The Great Mystification: A reflection upon the feebleness of the "distribution denied" policy

edited November 2002 in Games
This argument has been debated several other times in this place, yet I have not expressed my thoughts about it, and I would like to hear comments by other people, since the argument itself keeps to be controversial. I do not claim to give the solution to the question; I merely would point some facts to the attention of everyone who could have an interest on the topic.

As many of us know, a handful of publishers/authors of Spectrum entertainment software in the past, namely Rare and Code Masters, have denied the free distribution of files regarding tape images, memory snapshots etc. of their products for use with emulators - however, we are dealing here only with the Spectrum scene. Some reasons have been given to explain this behaviour. The most common ones are:

a) They are the keepers of the copyright to the original products, so they have the right not to give them away for free distribution.

b) The possibility that someone could make profits by selling the files of their old games to Spectrum aficionados (on a compilation CD, for instance) could bring them an economical damage.

c) They could in the future produce titles based upon characters featured in those old games, so the free distribution of them could damage their sales.

Now, I will leave point a) at the end of the discussion upon these three points. But, before going on with it, I would like to give an example in order to further clarify my position.

The situation is, in my opinion, similar to that of someone who needs a book that is out of print, and the publishers have publicly stated that it will not be printed again. He can not buy it anymore, because he will never find it again on the shelves of bookstores; he could buy a second-hand copy, but he could not be able to find someone who has that book, and, in that case, he cannot be sure that the owner will accept to sell it. Now, let's suppose that someone makes photocopies of those out-of-print books and gives them for free. That would be a perfect solution for the problem, since:

1. It would cost nothing to get a copy of the book.

2. No one would be enconomically damaged since the book is out of print.

Some Italian publishers (e.g. Laterza) include a clause in the first page of their books, that where the bibliographical data are printed. It states, among other assertions (translated from Italian):

"According to Italian law, the photocopy is lawful unless it does not damage the author. Then every photocopy that prevents a book from being purchased is unlawful".

So in the aforementioned case the photocopy of that book would be perfectly safe and lawful. Who could be damaged by the free distribution of something nobody could ever make real profits on? However, point b) could pose a threat to this argument. This is not the case of the Spectrum scene, because: How many people seriously interested in the Spectrum emulation scene (excluding those who take an interest in the Spectrum only as a part of general emulation) are there in the whole world? I have been taking active part in that scene for more than four years by now, and I can estimate as optimistic a figure of about 100,000 Spectrum fans scattered throughout the planet. And how many of these people could actually pay for Spectrum files for use with emulators, when it only takes a trip to a Spectrum site like WoS, the TZX Vault, SPA, El trastero de Spectrum and so on to find everything you need, with zero charge? Moreover, even if some of those 100,000 people would accept to pay for Spectrum files of "distribution denied" titles, how many of them would buy them? And at which price? I seriously doubt that the assests of companies like Code Masters could be damaged by such a possibility.

Point c) is another useless argument. Let's suppose Code Masters release a new game starring one of the most beloved Spectrum game characters, Dizzy. The game would most probably be aimed to kids 10-15 years old. Now, anyone who has lived the Spectrum heyday has passed that age since years if not decades. Maybe he/she could buy the product out of nostalgia, but it's unlikely that nostalgia makes a game sell enough, moreover in this case, when the product is aimed to a young audience. In the case that all the estimated 100,000 Spectrum fans in the world have and use a console, according to point c) all of them should decide not to buy the game, since they already have their Spectrum games to use with the emulators. The absurdity of this statement is just enough to show how weak point c) is.

So we are left with point a). And this could look as the strongest argument of all. It is not a surprise that it is often quoted by those who, even in the Spectrum emulation scene, defend the point of view of the very few companies which have explicitly denied their old titles from being freely distributed.

I think that this argument derives from a distorted interpretation of the term "copyright". What is the purpose of copyright, I ask? Normally, it is intended as a way to protect authors and/or companies from being dealt a damage to their interests, through unauthorized distribution of their products. That is the case, for instance, of photocopies of a book that is still available for sale; or of programs that emulate consoles which are still officially marketed by their manufacturers, and files of games for use with such programs. These are, in fact, works of piracy, because by using them the purchase of the original product is avoided, thus damaging the original producers.

Now this is the point. I believe that Code Masters, Sony, the IDSA and so on do not make the fundamental distinction between emulation and piracy. Emulation, in the aforementioned cases, is always piracy; but piracy does not identify itself with emulation, when emulation is limited to products that no longer are distributed from their original manufacturers, and that are sought after only by an insignificant portion of potential users, as is the case with Spectrum software.

Of course, should the companies that have denied the free distribution of their Spectrum products for use with emulators publish those titles again, then the above point could no longer make sense, for the products would be available for sale from the original manufacturers again. However, the fact alone that such a product could be only aimed at a very small niche of potential customers makes that hardly possible.

"Copyright", I said before, is a way of protection from economical damage. But what damage could possibly be dealt to giants like Code Masters, or other companies which didn't even produce Spectrum software, like Sony or Microsoft, by a small group of nostalgic users scattered throughout the world, whose only purpose is to have a good time enjoying the classics of their youth? Moreover, there are many companies still active in the software market which have granted the free distribution of their old Spectrum titles, and, as of now, no one of them seems to have been damaged by the allowance of such a practice.

So, it seems that the whole concept of "distribution denied" is not based upon any rational argument. The only other one that could be mentioned is the right to "intellectual property": but what does this expression mean? That I cannot, for instance, make a game starring Dizzy and sell it to others? That's perfectly right, as I would, in that case, exploit the name of the character for my personal interests. But it should now be clear how deprieving the Spectrum emulation community of the delight of playing and freely distributing the old classics on the, in this specific case, feeble premises of "copyright", "intellectual property" etc. is nothing more than a complete and utter mystification.
Post edited by Alessandro Grussu on
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Comments

  • edited November 2002
    But why *should* companies allow distribution?
  • edited November 2002
    But why *should* companies allow distribution?

    Hmm. The only reason why companies *should* grant permission...

    Because it would be a nice thing to do - out of the kindness of their hearts. There is no other reason, and nobody can force them to do it. Besides, we can discuss this to death (again) cos the Codies and Rare et al don't read these forums.

    Shame the world doesn't work like that, though.
  • edited November 2002
    Philip, I'm afraid that you have missed the whole point of my argumentation. I am not saying that companies should allow distribution of their old games. All that I want to say is that the attitude of those companies which deny their old and no-more-on-the-market Spectrum titles has no logical and/or rational grounds, since it is based on a distorted interpretation of the concept of copyright, which leads to the conclusion that emulation and piracy are the same thing.

    Everyone is then able to draw his/her own conclusions about that.
  • edited November 2002
    On 2002-11-05 12:11, Alessandro Grussu wrote:
    All that I want to say is that the attitude of those companies which deny their old and no-more-on-the-market Spectrum titles has no logical and/or rational grounds, since it is based on a distorted interpretation of the concept of copyright, which leads to the conclusion that emulation and piracy are the same thing.

    Can you point me to one Spectrum company which maintains the position that emulation is piracy (ignoring Psygnosis as that was enforced from above by Sony)?
  • edited November 2002
    We can discuss this topic here, but I'm afraid it's a bit pointless:
    - None of the companies that you are addressing (Codemasters, Rare) are represented here
    - The WOS archive is a legal one and I don't think Martijn wants to sacrifice this status
    - You don't need to convince us (i.e. the spectrum gaming community) that it's a pity we can't play these denied games.

    As a side note, I think the link that you're making with books is a bit weak. A photocopy of a beautifully printed and bound book can hardly compete with the original, whereas a copy of digital data is one hundred percent 'the real thing'.
  • edited November 2002
    If I had designed a game on an old platform, i would want people to remember it and for it to live on, hence the usefulness of emulators.

    If any Speccy game was put up for sale and re-published, nobody in their right mind would buy it. And buying games from car boot sales etc does not help Code Masters etc.

    Its sad

    The same applies to The Amiga emulators. I really would love to play Amiga games that I once owned. I had an amiga which broke many years ago (as a result of my stamping on it playing stable masters). But surely having once paid for the hardware and software, I should be allowed to still play it. You can get amiga emulators, but not the kickstart rom. It's criminal
  • edited November 2002
    Philip Kendal:
    I can give you some examples (although their games haven't been removed from the WoS-arhcive yet).

    All companies that are members of IDSA have taken the stance that emulation is illegal and that old roms/old games must be protected. They have given the IDSA consent to take action against emulation sites etc. in their names. The IDSA claims that emulators are illegal, even if this is a blatant lie since the precedent that emulators and reverse engineering is legal have been set in several court rulings. Luckily for IDSA, lying isn't considered a crime.

    A lot of IDSA members own some of the old spectrum software companies. Infogrames own quite a few of them, and Activision still exists, which means that at least two major companies that own the copyright for Spectrum games hold the view that emulation is piracy (through their support for IDSA at least). There are probably more companies than these two, but I couldn't be arsed to compare the IDSA member list with the company owner status maintained here on WoS.

    If the IDSA would take note of WoS they could probably force Martijn to remove quite a few games from the WoS-archive.

    Some quotes from the IDSA faq page (http://www.idsa.com/faq.html) regarding their view on emulation:

    "The IDSA is authorized by its members, who own the copyrights and trademarks for their hardware and software, to act on their behalf against violations of their copyrights and trademarks. This includes taking action against unauthorized ROMs, unauthorized hardware and software emulators, and pirated software."

    "While some emulators are made by hobbyist programmers, that does not mean that they are legal."

    "In fact, most emulators that are freely available today are merely software emulators that have no role in the creation of properly licensed video games; these emulators have the exclusive purpose of infringing copyrights and are illegal."

    [ This Message was edited by: Lars on 2002-11-05 14:40 ]
  • edited November 2002
    Laywers don't think in terms of logic.

    I'm sure the original authors would like to have these games preserved but as most of these games are under the umbrella of huge software and publishing giants nowadays these considerations are less than important.
  • edited November 2002
    On 2002-11-05 14:37, Lars wrote:
    Philip Kendal:
    I can give you some examples (although their games haven't been removed from the WoS-arhcive yet).

    OK, fine. Are there any examples of companies, other than Sony, which have requested that Spectrum (or other 8-bit machine[1]) program images be removed because "emulation is piracy"?

    [1] possibly excluding Gameboys and other handhelds, although I'll accept them as edge cases.
  • edited November 2002
    Actually the Spectrum is probably one example where the 'emulation=piracy' arguement falls down because Amstrad allows the ROMs to be distributed freely.

    Unless Zilog starts complaining about the Z80 being emulated there's no argument about Spectrum emulators being illegal...
  • edited November 2002
    Philip:
    Capcom has also requested that WoS remove their games.
  • edited November 2002
    On 2002-11-05 15:32, Lars wrote:
    Philip:
    Capcom has also requested that WoS remove their games.

    Yes, I'm well aware of that fact. Nowhere in their request (
    http://www.worldofspectrum.org/showwrap.cgi?permit=houses/Capcom.pmt )
    do they say that they consider emulation to be piracy, which is what I asked for examples of.
  • edited November 2002
    Alessandro:
    I never saw point b) being used in any case. Besides, this is easily solved by handing out restrictive permissions, such as Zenobi did, so the point is moot.
    Point c) is much different to what you think.
    Let's use Dizzy from the Codies as an example. The character is trademarked to Codemasters.
    Now, if you allow people to freely download (old) Dizzy games, they not only directly lose the trademark, but they also lose the ability to ever get a trademark on it again, even if they decide to release a new game with that character. So it will take away all future chances. Rare recently did that with Sabreman (GBA)
    There's also a point d) that you forgot:
    The games we are talking about were not only released on the Spectrum, but also on many other platforms, such as the C64.
    The total userbase is therefore MUCH larger.
    If the companies gave permission for free distribution, they would deprive themselves from the possibility to create a retro-CD themselves, with their games on. This may not seem a big point to you, but some companies did just that in the past years, turning an enormous profit.
    Finally, there's a point e): where does an okay end? I mean, if they say Spectrum games may be distributed freely, how about C64 games? And how about Gameboy games? It's very easy to let your good intentions be misunderstood by greedy people, while it's so easy to just say "no" and be done with it.

    Lars:
    I'm afraid you're misinformed.
    The companies that let themselves be represented by the IDSA do not give the IDSA carte blanche to raid emulation sites at all.
    The IDSA cannot operate solely on their own, but must always check with the companies.
    Besides, the various companies represented by the IDSA have all been contacted by me to request permission. Most of them never answered my messages, but that does not mean they aren't aware of WoS at all (as I told them about it myself). The fact that their games are in the archive is because they never answered "no" to a simple direct question. Should they say "no" at a later date, I'll remove their games then.
  • edited November 2002
    Ok, thanks for the clarification Martijn. I based my post mainly on what was written in the IDSA faq, where they themselves wrote that they are "authorized by its members [...] to act on their behalf against violations of their copyrights and trademarks".

    Like most of the stuff they put in their FAQ (like emulators being illegal etc), this is probably just propagande and half truths meant to spread FUD I guess.

    [ This Message was edited by: Lars on 2002-11-05 16:50 ]
  • edited November 2002
    On 2002-11-05 16:21, Martijn van der Heide wrote:
    Now, if you allow people to freely download (old) Dizzy games, they not only directly lose the trademark, but they also lose the ability to ever get a trademark on it again, even if they decide to release a new game with that character. So it will take away all future chances.

    Are you sure about that? It seems unlikely to me that you could lose at once all the rights on the brand, just because you allow one certain product to be freely distributable for personal use. Should it be as you say, where would be, for instance, the point of shareware? Or of playable demos? Demos also contain characters featured in games, but demos are freely available and distributable. Maybe that's because demos are considered promotional material?
    There's also a point d) that you forgot:
    The games we are talking about were not only released on the Spectrum, but also on many other platforms, such as the C64.
    The total userbase is therefore MUCH larger.
    If the companies gave permission for free distribution, they would deprive themselves from the possibility to create a retro-CD themselves, with their games on. This may not seem a big point to you, but some companies did just that in the past years, turning an enormous profit.
    Come on, do you really think that the potential base of former 8-bit systems user is so large, that there could be a real profit to be made from it? To put it another way: Do you consider as possible the idea that, for instance, Code Masters could make a breakthrough by releasing a collection of titles for older, out-of-date systems that have only historical interest for a handful of people scattered throughout the Earth? It seems all highly unlikely to me. If someone has done so in the past, it remains to see who he was, how much time ago that was, and how "enormous" this profit was (I doubt that it was as "enormous" as, talking about Code Masters, what CM gained from one of their Colin McRae titles). Let's face it: as of now, in November 2002 AD, how many people are actually interested in the emulation of out-of-date systems? If they would be, say, a percentual as big as 20% of total PC users, then your argument could be taken into account. We are but a small drop in the sea of the PC scene.
    Finally, there's a point e): where does an okay end? I mean, if they say Spectrum games may be distributed freely, how about C64 games? And how about Gameboy games? It's very easy to let your good intentions be misunderstood by greedy people, while it's so easy to just say "no" and be done with it.
    See the answer above: Of course the same goes for all the other systems no more available on the market, not only for the Spectrum.
  • edited November 2002
    Now this is the point. I believe that Code Masters, Sony, the IDSA and so on do not make the fundamental distinction between emulation and piracy.

    Just going way back to that point made in the initial post ...

    Its easy to see why emulation=piracy in the eyes of developers. Take these examples ...

    [1] UltraHLE ... Nintendo64 emulator was released in 1999 and was capable of running commercial games (and running them very well too!) This is when nintendo started cracking down on ROM sites distributing ALL roms they owned, not just the N64 ROMs.

    [2] Gameboy advance emulators and ROMs are littered across the net. Several ROMs can also be dumped onto one 'flash' cartridge and played on a real GBA. Each ROM you download potentially loses the company money.

    [3] Rage of the Dragons ROM for the NeoGeo system has been dumped and is playable via some unofficial hacking/re-writing of certain emulators. This game was only released in 2002!!!

    So, just a few examples of why companies could easily assume emulation=piracy.

    Older systems where games are not available to buy have a weaker case but a company does not have to grant permission for distribution, no matter how old a game might be.

    The bottom line is ... its their ball, and they don't have to come out and play. :(
  • edited November 2002
    If writing an emulator could be deemed as illegal because of what you could play on it then isn't buying a CD writer also illegal because of what you could copy with it?
  • edited November 2002
    Alessandro:
    Notice how I only mentioned the trademark on Dizzy as an example. Other games might have no trademark, or other trademarks.
    But if Codemasters would give a general permit, their permission includes trademarked games.
    But before stating things about trademarks, you might want to actually read about it. They're not the same as copyrights or brand names. It's really simple: don't actively protect your trademark and lose it.
    Shareware authors don't register trademarks, do they? And using a trademarked component in your shareware or even freeware game isn't allowed either.
    Remember the legal fuss about the intended Speccy remake of Sonic the Hedgehog by Anestis, earlier this year? Sega didn't let him, because Sonic is a registered trademark.

    As for retro CD's, let's face it: it doesn't matter a single bit what you believe. In the end, the CDs I'm talking about were 8-bit games (Apple IIc) and they indeed sold in major volumes. So yes, they pretty much proved that the userbase is that large. Oh, and it was under 2 years ago too. There were other CD's last year, but I forgot who made them (some large software house). According to the publishers, these sold well too.
    You may have seen them in Italy as well; in The Netherlands almost every computershop carried them.

    Refrenz:
    [4] Most emulation sites couldn't care less about copyrights and don't even mention them. And how many sites continue to carry games for which the owners specifically asked not to do that?
    Most emulation sites are therefore pirating, plain and simple...

    Woody:
    That statement has already been dismissed in court earlier :)
  • edited November 2002
    If CD Writers were made illegal then twin tape players would. In an ideal world (from a software house/record label point of view) you would need some kind of permit to buy one.
    I'm a 21st Century digital boy, I don't know how to live but I've got a lot of toys.
  • edited November 2002
    Alessandro, you are "ethically" and morally right, however what you say cannot obviously be legally enforced. No matter what the "reason" behind copyright is, the truth of the matter is the companies hold rights over copy and distribution, period. If they do not allow that (or if they prohibit, in our case), the "reasons" they do that is irrelevant. So much for argument a).

    As for b), a company might develop a "re-make" of the game, and sell it together with its original. The original alone might not be available by itself, but they'd still be selling it. Unlikely, yes, but in their rights.

    Finally, c). Freely distributing an old game whose character is featured in a newer game might be seen as "competing" over the same image.

    They're all pretty lame points (I mean, *my* points), and we all know Rare or Codemasters wouldn't lose a penny out of allowing distribution of old games, but your statements cannot justify "copyright infringement". What they could do, though, is perhaps convince those companies that distributing would not be harmful, or could even turn into a few bucks' revenue. I'm afraid, though, that the whole legal thing is in the hands of bureaucrats who wouldn't step an inch back.

    Question: would it be feasible that we on the WOS get together and *BUY* copyrights over those games? Could one buy the rights? Just distribution and copy, all intellectual properties (graphics, characters etc.) would be left with the company.

    Getting late, mates...
  • edited November 2002
    You could always wait it out - if they don't use any of their charcters for some period of time - 35 years I think - they can't then be said to still have a claim to prevent distribution of these old games as they are no longer attempting to seek recompense for their copyrighted works.
  • edited November 2002
    Allessandro:
    Trying to buy the copyright will probably have one effect only: Every Spectrum game copyright holder (including the ones that have already granted free distribution) will approach Martijn and try to sell the copyright to him. Buying copyrigt with the intent to set it free would be a certain way to make sure that no company will ever release a game for free ever again.
  • edited November 2002
    Lars, you have a point, there. Nevermind my question, obviously even doing something as "nice" as putting out money to set a copyright free can turn on your back in this world... :(

    What if we started a boycott campaign? I mean, now that Rare is Microsoft, we should have some people on our side. :) If we can't get it the nice way...
  • edited November 2002
    Sure I'll help you boycott MicroSoft... but not until after I've bought Age of Mythology. That's the first (and probably last) high quality product they've ever released. :)
  • edited November 2002
    On 2002-11-05 20:36, Martijn van der Heide wrote:
    As for retro CD's, let's face it: it doesn't matter a single bit what you believe. In the end, the CDs I'm talking about were 8-bit games (Apple IIc) and they indeed sold in major volumes. So yes, they pretty much proved that the userbase is that large. Oh, and it was under 2 years ago too.
    You still have to tell me if these CD's generated a number of sales and therefore a profit equal or even superior to that of the average PC game of today... or does that not matter a single bit too? ;)
    There were other CD's last year, but I forgot who made them (some large software house). According to the publishers, these sold well too.
    The publishers hardly are a reliable source of information when questioned about the sales of their own products, aren't they? ;)
    You may have seen them in Italy as well; in The Netherlands almost every computershop carried them.
    No, never heard of them at all. Probably because almost everybody had Amigas here. If such an operation would have been carried out for the Amiga, surely it would have been a major hit here.
    On 2002-11-05 20:52, Alessandro Tommasi wrote:
    Alessandro, you are "ethically" and morally right, however what you say cannot obviously be legally enforced. No matter what the "reason" behind copyright is, the truth of the matter is the companies hold rights over copy and distribution, period. If they do not allow that (or if they prohibit, in our case), the "reasons" they do that is irrelevant. So much for argument a).
    That's it, Ale: you have hit the nail on the head. We are talking about companies - that is to say, capitalism. "Ethics" and "reason" are concepts deprived of any importance in a system that has profit as its only purpose. This is anyway a very complex question, and I do not feel it is the case to discuss it here.
  • edited November 2002
    Has anyone one this forum been unable to get hold of a copy of any of the games that have been denied? You can find them if you want.I know this isnt strictly the point, but the denied status of games just means that they arent available on legal sites like WOS, as Im sure you all know, it doesn't take much searching to find sites that do have them.
    I really dont see why Rare and Codemasters cant turn a blind eye to the distribution of their old games, even if they dont officialy sanction it.
  • edited November 2002
    On 2002-11-06 01:22, Sharopolis wrote:
    I really dont see why Rare and Codemasters cant turn a blind eye to the distribution of their old games, even if they dont officialy sanction it.

    To some extent, they already do turn a blind eye - as you pointed out, those games are out there (and as has been pointed out in this thread, it's probably not actually worth it for them to have them removed). However, when they're specifically asked 'We're distributing your games. Is this a problem?' (as Martijn has done for every company he could find any sort of contact address for) a few have decided it's then worth them asking for them to be removed.
  • edited November 2002
    Sharopolis:
    Finding a copy of every denied game is fairly straightforward, but it can be pretty hard finding them in .tzx-format, especially some of the more obscure titles.

    I believe that there is a risk that some games will not exist as perfect tapes in the future, due to the fact that the distribution of these games have been denied. Sure the games might exist in the tzx-vault, but since there is only a handful of people that have those tzx-files and can test them, there could be errors that will go unnoticed until it is too late to redump the tapes.

    I'm quite convinced that neither Sony, Capcom or Codemasters store the original tapes themselves, so their denial is really risking the very existance of some games. Still, there isn't much to be done about these things. Hopefully the companies will reconsider their decision and let them be distributed sometime in the not too distant future.

    [ This Message was edited by: Lars on 2002-11-06 12:58 ]
  • edited November 2002
    I was just wondering, since it's still possible to purchase spectrum games (I just bought Knight Lore), does that constitute distribution of a game? And is that illegal in the eyes of companies like Rare? Because, when you think about it, it's not too different from downloading it (Except of course you are getting an original package, which is probably worth more than a file on a computer.)

    Or am I just talking through my rear passage?

    Necros
  • edited November 2002
    On 2002-11-07 02:07, Necros wrote:
    I was just wondering, since it's still possible to purchase spectrum games (I just bought Knight Lore), does that constitute distribution of a game? And is that illegal in the eyes of companies like Rare? Because, when you think about it, it's not too different from downloading it (Except of course you are getting an original package, which is probably worth more than a file on a computer.)

    Or am I just talking through my rear passage?

    Necros

    If buying a 2nd hand copy is illegal, that makes places like Game, Game Station and every 2nd hand record/video shop lawbreakers! I think we're safe there!
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