No Copyright Lives Forever: How The Apathy Of IP Rights Holders About Their Copyrights Killed A Game Re-Release
from the way-to-go dept
If you were gaming on a PC just after the turn of millennium, you likely fondly remember the classic game No One Lives Forever. A genre turning first-person shooter that featured a strong, reasonably dressed female hero and a setting inspired by 1960's spy films was received incredibly well by both critics and fans. And, because retro PC gaming continues to have a strong following, any of you that know what we're talking about here are probably thinking you'd like to fire up a copy of No One Lives Forever on your updated machine and give it another go. Well, you can't. You should be able to, but you can't. And you have a complicated web of copyright and trademark rights-holders to thank for it.
Even if you're a fan of retro-gaming, you may not be familiar with the company Night Dive Studios. Night Dive is the group that buys up the rights to older games, optimizes them for new machines, and then re-releases them on Steam and other outlets like GOG.com. They've done this with big-name titles in the past and they really wanted to do the same with No One Lives Forever and its sequel. And, because this is a reputable business we're talking about, they decided to secure the rights for the game first. And that's where it all went to hell.
Night Dive's detective work began with tracking down and speaking with the game's original developer and publishers. That meant getting in touch with the three main players: Warner Bros., Activision, and 20th Century Fox.Here's where this gets really depressing. Because the game was released in an age before digital document filing was in widespread use, the rights contracts and paperwork we're talking about here are all literally paperwork. And, after communicating with Activision, Fox, and Warner Bros., the response from all three was to essentially state, "We don't really know if we have any rights here, and we aren't going to look for the paperwork to make sure, but if you make the game and it turns out we do have those rights you'll be facing legal action from us." Keep in mind, this was the response from all three publishers who would take legal action concerning rights all three couldn't be bothered to determine if they even had. You can imagine how frustrating that must be when, like Night Dive's Larry Kuperman experienced, you just want to re-release a game and nobody can tell you who owns it. Take Kuperman's interaction with Activision, for instance, to get an idea of how absurd this all is.
NOLF and its sequel were developed by Monolith, who are now owned by Warner Bros., under whom they released the acclaimed action game Shadow of Mordor just last year. NOLF was made using a framework called the LithTech engine, which is also now owned by Warner Bros. However, the first game was published by Fox Interactive, and there's a question of whether 20th Century Fox or even Activision might have partial rights to the series, due to Activision's 2008 merger with Vivendi, a separate media company that had acquired Fox Interactive in 2003.
"So we went back to Activision and, [after] numerous correspondence going back and forth, they replied that they thought they might have some rights, but that any records predated digital storage. So we're talking about a contract in a box someplace." Kuperman laughed. "The image I get is the end of Indiana Jones… somewhere in a box, maybe in the bowels of Activision, maybe it was shipped off to Iron Mountain or somewhere. And they confessed, they didn't have [their] hands on it. And they weren't sure that they even had any of those rights."In a sane world, intellectual property rights that a company can't be bothered to find out if they even have shouldn't be rights that can then be sued over. Either they're important or they aren't, and if they're important they should be maintained.
The upshot of this is that Night Dive discovered that, surprisingly, nobody owned the trademark for the game, so they filed a claim to it. Months later, Kuperman found out that Warner Bros. had filed an opposition to get an extension on the time they could use to determine if they had a trademark claim to the name. Again, they didn't know if they had the rights, but they wanted to find out just to see if they could enforce legal action with them. The trademarks and other intellectual property would be used solely for legal action, as it quickly became clear that none of the companies involved had any interest in actually helping Night Dive re-release the game, even if they could have made money off of the arrangement.
We wanted Warner involved with this," Kuperman told me, "so we said, there's two ways we could work together. First, and our preference, is that we would do a licensed deal. We would pay them some amount of money up front to show that we're serious, and then we would give them a backend share of revenues. And if that didn't work for them, if they wanted to be the publisher of record, we'll still do the development and the optimization of the game, and instead of our giving them a backend share, [they] give us a backend share. In either case, it seemed to us that they were gonna be making money that they wouldn't have been making otherwise, with a minimum amount of effort. We weren't meeting with a lot of enthusiasm. In fact, most of the phone calls were like, 'That'll probably never happen.'"Activision and Fox responded similarly, saying they weren't sure if they had any rights but not offering any kind of permission to move forward and retaining the option of legal action if Night Dive re-released the game. Keep in mind, please, that this frustrating nonsense is all the result of Night Dive attempting to do the right thing and license the game properly. And, for those efforts, they even got a legal threat from Warner Bros., because apparently nobody over at Warner bothers to talk between departments.
Then, in December of 2014, Kuperman and Kick heard from a lawyer representing Warner Bros. Kuperman explained: "Steve [got] what I like to call, the legal term for it is a 'Scary Letter.' It comes from an attorney representing Warner Bros. and basically says they're aware of our filing for trademark, that they had contested that, and that if we went forward, specifically with a new version of No One Lives Forever, without doing a new deal with them, we would be infringing their rights and the hammer would fall."And that was after Night Dive had been desperately trying to do such a deal and meeting with nothing but questions over whether any of these rights Warner's lawyer mentioned even existed. Warner further followed up saying they were no longer interested either in working with Night Dive to publish the game or publish it themselves, meaning Warner Bros. has made the conscious decision to let No One Lives Forever die off for good. Night Dive says it has given up the attempt and gamers who wanted a legitimate way to get a beloved old game are forced down the roads publishers claim are evil.
The people at Night Dive have ceased their attempts to re-release No One Lives Forever. They now control the trademark, but without a game to use it on, they're going to let it lapse. No One Lives Forever will remain unavailable on digital stores, and modern gamers who want to play the games will have to either track down scarce physical copies or resort to illegally torrenting them.Intellectual property: important enough to publishers that they'll use it to kill off the attempt to release an old game, but not important enough to know if they actually have the rights to begin with.
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Filed Under: copyright, licenses, no one lives forever, old games, re-releases, retro gaming, video games
Companies: 20th century fox, activision, night dive studios, warner bros.
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Two problems with one legal threat
All they had to do was stonewall and send out legal threats, and a game that people almost certainly would have bought, potentially taking away money from their current offerings, was killed off. Barely any work at all on their part, and they remove any potential competition they might have faced from the game from the equation; from their point of view that must have seemed like an excellent deal, and it's no wonder they acted in this manner.
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Re: Two problems with one legal threat
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Re: Re: Two problems with one legal threat
Like the article's title says, it's just apathy, and it shouldn't be tolerated when people try to go through the proper channels and negotiate a license.
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Legal development Hell is the reason we're not seeing new NOLF titles.
This is only the latest failed attempt to resurrect The Operative and the NOLF Franchise.
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Re: Two problems with one legal threat
And there, in a nutshell, you see what intellectual property has become.
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Re: Re: Two problems with one legal threat
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Re: Re: Two problems with one legal threat
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It makes perfect sense.
Any time people spend on playing retro games is not spent on them playing new games. Why should Warner et al be interested in percentages to what amounts to peanuts when people could buy new games at the same time?
Even worse, those old games worked on ridiculously low-powered hardware as compared to today's first-person shooters. They were immersive and addictive because the gameplay was right. You could play them for weeks without getting bored.
So you really don't want to earn peanuts for weaning people weeks off from the expensive hard- and software that defines today's gaming experience and instead immerse them in some genre that should be anything but competitive given today's metrics.
I'm waiting for a delivery of a USB-to-serial adapter right now so that my current laptop can be hooked up (via an adapter I wired decades ago) as "disk drive" to an Atari 800XL: since recently, there is a room with TV set in it. While the latter has not seen any action so far, it's perfect for getting to play Ballblazer and Flip&Flop and all those other classics. Let's hope that the EPROMS of the main rig still hold up. And that these modern TV sets have a useful analog TV input.
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Re: It makes perfect sense.
Well, fuck you. This is precisely the attitude that makes the current copyright system so broken. If they don't want to MAKE MONEY FOR NO EFFORT then Night Dive should be given the rights automatically OR Warner should lose it as they are clearly blocking access to something. Not available to the public? Lose your copyrights. Simple as that.
Even worse, those old games worked on ridiculously low-powered hardware as compared to today's first-person shooters. They were immersive and addictive because the gameplay was right. You could play them for weeks without getting bored.
Well, fuck you again. I've played Chrno Trigger a few months ago and guess what? THE FUCKING GRAPHICS DON'T MATTER. Same with the old Doom (ah the mods, the effin awesome mods...).
So you really don't want to earn peanuts for weaning people weeks off from the expensive hard- and software that defines today's gaming experience and instead immerse them in some genre that should be anything but competitive given today's metrics.
Fuck you a third time. They were not spending any effort or money for letting Night Dive release the goddamn thing. And, as you can't see from your modern gaming bubble, there is demand for old games.
These "fuck you" are for the copyright morons as a whole.
As for the last paragraph it got me wondering if I didn't get your point. You keep an entire post telling us that Warner shouldn't let Night Dive release the game for... Reasons and then you talk about putting enormous effort to make some old setup work like you are fond to play some oldies... Wtf? If I failed at understanding your point please forgive me for the "fuck you" up there but, really, if you are not supporting Warner et al at least make it clearer.
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Re: Re: It makes perfect sense.
I really don't think you did. I read it as he was explaining Warner's line of thinking, not that he was agreeing with it.
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Re: Re: Re: It makes perfect sense.
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Re: Re: It makes perfect sense.
Not him, but I can assure you that you completely missed his point.
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Re: Re: It makes perfect sense.
Which leads me to my thought when I read this Kotaku piece a couple of weeks ago which you've hit upon: When someone is willing to take the risk and spend the money to prepare an abandoned title of yours for sale and hand you a cut of the proceeds and all you need to do is sign off on the project, why the f*cking f*ck wouldn't you do this, f*ckers?!? Warner isn't doing anything with the IP, but just as with the music industry who killed themselves with this mentality, they seem to rather have 100% of nothing than 30% of something. It's as if someone came to you and said, "Hey, I'm willing to rummage through your garage and attic, find the stuff you'd forgotten you even had, clean it up and put it on eBay and we'll split the money," and you rejecting the deal because reasons.
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Re: Re: It makes perfect sense.
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Re: Re: It makes perfect sense.
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Re: It makes perfect sense.
They're leaving money on the table, though. There are a lot of people (like myself) who have little or no interest in almost all new games for various reasons, but would be happy to pay cash money to get classic games that work well on newer systems. People like us won't be spending much money on new games whether or not retro games are available.
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Re: Re: It makes perfect sense.
Yeah, I'm one of those people too. It's not about the high-end eye-candy graphics for me. It's more about the actual gameplay and interaction and how long it holds my interest before I get bored.
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Re: Re: Re: It makes perfect sense.
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Re: Re: Re: It makes perfect sense.
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Re: Re: It makes perfect sense.
They're leaving money on the table, though. There are a lot of people (like myself) who have little or no interest in almost all new games for various reasons, but would be happy to pay cash money to get classic games that work well on newer systems.
It's kind of a catch-22. If it's not a big enough market to bother serving, why is it worth spending money on lawyers over? If it is a substantial market, why is it not worth putting out some minimal effort to capture it? It's almost like big media executives are stupid.
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Re: Re: Re: It makes perfect sense.
Yet another reason why, if the IP industry gets their way and IP is considered property, it should have property taxes. Once the company no longer wishes to pay property taxes, it should be considered abandoned, and should immediately fall into the public domain, available to anyone who wishes to use it for whatever reason they want.
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Property tax
A proof of ownership, tax, and a DRM free version in Libraries (to be freed when the monopoly ends), should be required for establishing a monopoly. The Library version should at least be equal in quality to the distributed verson.
The tax should be payed in each jurisdiction.
The citizens should be able to buy a work free in that jurisdiction. Perhaps for an amount related to the tax?
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Re: Re: It makes perfect sense.
The benefits of doing so:
- Reduces piracy or at least increases profit because people who wanted to play it can now do so with an official release rather than having to resort to a copy because currently that is all that is available.
- Could be spun into goodwill for the company, as in, 'hey, we know that this is a small thing but we want to provide our fans with some classics.'
- Could be used as a way to gauge interest in furthering the series, which would mean that the excuse of this somehow eating into new games would go away.
- Could produce a mutually beneficial relationship between Night Dive and the company so that ND could create more free money for the company with other classic updates.
Cost (from the company's perspective):
- Some reduction of 100% control of every property and franchise that they may or may not currently hold.
Seriously. Rather than share, make free money, and make some people happy, they'd rather lock up nostalgia because of greed. Greed that is so misplaced that it keeps them from free money. It is completely absurd.
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Re: Re: Re: It makes perfect sense.
Well, there's your problem right there. Anything less than a complete stranglehold on whatever IP they can possibly grab is something they'll never allow.
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Best Practices
This mirrors the problem in Hollywood where a whole lot of risk-aversion comes with the $300 million budget required to make a summer blockbuster, thus all the orange-and-cyan movies that all have the identical plot beats (down to the minute). A high-budget game isn't dictated by the artists and designers, but the bean-counters at the top who have very little interest in gaming (and buy into the whole pro-DRM argument).
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Hate to be a downer but...
Gotta pick your fights. Unless you're trying to establish precedent (IE willing and financially able to carry the fight through an appeal, with the risk of losing in the end), AND you have a legal theory that has a chance of carrying the day, you might well be better off not starting.
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Re:
That is actually a viable way to gain some extra time when facing foreclosure. Basically, you ask the mortgage company to prove that they own your mortgage. With all the mortgage "bundling" and reselling that goes on (especially before the housing bubble burst) your note probably changed hands multiple times and the actual paperwork will have to be tracked down.
http://www.consumerwarningnetwork.com/2008/06/19/produce-the-note-how-to/
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Re:
Establishing ownership of the disputed rights normally happens in the preliminary hearings. These cases would stop before the complicated `how much' part (which helps with the cost).
There is at least one US property-owner who actually does this. He refuses to pay without seeing the mortgage contract he signed. (He should put the payments in the bank for when someone does prove to own his mortgage but in the meantime he gets a nice interest).
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So, someone(s) have the rights to a game that is currently earning them 0.
Someone is willing to give that someone(s) MONEY for the ability to create a working game that there seems to be interest in.
Da'faq is wrong here?
This entire episode highlights that "private" records of IP related transactions are unacceptable. If you aren't willing to file a document showing ownership with the central registry, you shouldn't have any rights to it.
This is "just" one game, but how many other things are out there that no one can be bothered to unbox the records to look for? How many other people met the same idiotic we dunno if its ours, but we are prepared to crush you legally if we happen to find out we own it at a later date (and you make enough money we fell should be ours).
"Forcing" poor rightsholders to actually file documentation so that these records are searchable doesn't seem like much of a burden for having a monopoly.
One could even throw in the ever popular, if you don't let us know you are alive every few years you surrender your rights to it.
You aren't using the rights, refuse to see if you actually have them, refuse money by licensing them out...
Other than keeping IP locked up for the sake of claiming to own a buncha IP, what the hell is the point?
A system that rewards them for locking things away.
How does this benefit society again?
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Re:
Make a five year window where ownership of IP can be filed if it isn't already, as well as disputes of anything filed during that time. Anything not filed converts to public domain.
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Re: Re:
And let's make it so people have to register for copyright instead of receiving it automatically.
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Can a copyright holder sue after the fact if it admitted it doesn't know if it's his? I know this isn't like trademark where they need to be aggressive about it, but I'd think the onus on knowing who holds a copyright starts with the holder first, licensees second.
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Re:
Can a copyright holder sue after the fact if it admitted it doesn't know if it's his?
Yes*, yes**, and yes.
* they would have to demonstrate in court, if it got that far, that they do in fact hold the copyright
** they could say that, but it probably wouldn't do them much good. In fact it might even expose them to willful infringement charges since they knew there could be a copyright issue. I don't know about that though, just speculating.
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(ie: if you falsely accuse someone of infringement and it turns out to be false the punishment is relatively small compared to the cost to your opponent if he infringes. I agree, as you say, the reverse should be true but you must realize our current laws weren't democratically passed they were passed by various corporate entities).
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Re:
The guys at Warner did not! They actually seem to know, that they at least have part ownership of the property, but are not interested in doing anything with it.
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if you don,t register the ip, character names etc,
then after 7 years it automatically falls into the public domain ,
Like you lose the right to a website name ,or domain adress if you don,t renew the adress every few years.
That,s an great ip because its a a great shooter ,
with a good story ,
like a female version of james bond ,
it could sell well if it was done right ,
with a good script and action .
its not just another fps military shooter ,
that no one cares about .
its a pc gaming classic .
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stupid dickheads
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no one lives forever,
another company might own the ip,
Any copywright can be enforced if you have a lawyer and go to court and show the documents proving you own the trademark and ip on this game .
Any company could make a fps shooter
starring a female spy
as long as they dont use kate archer or
the title no one lives forever.
This game was a parody of james bond with a female lead character .
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Hmmm...
First thing: this article works so hard to put a Techdirt spin on things (no bad thing in itself), it no longer resembles fact particularly well. Rights confusion is part of the story, but it's not part of the ending. :/
Second thing: If you're a content creator of any description and you care about anything you create, don't do business with Warner unless you're desperate, because those guys are assholes and they will throw your shit in the corporate dumpster as soon as they get bored with it.
Did you like Batman: Arkham Asylum and its sequels? Enjoy them while you can still play them, because once they stop being profitable, fuck you all! They'll never be released again. Same goes for anything else they have a legal interest in.
Final thing: dear Warner Bros. Interactive Entertainment, Inc, you suck and you may eat a dick. In fact, you may eat an entire flotilla of dicks, at your leisure. That is all. :/
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Re: Hmmm...
What did it get wrong?
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Re: Re: Hmmm...
There's no question in my mind that the copyright issues depicted here are a problem for society and there's no question that those issues deserve to be highlighted, but that's not what killed No-One Lives Forever.
Based on the Kotaku article, Warners mindless, point-blank refusal to do business is the actual reason. Any suggestion to the contrary is at best misleading and at worst a deliberate falsehood. :/
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Re: Re: Re: Hmmm...
And why were they able to refuse to do business in this way?
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Re: Re: Re: Hmmm...
Apathy.
Serious, relentless apathy.
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Re: Re: Re: Hmmm...
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Lost Sale
Also, I'm not interested in most of your new releases because they lean heavily on multi-player instead of gameplay. I realize this shows my age but spending an evening playing a game full of kids using aimbots while proudly displaying their ability to curse is just not my idea of fun. Now get off my damn lawn, I have clouds to yell at!
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Re: Lost Sale
What Win98 VM do you use? None of the ones I looked at seem to support any kind of hardware acceleration for the graphics. Or if they do, that information is buried deep in the docs somewhere. It seems that most VMs are optimized to only run XP and newer with all the bells and whistles and Win9x gets the short end of the stick.
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Truly, one more piece of evidence for the perverse incentives of lititgation.
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Wow
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then they could sue for all the profits ,or for
infringement of their I.P.
they can,t sue a company for thinking about making a game based on their ip.
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Long-game
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I'd love to see that.
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Re: I'd love to see that.
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Re: Re: I'd love to see that.
Somehow I get the feeling you're speaking in a hypothetical, pretending that such a contact would be easy to locate, but don't really know.
But also, considering that those who might own the IP won't deal legitimately but are hot to litigate if someone even tries, maybe this is a situation where bootleg developers should have their chance.
Acting like a jackass within the law is still acting like a jackass.
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Re: I'd love to see that.
When I installed NOLF on my old system, I had to downgrade my Nvidia drivers by several versions to get the graphics to display correctly. All of the NPCs were white and all of the textures were used in the wrong locations (road signs for floors, sky for walls, etc). I had the same problem with Aliens vs. Predator II.
For NOFL2, I had to use an even older driver. The graphics glitches weren't as game-stopping as the first one, but parts of the ground would change based on your viewing angle and/or whether you were using the flashlight.
In fact, I've had graphics problems with practically every Lithtech game I've played.
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NOOOOOOO!
And thanks for the warning.
Stupid lack of downward compatibility.
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Y'know
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Re: Y'know
I hope my history of posting here affirms that I'm not rapey or homophobic, but from the URL title I get how it comes off that way. This was my dumb mistake and it sure as hell won't happen again.
Thank you for pointing it out the way you did.
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No One Live Forever
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Start an alternative FLOSS version?
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Re: Start an alternative FLOSS version?
What should it be called?
Everyone Dies Eventually
Inevitable Expiration
Living Forever Is Not a Thing
Other ideas?
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Re: Re: Start an alternative FLOSS version?
The UNITY Files
Do No HARM
The Archer Files
Shall I go on?
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Someone should do an offshoot of that hoarding show. make it about money hoarders
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Actually they could have it if they wanted to. "We don't want it, and we're going to make sure no one else can have it either." That seems even worse.
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Oh, god, yes please!
This is possibly the most broken thing about copyright. It should be the case that you could challenge a copyright and if the challengee can't respond with proof of copyright within a fixed period, they are legally assumed NOT to own the copyright.
It wouldn't make copyright terms any less stupid, but it would make copyright as a whole a lot less the broken shambles it is now.
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So sue them
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Re: So sue them
Unfortunately at least one of them would probably turn out to have at least some of the rights and once they were sued over them, they're probably not going to want to cut a deal with the company who sued them, so the outcome is the same.
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Night Dive goes ahead and fixes both games and then instead of releasing the full games, they sell a patch/installer, which contains absolutely no copyrighted code. Explain that this patch/installer will work any copy of the game, you just have to find one [wink, wink].
People get the games patched for modern systems, Night Dive gets to keep 100% of the profits from selling the patch and there's not a damn thing that any of the companies can do about it, since selling a patch/installer for a copyrighted piece of software isn't illegal.
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That would not prevent one of these companies from suing them and costing them more money than they made from the patch, even if Night Dive eventually won the suit. It's just not worth the risk unless you can get some kind of agreement ahead of time. This is one way the intersection of the US civil court and copyright systems leads to messed up results.
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