Happy 20th Birthday To 'No One Lives Forever', The Classic PC Game That Can't Be Sold Today Thanks To IP
from the and-yet-it's-dead dept
There are a great many interesting arguments we tend to have over both the purpose of copyright law and how effectively its current application aligns with that purpose. Still, we are on fairly solid legal footing when we state that the main thrust of copyright was supposed to be to drive more and better content to the public. Much of the disagreement we tend to have with naysayers revolves around whether ever expanding rights coupled with protectionist attitudes truly results in more and better content for the public. We, to a large extent, say the current copyright bargain is horribly one-sided against the public interest. Detractors say, essentially, "nuh-uh!".
But if one were to distill the problems with the current state of copyright to their most basic forms, you would get No One Lives Forever. The classic PC shooter/spy game was released way back in 2000, times of antiquity in the PC gaming space. It was a critically acclaimed hit, mixing Deus Ex style shooter missions, spycraft, and an aesthetic style built on 1960s classic spy films. And, as RockPaperShotgun reminds us, No One Lives Forever celebrated its 20th birthday this November.
If you remember the game fondly, or perhaps if you never played it and are curious as to why there's so much love for the game, you might be thinking about going and getting a copy for yourself to play. Well, too bad. You can't.
FPS spy romp No One Lives Forever turns 20 today but alas Cate Archer is still confined to her room, unable to come out and play. The secret agent shooter has been tied up in legal gridlock for years. You’ll not find it for sale online aside from second-hand, but that hasn’t stopped RPS singing its praises all this time. A remaster still seems unlikely, but Nightdive Studios say they aren’t done trying to make it happen.
Legal gridlock is being extremely kind. Why you cannot buy this game is one of the most frustrating stories in intellectual property. We discussed much of this back in 2015. Nightdive Studios is a company that buys up the rights to older video games, updates and/or remasters them for modern gaming hardware, and then rereleases them. And we're talking about a professional operation that has managed to rerelease games like Doom 64, 7th Guest, and System Shock. In other words, these guys are legit and they know what they're doing.
And they really, really wanted to give No One Lives Forever the treatment. There was just one problem: nobody seems to know who holds the copyright for the game, but everyone independently has told Nightdive that they'll sue if they make the game. Warner Bros., Activision, and 20th Centry Fox all might own the copyright to the game, except that the paperwork for how the rights all shake out was contrived in a time before such records were digitized. So, someone owns the rights to this game. And Nightdive very much wants to work out an arrangement with whoever that someone is. But none of the three potential owners are willing to go hunt down the paperwork so such a deal could be worked out.
You can get a sense of how each is communicating with Nightdive from our original post on the subject.
"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."
And yet Nightdive was also told by all three entities, independently mind you, that they might own some rights and would go find out if Nightdive tried to rerelease the game to see if they could sue over it. The end result is a game that can't be released legitimately to the public over rights three companies insist are important enough to sue over, but not so important that they should know if they even have those rights to begin with.
Which brings us back to the RPS post, five years later on the 20th birthday of No One Lives Forever, where we find out that essentially zero progress has been made.
As one of the best FPS games on PC, it seems plenty worthy of a remaster or re-release, but efforts on that front have died in the water over the past decade or more. Hit any one of those quoted links to get the evolving story, but the short version is this: Nightdive Studios, who want to modernise No One Lives Forever, don’t own the rights to it. More than one company might have legal claim to it, but none of them are terribly motivated to unearth stacks of paper contracts literally hidden in basements. They’re just sure they don’t want anyone else making money off it without them. So Cate’s all tied up in the super villain’s lair without a Deus Ex Machina to save her.
On that front, Nightdive recently told The Gamer that they aren’t done trying to make it happen. “It is a process that we’re continuing,” said director of business development Larry Kuperman. “We continue on with our mission to unearth and bring back these classic games.”
And so the public is flatly denied legitimate access to content that is a piece of our culture over copyrights nobody can say for sure if they have. I can't claim to crawl into the founding fathers' heads to say precisely how they wanted copyright to work, but it sure as shit can't be like this.
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Filed Under: copyright, licensing, limitations, no one lives forever, rights, updates, video games
Companies: 20th century fox, activision, nightdrive studio, warner bros.
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In that case, you may wish to reconsider your use of the word "legitimate". Why should we accept the view of the copyright maximalists, even when we know they're wrong?
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It’s as if this IP is an orphaned work
So much for copyright extension, not to mention that a ton of old games, especially the ones that are not made by first-party game console companies, are at risk of becoming unavailable in the future, causing them to become abandonware. You HAVE to sail the high seas if you want to play them, especially country-exclusives too.
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An anonymous programmer should rig up an emulator to play Tomorrow Never Dies on a modern computer and throw it up on the steam store. That should shake out who does own the copyright real quick
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Re:
Different game
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Declaratory judgement?
IANAL, but a declaratory judgement of its orphan status seems possible. Use a bit of discovery to have the named suspects put up or shut up, and assuming no answer comes of that,have a judge certify fair market contract terms for any rights holder that comes in after the fact, with the ability to renegotiate after a couple of years.
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Re: Declaratory judgement?
"...Use a bit of discovery to have the named suspects put up or shut up..."
Yeah...except the way copyright works that won't work. For a motion of discovery to succeed you first need to have a proceeding lawsuit. Nightdive Studios doesn't have a case for litigation and will need a lot of lawyer time to come up with a reasonable excuse to bypass Activision and Warner stonewalling them.
So the only reasonable way to get find out is for Nightdive to risk their business by proceeding to remaster the game, at which point, should anyone actually come up with the rights, they will be toast.
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Re: Re: Declaratory judgement?
If the rights are worth arguing over. Nightdive could then offer to remove the protected portion and pay actual damages of approximately zero.
By definition, the use of a copyrighted work belonging to another cannot be considered intentional (triple damages) if you already asked the owner and they said "i dunno..."
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Re: Re: Re: Declaratory judgement?
By what definition? Can you name a legal case where a judge ruled that way? As far as I can tell the courts don't care until someone actually violates the copyright and then that's all that matters.
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Re: Re: Re: Declaratory judgement?
"Nightdive could then offer to remove the protected portion and pay actual damages of approximately zero. "
Mandatory damages for copyright infringement exist and they are utterly ridiculous.
I.e. Nightdive might offer to pay zero but the judge will still be forced to bend them over unless the plaintiff chooses to back off.
"By definition, the use of a copyrighted work belonging to another cannot be considered intentional (triple damages) if you already asked the owner and they said "i dunno...""
Not quite. By definition all the presumed plaintiffs have said, quite clearly; "We're pretty sure we own some of that. We do not allow you to use any of it, and if you try we'll sue".
Copyright law is heavily weighted towards the plaintiff. Anyone accused of infringement is, due to the wording of the DMCA, often required to prove themselves innocent before the plaintiff has to prove cause.
I usually like to claim a likeness between copyright and it's ancestor - medieval heresy law - not just due to the way the one evolved into the other but also because of the similarity where the claim of guilt often doesn't need to be proven before sanctions are imposed.
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Re: Declaratory judgement?
You're thinking of a summary judgment, but somebody's going to have to pony up legal fees for the discovery and I guarantee Activion and Co. won't make it cheap
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Re: Re: Declaratory judgement?
Yeah. Nightdive is unlikely to recoup their losses even if they end up provoking a case and winning - because the amount of lawyer hours required won't be cheap.
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The solution is simple...
In that case, Nightdive should try to rerelease the game. If any of the companies try to sue, Nightdive can show the receipts in court to indicate that they (Nightdive) tried for years to work out who had the rights but the suing company/ies were unwilling to check if they had any rights to No One Lives Forever unless Nightdive tried to rerelease it, and even then only to see if they had standing to sue, therefore rereleasing the game was the only way to get the suing company/ies off their asses and actually sort out this issue like Nightdive had wanted to do in the first place.
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Re: The solution is simple...
Legal defense is expensive.
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Re: Re: The solution is simple...
I began writing that comment when there weren't any on the page, but by the time I tapped Submit there were a bunch of (far better) responses and I realized my suggestion was kinda dumb in comparison.
If I could delete it, I would.
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no GAME lives forever.
FTFY
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Re: no GAME lives forever.
Copyright doesn't either, but that's not for lack of trying.
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Bait
If an individual attempts to bootleg an old copy on the open market, and is charged, would Warner/Activision/Fox then have to prove that they own the copyright if the individual claims that noone owns the copyright as a defense?
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Re: Bait
"If an individual attempts to bootleg an old copy on the open market..."
Depends. If by "bootleg" you mean an unlawful copy then pot odds are the claimants still win by default, simply because all they need to establish is that the copy isn't legitimate.
After that there'll be a lot of trouble sorting out who actually gets the awarded damages.
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Re: Re: Bait
Wouldn't anyone bringing a lawsuit first have to show that they have standing to bring the suit in the first place? The only one who would have standing is the copyright holder, so, they have to produce the proof they hold the copyright, or the suit gets tossed really quickly.
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Re: Re: Re: Bait
"Wouldn't anyone bringing a lawsuit first have to show that they have standing to bring the suit in the first place?"
Yes and no. The DMCA is a bit ambiguous here. If you can show that a copy has been unlawfully made then there's a mandatory, ridiculously large, minimum damages which are to be awarded. The burden of proof required to start the lawsuit to begin with is...flimsy, as can be demonstrated by certain copyright troll lawyers managing to start cases without the copyright holder even knowing that lawyer had chosen to represent them and start a case.
It's hard to say since usually copyright trolls rely on the extortion model of sending an angry e-mail threatening to hit you for <unreal sums of money> but as long as you hand them a few Franklins they'll accept not to haul you to court. I don't think we have a good precedent for a major company taking another company to court while lacking habeas corpus.
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How have I lived without this?
Gosh, never knew how impoverished I am without... (I'd have to open the window to see the name, forgot it already).
Now, Timmy. You CAN "claim" to do so. Indeed, your opening DOES make such claim: "the main thrust of copyright was supposed to be to drive more and better content to the public". Your wirittin is just wooderfundly incurate. And vvulgalicious.
But I dispute the opening claim because it's yet again the notion (in modern terms) that "consumer" is to be the beneficiary of law, NOT producers. That just cannot be done in practice. You cannot consume what hasn't been produced. And the actual text states only "Authors and Inventors". Not pirates. Not couch pumpkins.
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Re: How have I lived without this?
Have you ever thought about taking up a hobby? You know, maybe one that doesn't involve spending all day on a site you profess to hate?
You really need to get a fucking life.
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Re: How have I lived without this?
Um, yes. It is the consumers who are ultimately supposed to benefit. It says so right in the Constitution. It does so by providing incentive for producers to produce, and in this case, the producers aren’t producing, so this is clearly a failure of copyright.
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So: 1) ridiculous over-exaggemeration of importance of some game
2) Your own "can't" shown to be false.
3) Complete misunderstandnation of plain text as to the beneficiary.
Your usual. Since telling you to do better hasn't worked because you're a complete contrarian: DO WORSE NEXT TIME, Timmy!
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Re:
Why do you hate created content so much, blue?
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Re: Re:
Jealousy over the fact that others are out there capable of creating works that people actually want, rather than just the sewage that is the 'best' they can do.
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Re: So: 1) ridiculous over-exaggemeration of importance of some
1) The “ridiculous over-exagg[]eration” is a genuine, reasonable opinion held by many who played the game. Others may reasonably disagree, but that doesn’t invalidate the claim. Also, while I haven’t played the game myself, Techdirt didn’t really make any grandiose claims about the game, and it’s important enough that I’ve heard of it, so I’m not sure that they exaggerated anything.
2) What “can’t” are you talking about?
3) Assuming you’re talking about the Constitution on copyright, it says it’s for the “arts”, not “artists”. A plain reading of the text suggests it’s for the common good of culture, not the ones producing it. It does so by giving incentive to artists in the form of copyright if Congress wants to.
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Re: Re: So: 1) ridiculous over-exaggemeration of importance of s
*"A plain reading of the text suggests it’s for the common good of culture, not the ones producing it. It does so by giving incentive to artists in the form of copyright if Congress wants to."
It's such a simple, self-evident concept, but boy do these chuckleheads struggle with it.
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Re: Re: So: 1) ridiculous over-exaggemeration of importance of s
And let's not forget that almost unique in the constitution Article 8 is that one statute which is optional. Congress may extend protection. Not shall.
The constitutional protection of copyright can be dissolved completely with one single simple-majority vote in Congress.
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Hmmm
A quick search and I found a used one for sale on Amazon and a bunch on Ebay...
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Re: Hmmm
That's not the issue being discussed.
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Re: Re: Hmmm
"That's not the issue being discussed."
The headline disagrees.
" The Classic PC Game That Can't Be Sold Today Thanks To IP"
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Re: Re: Re: Hmmm
No, the article clearly states there are used copies around, and the entire thing is about releasing new copies.
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Registration of copyright...
Since we have a supreme court ruling that registration is required to make a copyright claim in court, this seems like a situation ripe for comedy. The publishers would probably have to sue each other (or could be manipulated into suing each other) to establish ownership before suing. Make them go through the boxes of contracts on their own dime.
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Now I'm sad.
I bought / played / still have CDs for both games.
But yeah, I'd been wondering why nothing was ever done since the first two. I noted the second one A Spy In HARM's Way shared a common game design convention as Watch Dogs 2 in which unconscious mooks wake up and arm themselves, leading to the gritty practice of killing them after they're KO, which is rather dark considering both NOLF and WD2 are thematically lighthearted.
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Copyright Notice?
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Copyright Notice?
Sorry, submitted before ready.....
Does anyone out there have a copy? Does the Box have a copyright notice? Or if you start the game is there a banner with copyright notice?
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NOLF CD Insert © Boilerplate
© 2000 Monolith Productions, Inc. and Twentieth Century Fox Film Corporation. This product uses the LithTech™ game engine. © 1997-2000 LithTech, Inc. This product also uses the Miles Sound System, © 1991-1999 by RAD Game Tools, Inc. Fox Interactive, The Operative, No One Lives Forever and their associated logos are trademarks of Twentieth Century Fox Film Corporation. LithTech is a trademark of Monolith Productions, Inc. The ratings icon is a trademark of the Interactive Digital Software Association. All other logos and trademarks are property of their respective owners.
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Re: NOLF CD Insert © Boilerplate
And every one of those entities has been sold in whole or in part multiple times, been diced, folded, spindled and mutilated, packaged, repackaged, bankrupted, been sold off in a garage sale, left in someone's pocket while in the wash or otherwise altered.
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I own the copyright. Use it as you will.
That's right. I own the copyright. Or not. Who knows. We'll find out together.
Publish the game under an open license. Any CC will work.
If any of the nice people who think they own the copyright come after me, well, we'll figure it out in court. THEY'LL have to prove ownership, If I lose, well gofundme is there.
E
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The fictious business plot.
Someone with organization skills could create a fictitious business and crowd-fund / crowdsource a redux / sequel, possibly also noting that the NOLF / The Operative / Kate Archer IP is in a litigation deathtrap and we may need a legal warchest / army of volunteer lawyers to defend it during production.
Then, even if the release is short lived, it'll be out there and we'll know exactly who is letting the IP rot in a vault. And it'll be yet another example we can pull out when we argue the long failure of the IP system to promote the progress of science and useful arts.
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"Show me or it doesn't exist."
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I think the important takeaway is this: These companies MIGHT own the rights but won't look because it's too much effort BUT will find out who does so they can sue them.
Is it any wonder people don't respect copyright?
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No One Lives Forever- Except for Copyright.
I'd say that Nightdive should release the game, the onus would still be on the plaintiffs, and if they cant provide proof of copyright, then the game can be released as it should be
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Re:
To be fair, that's not true, as Copyright is expiring again, as it did last year and this year, and will again this coming New Year's Day. It's just that the terms are so goddamn long that it raises the question as to who the copyright is serving because the public sure ain't the beneficiaries…
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why not do it anyway?
Surely if they get sued by all 3 of them, they can counter-sue the two who don't actually have that right to pay of the 3rd...
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Meanwhile...
pirate copies work wonderfully and are readily available. Not that anyone should pirate copyrighted works, mind you.
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Re: Meanwhile...
The point is not whether you can play the original game but whether it can be remastered and modernized.
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Good evidence for the legal system being messed up
So apparently it doesn't make financial sense for these companies to find out what rights they have in order to license the content, but it does make financial sense for them to do so to sue. That means that they see the second as more profitable than the former, which seems wrong.
Makes you wonder if it's the companies or their law firms making the decision - I can certainly see there being many more billable hours in a lawsuit.
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Re: Good evidence for the legal system being messed up
Well the American legal system is staffed by the same people who make American overseas policy after the promotion
You see the resemblance.
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Are you insulting my monkey?
Game designers circa 2000 were learning the value of writers.
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At least this situation illustrates the differences between physical and digital only copies. When a game is only released digitally, they can make the game disappear from all legal channels. However when there's a physical release, copies of the game will continue to be available. Even if a store has new, sealed copies, they can continue to sell them.
Maybe Nightdive should go ahead and patch/enhance the game, then sell a patch that fixes and enhances the game on modern systems. Not as good as selling a download of the full game, but there wouldn't be a thing the copyright owners could do about it.
Actually, when I installed my retail copy on my old system, the biggest problem I had was downgrading my Nvidia drivers so that the graphics weren't screwed up (same problem with AvP2). When I played the sequel, I had to downgrade the drivers to an even lower version to get rid of all the glitches.
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To wit: P.T., which Konami released to build up hype for a new Silent Hill game. After Konami axed that project, it also pulled P.T. from the PlayStation Store and stopped people from reinstalling it if they had previously downloaded it. I’m not even sure people who still had it on their systems after it got pulled can even play it again now.
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Re:
I think they can. I once read that systems with P.T. installed were being sold on eBay for higher than normal prices.
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Well, that's not **quite** true.
"I can't claim to crawl into the founding fathers' heads to say precisely how they wanted copyright to work, but it sure as shit can't be like this."
A few of the founding fathers were kind enough to leave buttloads of correspondence behind regarding exactly how they thought; Jeffersons famous letter to McPherson springs to mind, quoted in part here;
https://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html
Although Jefferson referred to patents here the argument is generally about intellectual property in general and the very ambiguous justification for providing government protection for ideas.
Another very clear indication is the constitutional segment on copyright and patents - article 8 being that very rare or even unique clause in that document which is referred to as an option, allowing congress to choose whether to extend such protections or not.
It's pretty clear the founding fathers weren't convinced about the legitimacy of copyright at all. I'm not aware of any other article which is posed as an "OK, if you want to you can do this".
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Contracts are one thing, but if there is a registration in the Copyright Office, it should be clear. If there isn't... none of those contracts or assignments mean squat. (Large corporations and lawyers mean trouble, though.)
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