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

Wed, Mar 25th 2015 4:19am — Timothy Geigner

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.

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.

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.

"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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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.

79 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 25 Mar 2015 @ 2:34am

Two problems with one legal threat
It's not that they didn't care about the game, they likely just saw this as an easy way to kill off any potential competition it might have posed for their current titles, with a minimum amount of effort on their part.

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.
[ link to this | view in thread ]
David, 25 Mar 2015 @ 4:41am

It makes perfect sense.
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.

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.
[ link to this | view in thread ]
Greevar (profile), 25 Mar 2015 @ 4:52am

Re: Two problems with one legal threat
I was about to make a very similar comment. It is exactly what they are doing. They also don't want to "dilute" the market with more offerings than their customers are willing to spend money on.
[ link to this | view in thread ]
Yes, I know I'm commenting anonymously, 25 Mar 2015 @ 4:52am

I propose the same solution as for those `disappeared' mortgage contracts: contest the ownership in court and if it isn't quickly proved, the judge can declare a forfeit on the ownership (basically public domain-ing the content).
[ link to this | view in thread ]
That Anonymous Coward (profile), 25 Mar 2015 @ 4:53am

IP is so valuable that those who hold it often can not be bothered to verify they have it, but will still make threats... just in case.

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?
[ link to this | view in thread ]
Ninja (profile), 25 Mar 2015 @ 4:57am

Re: 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?

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.
[ link to this | view in thread ]
Ninja (profile), 25 Mar 2015 @ 4:58am

Re:
That. Have my insightful vote.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 5:03am

If the supposed copyright holders don't know if they do, in fact, hold a copyright, is it enforceable? Could the development just go ahead and deal with any C&D and the like by just saying "We asked and they didn't say no. They said 'Huh... we don't know!'."?
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.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 5:13am

Re: Re: Two problems with one legal threat
That could be, but this would be a niche release at best! I don't believe anyone is jumping at the chance of doing a NEW NOLF game, so releasing the old ones for current HW and OS's isn't really going to eat anyone's lunch.
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.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 5:22am

There should be a law on game trademarks, or characters , game ip,
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 .
[ link to this | view in thread ]
Sheriff Fatman, 25 Mar 2015 @ 5:32am

Re: Re: It makes perfect sense.
As for the last paragraph it got me wondering if I didn't get your point.

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.
[ link to this | view in thread ]
any moose cow word, 25 Mar 2015 @ 5:39am

Re:
Unfortunately, it's not so simple with copyright. Those kinds of rulings always seem like water off a duck's back when it comes to IP, with strings of appeals, motions and filings that can drag on for a decade. It doesn't even matter if they win or not, the entire point of the exercise is to burden, and hopefully bankrupt, a lesser opponent.
[ link to this | view in thread ]
trickydick, 25 Mar 2015 @ 5:42am

stupid dickheads
We are now in the age of stupid dickheads. We have gone through the age of thanks for the cushy job boss, now we are actively in the age of thanks for promoting me above what i am capable of doing, now i can do whatever the fuck i please whenever the fuck i please and fuck you. These fucking morons in charge are now the fucking lowest of the low shit hole from the bowels of the cunts. fuck all these fucking cunts.
[ link to this | view in thread ]
any moose cow word, 25 Mar 2015 @ 5:49am

Re:
That's the kind of BS that was created with the 1976 copyright act, easily one of the worst pieces of legislation of the 20th century. It's right up there with "method patents". I don't recall which flaming dogpile that was heaped on.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 6:03am

ONE company could own the name ,
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 .
[ link to this | view in thread ]
DocGerbil100 (profile), 25 Mar 2015 @ 6:10am

Hmmm...
From the original Kotaku article, regarding Warner:
Their hope was short-lived. In early February, Kuperman and Kick got a definitive answer from Warner: No.

"They come back with a response that said they're not looking to either publish the game themselves at this time, or to partner with us," Kuperman said. "Those options, they're not going to accept either one of them. So basically, we're back to square one."
From the sound of things, Night Dive, Monolith and Fox are all happy to move forward, but Warner says no.

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. :/
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 6:34am

Re: Re: It makes perfect sense.
As for the last paragraph it got me wondering if I didn't get your point.

Not him, but I can assure you that you completely missed his point.
[ link to this | view in thread ]
Kev (profile), 25 Mar 2015 @ 6:39am

Lost Sale
I've still got the install CD and would have jumped at an updated digital copy. Yes Rights Holder, I would've paid you a second time for something I already own because the Win98 VM I currently use for older games gets the job done but GOG is steadily eliminating the need for it. Instead, you can't get out of your own way to make that possible and my money stays in my pocket.
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!
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 7:03am

All I can say is that it is a strange level of commitment to not know and care if you have the paperwork, but also to be willing to dig once you have a chance to sue, because then an ROI is possible.

Truly, one more piece of evidence for the perverse incentives of lititgation.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 7:07am

Wow
Wow, that's like.....wow.
[ link to this | view in thread ]
Spoiled children (profile), 25 Mar 2015 @ 7:15am

No I don’t want to play basketball with, but don’t you dare use that basketball in the playard no one is using because it may or may not be mine. Why am I doing this? Because I can.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 7:17am

Because if the game is published or put on gog ,steam for download ,sale or purchase ,
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.
[ link to this | view in thread ]
TMC, 25 Mar 2015 @ 7:19am

Long-game
Hopefully optimizations for NOLF and NOLF2 will anonymously appear on the internet for free very soon. That's the best course of action here: publicly destroy the value of a re-release to spite (and disincentivize) apathy.
[ link to this | view in thread ]
Dirk Belligerent (profile), 25 Mar 2015 @ 7:20am

Re:
Truly, one more piece of evidence for the perverse incentives of lititgation.
Giant corporations have giant rooms filled with lawyers on retainer, so to have the monkeys filing threats and suits is just getting what you've paid for.
[ link to this | view in thread ]
Jussayin, 25 Mar 2015 @ 7:20am

Y'know
We can see the URLs spelled out and, even though it's no longer a weirdly homophobic/rapey reference (no-copyright-lives-forever-how-apathy-ip-rights-holders-about-their-copyrights-fucked-game-re-relea se-butthole.shtml), it's probably best to re-name these articles BEFORE publishing them. That is all.
[ link to this | view in thread ]
Angry Sprite, 25 Mar 2015 @ 7:23am

No One Live Forever
I *still* have those original CDs and the original box packaging. I wonder how much I could get on eBay for them?
[ link to this | view in thread ]
Dirk Belligerent (profile), 25 Mar 2015 @ 7:37am

Re: Re: It makes perfect sense.
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.
I've made this similar argument in connection to out-of-print music albums; if the label is refusing to make it available for sale, the master revert to the artist to sell as they see fit. There was a time when the first two albums from The Bears (Adrian Belew's side project) were unavailable because the label they were made for was defunct and for some reason that meant the records got sucked into the bankruptcy black hole with it. Some early Joe Jackson records were in the same void - the label simply let them go OOP and you couldn't legally get them. The advent of digital streaming/iToonz/whatever has allowed for many of these titles become available again because it doesn't require much expenditure to prep them for sale; it's not like they have to take the risk of pressing pieces of plastic.

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.
[ link to this | view in thread ]
John Fenderson (profile), 25 Mar 2015 @ 7:45am

Re: It makes perfect sense.
"Any time people spend on playing retro games is not spent on them playing new games."

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.
[ link to this | view in thread ]
Gwiz (profile), 25 Mar 2015 @ 8:03am

Re: Re: It makes perfect sense.
There are a lot of people (like myself) who have little or no interest in almost all new games for various reasons...

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.
[ link to this | view in thread ]
bdj, 25 Mar 2015 @ 8:04am

Start an alternative FLOSS version?
If there is demand, why not start an OSS knockoff? Noncommercial, community built and difficult to shutdown... It's an old game so it shouldn't be that challenging with modern available tools and frameworks.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 8:26am

Hate to be a downer but...
Just having to show up in court to contest the claim might well eat up any profit from re-releasing the game. Or if not for profit, then your own money, down a rat hole.

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.
[ link to this | view in thread ]
Padpaw (profile), 25 Mar 2015 @ 8:30am

There is a serious mental illness going on in the ceo's of these companies "if we can't have it were going to make sure no one can".

Someone should do an offshoot of that hoarding show. make it about money hoarders
[ link to this | view in thread ]
Not an Electronic Rodent (profile), 25 Mar 2015 @ 8:31am

Oh, god, yes please!

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.
THIS! This sooooo much!

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.
[ link to this | view in thread ]
nasch (profile), 25 Mar 2015 @ 8:58am

Re: Two problems with one legal threat
It's not that they didn't care about the game, they likely just saw this as an easy way to kill off any potential competition it might have posed for their current titles, with a minimum amount of effort on their part.

And there, in a nutshell, you see what intellectual property has become.
[ link to this | view in thread ]
nasch (profile), 25 Mar 2015 @ 9:02am

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.
[ link to this | view in thread ]
nasch (profile), 25 Mar 2015 @ 9:05am

Re:
If the supposed copyright holders don't know if they do, in fact, hold a copyright, is it enforceable? Could the development just go ahead and deal with any C&D and the like by just saying "We asked and they didn't say no. They said 'Huh... we don't know!'."?
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.
[ link to this | view in thread ]
nasch (profile), 25 Mar 2015 @ 9:06am

Re: 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.

What did it get wrong?
[ link to this | view in thread ]
nasch (profile), 25 Mar 2015 @ 9:08am

Re: Start an alternative FLOSS version?
If there is demand, why not start an OSS knockoff?

What should it be called?

Everyone Dies Eventually
Inevitable Expiration
Living Forever Is Not a Thing

Other ideas?
[ link to this | view in thread ]
nasch (profile), 25 Mar 2015 @ 9:09am

Re:
There is a serious mental illness going on in the ceo's of these companies "if we can't have it were going to make sure no one can".

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.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 9:09am

Re:
That's not how the penalty system is structured.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 9:11am

Re: Re:
"I'd think the onus on knowing who holds a copyright starts with the holder first, licensees second."

(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).
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 9:43am

So sue them
If Night Dive wants it badly enough, they could file a declaratory judgment action against all three putative rights owners in federal court. "...if you make the game and it turns out we do have those rights you'll be facing legal action from us" should be enough of a legal threat to establish the court's jurisdiction. Then the studios would have to put up or shut up.
[ link to this | view in thread ]
Ninja (profile), 25 Mar 2015 @ 10:18am

Re: Re: Re: It makes perfect sense.
I hoped so and that's why I apologized for the "fuck you" in advance. It is still applicable to Warner e Co.
[ link to this | view in thread ]
Ninja (profile), 25 Mar 2015 @ 10:21am

Re: Re: Re: It makes perfect sense.
Count me in.
[ link to this | view in thread ]
ltlw0lf (profile), 25 Mar 2015 @ 10:44am

Re: Re: Re: It makes perfect sense.
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.

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.
[ link to this | view in thread ]
Dark Helmet (profile), 25 Mar 2015 @ 10:45am

Re: Y'know
Blech, this is 100% my fault. I occasionally use place holder titles for posts in the form of whatever pops into my head. In this case, I was pissed about the content of the source post and used a dumb title as a placeholder which held over in the URL for some reason. Doesn't excuse it, but that's what happened.

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.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 11:07am

Re: Re: It makes perfect sense.
Whoosh.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 11:07am

Re: Re: It makes perfect sense.
Whoosh.
[ link to this | view in thread ]
hobo, 25 Mar 2015 @ 11:10am

Re: Re: It makes perfect sense.
Exactly. To build off of your point, if piracy was really taking money out of the hands of companies (most of us agree it isn't but if it were), then this would be a logical counter. It would provide a non-pirated, licensed option for a game and would make some amount of profit for the company (whichever actually holds any rights to the game) with no work on their part.

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.
[ link to this | view in thread ]
Gwiz (profile), 25 Mar 2015 @ 11:23am

Re:
I propose the same solution as for those `disappeared' mortgage contracts: contest the ownership in court and if it isn't quickly proved, the judge can declare a forfeit on the ownership (basically public domain-ing the content).

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/
[ link to this | view in thread ]
DocGerbil100 (profile), 25 Mar 2015 @ 11:48am

Re: Re: Hmmm...
This articles title is "How The Apathy Of IP Rights Holders About Their Copyrights Killed A Game Re-Release" - and the article as a whole seems generally written to support that assertion. However, looking at the Kotaku article this article is based on, this claim seems to be basically untrue.

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. :/
[ link to this | view in thread ]
nasch (profile), 25 Mar 2015 @ 12:07pm

Re: Re: Re: Hmmm...
Based on the Kotaku article, Warners mindless, point-blank refusal to do business is the actual reason.

And why were they able to refuse to do business in this way?
[ link to this | view in thread ]
orbitalinsertion (profile), 25 Mar 2015 @ 12:24pm

Re: Re: Re: Hmmm...
They refused to even look for their contracts or records of rights. That's apathy. Their point-blank refusal is also apathy, if you want to go that way. Your suggestion is misleading.

"It's still unclear to me," he said, "with all the people that we dealt with, there wasn't anyone at either Warner Bros., Activision, or 20th Century Fox who said, 'Here's a copy of the contract that we have, and as you can see, we own all rights.' We don't know of any… we didn't see any of that documentation. And probably, without going to court, we never will."

Apathy.

Representatives for Warner Bros., Activision, and Fox could not comment by press time.

Serious, relentless apathy.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 12:56pm

Re: Re: Re: Re: It makes perfect sense.
so you just start yelling "fuck you" right off the bat instead of actually understanding the message. Nice Job.
[ link to this | view in thread ]
John Fenderson (profile), 25 Mar 2015 @ 1:04pm

Re: Re: Re: Hmmm...
I'm unconvinced. Both articles have a different perspective on the issue, but I don't see how one is more or less correct than the other.
[ link to this | view in thread ]
Uriel-238 (profile), 25 Mar 2015 @ 1:34pm

Legal development Hell is the reason we're not seeing new NOLF titles.
The original two were big favorites, so it would be due for either a redux, a reboot (a la T4ief or Tomb Raider) or a brand new sequel, but this legal confusion has been encountered before by those looking if it were feasible, and rejected.

This is only the latest failed attempt to resurrect The Operative and the NOLF Franchise.
[ link to this | view in thread ]
Uriel-238 (profile), 25 Mar 2015 @ 1:43pm

Best Practices
The reason they'd have to engage in anti-competition, such as quashing development of competing classic remakes has also to do with their best-practices policies. (e.g. presuming that the target audience are early-twenties fratboys who only want to play white dudes and encounter babalicious women who want to fuck them) AAA has been coming out with shitty title after shitty title continuing to not listen to feedback from the game community.

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).
[ link to this | view in thread ]
Uriel-238 (profile), 25 Mar 2015 @ 1:49pm

I'd love to see that.
I have CD versions of both games, and there are patches available online to remove the CD-required DRM. They're both still quite playable, and probably work fine in comparability mode.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 3:27pm

Re: Re: Two problems with one legal threat
Ok is this a failure in fiduciary responsibilities on the corporate end? There are people willing to give the corporation Money for an asset that they are going to let molder on the shelf. There are lots of things that they don't make available that they could be making money from. This is a waste of corporate assets.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 3:27pm

Re: Re: Two problems with one legal threat
Ok is this a failure in fiduciary responsibilities on the corporate end? There are people willing to give the corporation Money for an asset that they are going to let molder on the shelf. There are lots of things that they don't make available that they could be making money from. This is a waste of corporate assets.
[ link to this | view in thread ]
Desirsar (profile), 25 Mar 2015 @ 8:46pm

Re:
Seems like such an easy fix, too...

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.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2015 @ 8:50pm

Re: Re: Re: It makes perfect sense.
[i]Some reduction of 100% control of every property and franchise that they may or may not currently hold.[/i]

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.
[ link to this | view in thread ]
Socrates, 25 Mar 2015 @ 9:17pm

Property tax
A tax on all monopolies would solve many problems.

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?
[ link to this | view in thread ]
M. Alan Thomas II (profile), 25 Mar 2015 @ 10:03pm

There was a similar incident reported in the consultations prior to the Copyright Office's Orphan Works report back in the day. Sadly, this is one of those cases where you're going to have a hard time making a Fair Use argument from an orphan works basis.
[ link to this | view in thread ]
Ninja (profile), 26 Mar 2015 @ 4:16am

Re: Re: Re: Re: Re: It makes perfect sense.
Eh, did you understand I meant the FUs to go to Warner and the copywrong crew too? I just gave the guy commenting the benefit of doubt.
[ link to this | view in thread ]
Pragmatic, 26 Mar 2015 @ 6:37am

Re: Re:
This seems reasonable to me. Let's do it!

And let's make it so people have to register for copyright instead of receiving it automatically.
[ link to this | view in thread ]
BernardoVerda (profile), 26 Mar 2015 @ 8:34pm

Re: Re: Re: It makes perfect sense.
Yeah -- but the simple fact that we're yak-ing here, on a site like Techdirt, rather than playing the latest hot game that requires a graphics card more powerful (and more expensive) all by itself than the typical user's computer, is probably taken as a sign that our opinions (and gaming tastes) aren't really worth considering.
[ link to this | view in thread ]
Anonymous Coward, 26 Mar 2015 @ 9:04pm

Re: I'd love to see that.
You have the games? Great I know a Chinese game company that would love to revive these games. They don't care about copyright and IP issues and will ignore/steamroll over any opposition to get the games to market.
[ link to this | view in thread ]
Sheogorath (profile), 26 Mar 2015 @ 11:55pm

Copyright holders: the real reason that 'piracy' exists.
[ link to this | view in thread ]
Uriel-238 (profile), 27 Mar 2015 @ 4:00am

Re: Re: I'd love to see that.
Really? Who? Have their number?

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.
[ link to this | view in thread ]
Rekrul, 27 Mar 2015 @ 3:10pm

Re: Lost Sale
Yes Rights Holder, I would've paid you a second time for something I already own because the Win98 VM I currently use for older games gets the job done but GOG is steadily eliminating the need for it.

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.
[ link to this | view in thread ]
Rekrul, 27 Mar 2015 @ 3:16pm

Re: I'd love to see that.
I have CD versions of both games, and there are patches available online to remove the CD-required DRM. They're both still quite playable, and probably work fine in comparability mode.

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.
[ link to this | view in thread ]
Rekrul, 27 Mar 2015 @ 3:19pm

Re: So sue them
If Night Dive wants it badly enough, they could file a declaratory judgment action against all three putative rights owners in federal court. "...if you make the game and it turns out we do have those rights you'll be facing legal action from us" should be enough of a legal threat to establish the court's jurisdiction. Then the studios would have to put up or shut up.

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.
[ link to this | view in thread ]
Rekrul, 27 Mar 2015 @ 3:24pm

Here is what I would love to see happen;

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.
[ link to this | view in thread ]
nasch (profile), 27 Mar 2015 @ 4:09pm

Re:
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.

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.
[ link to this | view in thread ]
Uriel-238 (profile), 28 Mar 2015 @ 3:31pm

NOOOOOOO!
Disappointed.

And thanks for the warning.

Stupid lack of downward compatibility.
[ link to this | view in thread ]
Uriel-238 (profile), 28 Mar 2015 @ 3:35pm

Re: Re: Start an alternative FLOSS version?
The Operative

The UNITY Files

Do No HARM

The Archer Files

Shall I go on?
[ link to this | view in thread ]
Yes, I know I'm commenting anonymously, 30 Mar 2015 @ 11:02am

Re:
Thank you.

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).
[ link to this | view in thread ]
Roward, 20 Aug 2015 @ 7:06am

Re:
Problem is; Activision and Fox said they don't know if they hold any rights to it.
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.
[ link to this | view in thread ]