[RajT88]

Oddly enough, the light that Humble Bundles have shone into gaming revenue cycles has made me question our copyright system as a whole.

Stay with me.

In Europe during the time of Mozart, composers were incentivized to be prolific by only getting royalties off the first public performance of their works. Now that is not fair today because of course we can losslessy reproduce such things infinitely.

However, Humble Bundles (and really, steam sales and other similar discounts and give-aways) work because the vast majority of the money a game is ever likely to make is early in the revenue cycle. Not 20 or 10 or even 5 years later.

We don't know the revenue Nintendo derives from virtual console sales, but you can be assured that virtually none of it is making it to the creators which is who copyright is designed to protect.

[ajsnigrutin]

I'd prefer a system, where the author has to actually and actively be trying to make money in a specific market, before the copyright can be applied in that specific case (as with trademark law, where the owner has to actively protect the trademark).

Some nintendo games are currently not available anywhere (from nintendo or from original publisher), but if you copy/download that rom, you can get fined due to fictional losses for the copyright holder. What losses? If you're not selling the game anymore, how can you have losses from it? If you're not selling that movie in my country, how can you show a loss from me downloading it?

[Semaphore1]

I always think about this with the Black and White series. You can't download it anywhere. EA has it listed on their website but its basically just marketing material which is bit of a tease.

The entry on the GOG.com wishlist has 36K+ upvotes with a new comment posted every week or so. Seems like low hanging fruit for someone at EA to make a quick buck.

https://www.gog.com/wishlist/games/black_white_2

[ezoe]

You can blame the copyright, trademark and possibly patent if it's not that old for that.

The problem is, a game is not owned by single entity. There were multiple persons and organizations own the game.

Some persons are now deceased, some organizations are now bankrupted.

It's almost impossible to find all entities who own the rights, negotiate the share. It costs more than the potential profit of the old games.

What we need is a copyright exemption law(or recognized as a fair use if you're living in US common law system) which allows unlimited use of copyrighted works(including commercial use) if the copy of the work cannot be obtained from the author.

Some may argues that they want the right to not distributed, but the very reason copyright exist is to give temporally exclusive rights the the author for... you know what? distribution. If the author don't want to distribute their works, it's shall not be copyright protected in the first place.

[naet]

Nintendo makes a lot of money rereleasing games. You might not be able to buy an n64 or a copy of mario 64 new anymore, because they aren't manufactured anymore. But people will pay for a rerelease of mario 64 on the wii or switch, possibly highly (a bundle of 3 rereleased "unavailable"mario games was going for $50-$60 new on switch recently).

Also the games aren't 100% unavailable, they're perfectly available on their original platforms on the secondary market if you want one badly.

[beachy]

Whatever the merits of your sugggestion, verifying that a company was "actually and actively be trying to make money" would be wide open to abuse and practically speaking, impossible.

[ajsnigrutin]

This could be easily solved, if the burden of proof was on the company itself... when they report/sue you for copyright infringement, they'd just have to prove, that it's reasonably simple for the person to obtain the material legally (so, is there a (eg nintendo) distributer in the country of the accused, is there a store that sells those games there, is it possible to buy it online, etc.). If there are no reasonable legal ways to obtain the material, then you cannot claim lost profit and the "pirate" cannot get fined/sued for infringement.

[int_19h]

Simpler still, collect property taxes on copyright. Companies aren't going to pay money just to sit on something that doesn't earn more money.

[dotnet00]

That simply ruins the copyright system for everyone that isn't making money. Which is pretty bad given that copyright is also what stops people from say, simply stealing someone's art drawn and shared as a hobby or even drawn and shared as part of a portfolio (and thus indirectly being a potential source of profit for them).

[ncallaway]

Seems unlikely that it’s a particularly hard problem to solve, given that trademark law works in a similar way, where if you stop actively using the mark in the market, you can lose it.

[hobs]

Why? Make copyright something you register and pay for and companies making no money from them would simply stop paying.

[teaearlgraycold]

This but apply to all property. Unused lots of land will be a liability. Empty houses should be onerously expensive.

[ajsnigrutin]

But if someone takes your land, you lose it. If someone looks at a bootleg photo of your land you still have your land, if you ever choose to monetize it again.

[tmtvl]

What is the video game equivalent of a bootleg photo of land? A bootleg video trailer?

[yetanother4968]

They’re called property taxes.

[ekianjo]

empty houses in the middle of nowhere dont bother anyone.

[LukaD]

Downloading roms is certainly not illegal, sharing them is. From my experience most older Nintendo games are not available for purchase. I would gladly pay to play classic Pokémon for example games on the switch (or on Steam).

[naet]

And nintendo will later rerelease those classic pokémon games in some form and rake in money off people like you (and me). Waiting is part of their market strategy. The NES and SNES classic editions sold out quickly iirc; when the time is right, a gameboy classic might do the same.

[YurgenJurgensen]

This seems like a solution, but who judges what "availability" is? If Nintendo say they'll reproduce any NES cart you want anywhere in the world for the low low cost of a hundred thousand dollars per unit, and all requests must be made in writing, please allow 6-8 weeks for delivery, is that "available"?

[thaumasiotes]

> but if you copy/download that rom, you can get fined due to fictional losses for the copyright holder. What losses? If you're not selling the game anymore, how can you have losses from it?

That is because there are statutory damages to copyright violations. By definition, any violation causes a fixed amount of damage.

[EMIRELADERO]

> We don't know the revenue Nintendo derives from virtual console sales, but you can be assured that virtually none of it is making it to the creators which is who copyright is designed to protect.

I too have many gripples with copyright but this is simply wrong. Copyright is designed to protect the rightsholder. Whether it is a person or a company is irrelevant. This isn't a conspiracy or cynical-type explanation, this is by design

[jrm4]

Nah, let's go further.

Copyright is designed "to promote the progress of Science and Useful Arts."

That should be the first question.

[matheusmoreira]

Let's go even further.

Copyright was meant to be "time limited".

Why is it that Nintendo still has the rights to works they released over 20 years ago even though they've already turned a profit several times over? Why do they get to sell them to people over and over again?

[vikingerik]

Because people choose to keep buying them. The seller doesn't decide how many times it gets purchased, the buyers do.

[matheusmoreira]

They're supposed to be public domain. Websites hosting copies of these 40 year old games is supposed to be completely legal. Nintendo should not be able to DMCA anything out of existence.

[ekianjo]

The buyers cant choose to buy them just anywhere.

[CobrastanJorji]

That sounds right, and the Constitution does seem to say that, but the Sonny Bono Copyright Act, which extended the copyright protections for old, already-existing works, was found to be constitutional, and so I must conclude that you are somehow mistaken.

[jrm4]

"Mistaken" is a weird word here, probably because we do this thing where we think of law as being etched in stone. It's not. It's 100% fluid all the time, but it's hard to see because it's slow.

Disney and Sonny Bono hired some lawyers to ramrod some dumb crap through. It happens. Let's see if we can fix it.

[CobrastanJorji]

We did see. It was the famed Eldred v. Ashcroft case. Lead counsel before the Supreme Court was Lawrence Lessig, darling of the Open Source movement. In a 7-2 ruling, the Supreme Court ruled that, so long as the time limit for copyright was in some way limited, the length of time, even if lengthened after the fact, was permissible. Justice Stephens wrote an excellent dissent, but being only one of two, was official Wrong.

[EMIRELADERO]

Ironically, that case might, at the same time, be the one who brings down the DMCA's anti-circumvention provisions.

The standard set by SCOTUS was, apart from what you've already said, that a time extension was permissible as long as the "traditional contours of copyright" were not altered. One of them was explicitly called out, fair use.

The Court also explicitly mentioned that for a regulation to survive constitutional scrutiny in regards to copyright, it must not supersede, nullify, or even "disturb" the exercise of fair use.

This set the precedent that fair use is constitutionally required, not only a generous grant by Congress.

[ece]

I'm not an author or artist, but you only need to search for tweets about copyright on Twitter to see it benefits the rightsholders a bit too much. If the term was shorter, maybe it would be different. Of course the reason the term is longer is because of rightsholders.

[Aerroon]

I made a YouTube video a long time ago in 2013. It's wild to think about the fact that somebody could be in trouble with copyright infringement over that video in the year 2141.

I expect to live at least another 50 years. In a large amount of countries copyright is granted for the lifetime of the author and an additional 70 years.

It seems a little excessive.

[jimbob45]

We don't know the revenue Nintendo derives from virtual console sales, but you can be assured that virtually none of it is making it to the creators which is who copyright is designed to protect.

An advocate for the devil would claim that those creators were compensated upfront rather than over the lifetime of the product. Therefore, the company is rightfully collecting the revenue that the creator left to them that they already paid for.

[eyelidlessness]

You’re both essentially saying the same thing: this copyright dynamic is a vehicle for investment capitalism. And I’m not pointing this out to be glib, just recognizing that this particular line of advocacy is somewhere along the spectrum between “the thing you observe is working as designed” and “that’s good, actually”.

Which is a view you’re welcome to hold, but I’d certainly prefer a system designed for people who engage in creative work to have a greater share of what they create, and for the economics of creative work to not be so deeply entrenched in wealth consolidation for its own sake.

Disclaimer: the sum total I’ve been paid for purely creative work is approximately $11 from my share of ticket sales and a couple of drinks on the house. Which is $11 dollars more than I ever sought out, because I realized making a living as an artist had dim prospects before I even got a chance to try.

[pbhjpbhj]

Wouldn't such an argument strongly favour the company (Nintendo's) copyright expiring early--as they were compensated up front by the first raft of sales--and so suggest we, the public, should limit their copyright as that won't inhibit new development and will enrich the public domain.

[zerocrates]

In terms of moneymaking, copyright's long term is more relevant for video games in that it includes the right to make derivative works (i.e.: sequels). Certainly there are franchises that have lived longer than 20 years.

Ports, remasters, official emulation, and subscriptions have given a longer "tail" for at least a handful of classics but even without that it's "the IP" that would be most jealously guarded.

[grayfaced]

I think it'd be a stretch to say sequels are covered by derivative works. Trademark would be the primary protection and would function for sequels with no copyright protection at all.

[zerocrates]

Sequels that share or build on characters, plot, and so on with their predecessors are definitely derivative works. (Let's ignore the literal sharing of assets and bits of code that's also common for sequels since that's obviously more straightforward, and not strictly necessary.)

Trademark definitely comes into play, and is probably the more important form of IP here in practice (and for some series may be the only really effective protection). But you still couldn't go out and make a game with Master Chief or Nathan Drake even if you called it something other than Halo or Uncharted.

Trademarks are also interesting and somewhat unique for video games: the typical rule is that the title of a book or movie, etc. is not eligible for a trademark. You need a name that's being used for a series to get a trademark. But video games are excluded from this rule and can (and almost always do) get trademarks for their titles even when they're standalones.

[dleslie]

Very few humble bundle products are financially successful. It's easy to think otherwise because of the standout few.

[thatguy0900]

Does humble bundle have "products"? I thought it was just a dumping ground for when sales slowed elsewhere, not the main place to try and sell something. So financially successful would just be any money

[dleslie]

There's a scant few products that launched first on HB, but yes, it does seem like a hail Mary dumping ground for previously-failed products, and a cheap marketing platform to drive interest in existing IP.

[zamalek]

> We don't know the revenue Nintendo derives from virtual console sales, but you can be assured that virtually none of it is making it to the creators which is who copyright is designed to protect.

I can almost guarantee that this isn't Nintendo's primary motivation for the behavior. There is much more money to be made with xplat games, and almost all (if not strictly all) consoles are loss-leaders.

Nintendo is ruled by dogma, nothing more, nothing less. Nintendo is much like Larry Ellison[1], don't try to make sense of them. If it wasn't for a core set of IP that their designers/developers routinely ace, they would be dead in the water.

[1]: https://news.ycombinator.com/item?id=5170246

[syntheweave]

I believe the specific reason why copyright is in such an awful state for rewarding creation is tied to the ease of copying.

When copying was extremely hard(back in antiquity) everyone who was an artisan was producing 1 art per 1 unit. So you didn't even need a state-level enforcement of copyright; either it was good work or it wasn't.

During the run-up to industrialization more possibilities to make units without making art came about. But the means of production were still capital and labor-intensive - there were only so many printing presses in town. Therefore, copyright built a social contract: the state enforces what the presses can do to copy your work. As soon as you exited the borders of that state, piracy was prolific.

This regime continued all the way through the 20th century and only started cracking when homemade copies became good enough, which, within media industries now fully enmeshed with state interests, the obvious response was "don't tape at home, don't copy that floppy, you wouldn't download a car."

Nowadays there is no scarcity of copies, only scarcity of attention. "Likes" are effectively a currency, but likes aren't state money, they're an awkward mediation of platform algorithms. Instead we have a two-class media system where, in each form of media, there's "the industry", which deploys all the mechanisms of the state(corporate investment, IP laws, marketing campaigns) to encourage consumers to give up their state bucks, and then the "gig workers", who have assembled a patchwork of social media mechanisms to get eyeballs to their work and pick up commissions, crowdfunding, and other forms of fundraising that allow indirect exits to state bucks. Because you mostly can't get paid for what you already did without utilizing the full might of the state, everyone is inclined to push monetization further towards promises of future work: the stretch goal, DLC, etc. Buying the rumor and selling the news.

In this framework, we have to discuss NFTs. They aren't "ready for use" in the current state of things, but they present an alternative mode of exit: discard the unit production mindset and define the art as a financial asset. It already has some analogue in the gallery system, but digitization makes it a cheap, low-friction process. With "all my apes are gone" comes some demonstration of effectiveness: You can, in fact, just put a price to art, let traders make risky gambles with it, and rely on a non-state, independently operated system to give you a cut of the resulting carnage.

What we don't have yet is strong coordination between likes and trading. What made NFTs a bubble was the degree of misrepresentation on display; far too many works were being inflated through traditional boiler-room schemes, and many more were stolen works scraped from unwilling or unaware sources. Everyone pounced on proof-of-concept tech with an angle for a rug pull. But this is the kind of thing that tech has seen many waves of: snake oil salesmen turning some genuine breakthrough into fools' gold, followed by a gradual address of each specific problem that made it foolish.

So I think of the possibilities for art as a thing society can fund and reward going forward as a thing that will look both more social-media-like and asset-like; maybe not in the specific mode NFTs took, or in the specific form that engagement on TikTok takes, but drawing on some aspects of both and building a greater-than-the-sum result.