulators. If a company can find a loophole to block you, they will.
We need a use-it-or-lose-it clause for all copyrights. If the rights holder is not making a good faith effort to sell copies, they should forfeit their copyright entirely and the work in question goes straight to the public domain. 5 years is generous, I’d make the grace period 6 months.
I’d take it a step further and say we need a good default license that kicks in after a certain amount of time has passed until the end of the copyright (at which point no license at all is required).
The price of the license will just be based on a formula that takes revenue and portion of the end product that uses the copyright material into account. So someone issuing their own print of a book that came out would pay more than someone who publishes a fan fic sequel and just uses the characters.
And trademarks still strictly enforced, since copying that is trying to pass yourself off as another producer, or fraud. Trademarks are how the original author and the good derivative works will be differentiated from the shitty ones.
Emulators are not illegal. ROMs are illegal if you didn’t rip it yourself. If you did rip it yourself it’s a gray area. See https://youtu.be/yj9Gk84jRiE
I think that these rules are unnecessarily over-complicating the problem. IMO, the best solution would be to amend copyright legislation to include a similar clause to the one found in the ‘fair dealing’ exemption of many Commonwealth countries - i.e “Can the work or adaptation be obtained within a reasonable time at an ordinary commercial price?” If not, copying the game is not an infringing act.
This strikes me as weird and unnecessarily convoluted. IMO the best solution would be to limit corporate held copyrights to 10 years after first publication or 15 years after creation, whichever is sooner, and limit individually held copyrights to the life of the creator. After that’s up, the work becomes public domain, and people can freely post it without repercussions, meaning the masses will handle archival and distribution essentially without prompting. Simple, with very few loopholes as far as I can see.
As a result, I would expect all companies to either invest in backward compatibility on unprecedented level, or more likely start porting their games to PC (because they will keep being produced), even if that meant selling copies to be used with emulators. When there is money on the table, or perspective of losing money, corporations are really quick to find solutions.
We’re already there. Backwards compatibility is the highest it’s ever been. With the rise of digital stores, popular retro games are on every platform that publishers think they can make money on. Re-releases of popular classics seem to happen all the time.
However, the sad reality is vast majority of those 87% wouldn’t be profitable to release. They are the games that sold poorly on release or have been out of the spotlight for so long that most people have forgotten they even exist. There needs to be work porting the release to new platforms, there are licenses to pay for music and licensed characters. I have no idea if residuals are a thing for video games but if they exist they cost money too. If a game hasn’t been re-released at this point, it’s not becuase there is some backwards compatibility issue; it’s because the bean counters have decided the cost of porting outweighs any sales it may generate. There is no “money left on the table” for them as it would cost more to port than they believe the game’s re-release would ever make. Those games will never be legally re-released and should fall into some sort of public domain.
This may be hot take, but I think games are art and are part of our cultural legacy, and making steps that stops us from enjoying us from that legacy should be considered a crime, especially when they put at risk art disappearing forever.
I would start with simple rules:
As a result, I would expect all companies to either invest in backward compatibility on unprecedented level, or more likely start porting their games to PC (because they will keep being produced), even if that meant selling copies to be used with emulators. When there is money on the table, or perspective of losing money, corporations are really quick to find solutions.
Emulators are not illegal, where did you get that from?
There are legal problems when creating emulators, sure people work hard to avoid them, but I don’t think they should have to do that in those cases, so I specifically wrote “all emulators” should be legal. For example, Dolphin to work requires cryptographic keys that technically belong to Nintendo, so they may be sued for providing them. Some emulators require you to find bios on your own because they can’t legally provide them, and their emulator doesn’t work without it.
If you bundle cryptographic keys, bios or other copyrighted content then yes obviously it’s illegal.
It’s not illegal to implement an emulator.
This isn’t necessarily always true. PCSX2, the main PS2 emulator, for example needs a BIOS file that can only be obtained from an actual PS2 (or “illegally”). I’m not sure why that emulator requires it when others don’t. The closest thing to an explanation I could find online just said “legal issues”, but didn’t go into details. That makes me suspect that there was pushback from Sony about the emulator. So if such emulation laws were to be written they absolutely should protect in stone the right to create and use emulators. If a company can find a loophole to block you, they will.
It’s required because a lot of the functionality of the PS2 is in the embedded software, the BIOS.
The problem is not the emulator itself, it’s the BIOS which is copyrighted. The emulator is not illegal, but bundling the BIOS with it would be.
We need a use-it-or-lose-it clause for all copyrights. If the rights holder is not making a good faith effort to sell copies, they should forfeit their copyright entirely and the work in question goes straight to the public domain. 5 years is generous, I’d make the grace period 6 months.
This is how you get Fantastic Four (1994)
I’d take it a step further and say we need a good default license that kicks in after a certain amount of time has passed until the end of the copyright (at which point no license at all is required).
The price of the license will just be based on a formula that takes revenue and portion of the end product that uses the copyright material into account. So someone issuing their own print of a book that came out would pay more than someone who publishes a fan fic sequel and just uses the characters.
And trademarks still strictly enforced, since copying that is trying to pass yourself off as another producer, or fraud. Trademarks are how the original author and the good derivative works will be differentiated from the shitty ones.
Emulators are not illegal. ROMs are illegal if you didn’t rip it yourself. If you did rip it yourself it’s a gray area. See https://youtu.be/yj9Gk84jRiE
I think that these rules are unnecessarily over-complicating the problem. IMO, the best solution would be to amend copyright legislation to include a similar clause to the one found in the ‘fair dealing’ exemption of many Commonwealth countries - i.e “Can the work or adaptation be obtained within a reasonable time at an ordinary commercial price?” If not, copying the game is not an infringing act.
This strikes me as weird and unnecessarily convoluted. IMO the best solution would be to limit corporate held copyrights to 10 years after first publication or 15 years after creation, whichever is sooner, and limit individually held copyrights to the life of the creator. After that’s up, the work becomes public domain, and people can freely post it without repercussions, meaning the masses will handle archival and distribution essentially without prompting. Simple, with very few loopholes as far as I can see.
Or limit copyright terms to ~20 years and repeal Section 1201 (together with 512 for good measure). That would cover far more than just old games.
We’re already there. Backwards compatibility is the highest it’s ever been. With the rise of digital stores, popular retro games are on every platform that publishers think they can make money on. Re-releases of popular classics seem to happen all the time.
However, the sad reality is vast majority of those 87% wouldn’t be profitable to release. They are the games that sold poorly on release or have been out of the spotlight for so long that most people have forgotten they even exist. There needs to be work porting the release to new platforms, there are licenses to pay for music and licensed characters. I have no idea if residuals are a thing for video games but if they exist they cost money too. If a game hasn’t been re-released at this point, it’s not becuase there is some backwards compatibility issue; it’s because the bean counters have decided the cost of porting outweighs any sales it may generate. There is no “money left on the table” for them as it would cost more to port than they believe the game’s re-release would ever make. Those games will never be legally re-released and should fall into some sort of public domain.