Medium Bob's Red Sea Crossing Auction on Ebay.

[Dino]

Thank you, Dino, for taking the time to articulate all of this. While I appreciate the efforts of historical preservation, the fact is that - under our current system of copyright law - making reproductions of many of these games is a violation of law. With that, there is the letter of the law and the spirit of the law, and what the overall sense of ethics there is about all this. It would be ethical, as well as just polite, to get permission from Mr. Stacks and possibly even go so far as to give him a cut of any reproductions made.

 

I agree. That would be the best way to approach it. I personally wouldn't try making repros without Steve's permission. Any lawyer would advise you the same. Breach of copyright is a serious matter, regardless of the $ involved. Its not the civil suit that would worry me, but the criminal suit Technically, you are committing software piracy and THAT is not a laughing matter. Steve, or anyone for that matter could refer the matter to the police without incurring a dollar in cost

[atari181]

You could sell an Atari game biblical box with free game though

[Supergun]

The legal issues with this particular situation is very unique because the game in question is NOT a prototype. It was a "released" game that could be "purchased" and we now know of at least 2 people who did just that back in 1983 as so far two copies have surfaced. So technically, making a small production run to offset the cost of buying the game may get complicated. It is ironic because if it were a major multi million dollar company like Atari or Nintendo or Sega, it actually wouldn't matter. Production runs of 2600 Realsports Basketball, Genesis Sonic Crackers, SNES Star Fox 2, are all examples of high profile first party games which have had reproductions made of them, and nobody cared and nothing happened. But they all had one thing in common. They were unreleased protos, made by a company years ago for use on obsolete hardware which they no longer support.

 

In this case, it is NOT a proto. It is an actual RELEASED game. Also, rather then some faceless million dollar corporation, we are dealing with a single individual, who is actually still around and was contacted about it. And worse yet, seemed to disprove of the idea of the game being copied and produced. So yes, this will be a little different then anything else we have dealt with before. Nobody really knows what kind of a guy Steve is and how he will react (if at all) to the publicity this thing has brought forward. Interestingly enough however, I get the impression when you look over his website and look at the imagery he has put forth there, and couple that with the statements he made about this game when he was contacted, that he wants to disassociate himself (or at the very least distance himself) from this entire mess. He thinks this is all obsolete technology, and we are all nerds and losers, etc. And for now, a mere 30 bucks was not and is not enough to motivate him to try and look for the unsold stockpile of these cartridges whihc he may or may not still have. But guess what, MONEY changes everything and everyone. And all this publicity, coupled with the crazy prices that the games will end up selling for will get his attention. And when that happens, watch how quickly he goes from the silent "I don't care about this stuff, leave me alone" attitude to the "i want my cut so show me the money" attitude.

 

Now granted, we have no control over that. This whole thing is now much too public to try and hide it. What we should have done was manned up and simply purchased the game from nagn several years back, whether as a conglomerate / community pool of funds, or simply one of us individually. Nagn would have made a good return on his investment (let's face it the game was his lottery ticket and he deserved to cash it in), and the buyer would recover the funds used to purchase it (by making a production run for the community), and last but not least, we would have all had copies of the game and it would be shareware by now. However, this most likely may not be possible now. And the buyers (bidders) of these auctions surely have considered this (as I have) and they have come to the realization that they may have a difficult time recovering their investment. The R.O.I. is simply not there if a reproduction run cannot be done. So this may or may not hurt the sellers as it may lower the roofs of the top bidders.

 

Think about it. The game is NOT a "one of a kind". There are TWO copies already, plus others can surface at any moment, especially with all the crazy publicity surrounding them before, during, and after the auctions end. It is only a matter of time before the information reaches someone who has a copy. In addition, Steve himself may also have a box full of them which he may dig up after the auction ends incorrectly thinking "well hey, if they sell for $10K a piece, I can make a crap load of money now so I will go through the trouble of digging them out of storage". So because of all this, the "high end trophy on a shelf collector" will not bid so high anymore because the game is NOT a one of a kind.

 

So the game does not appeal to either market. Not to the super collector, for him to keep to himself, nor to the high profile collector, for him to recoup his money by making a run because he cannot. So in theory, the game has become poison! It is crippled and we have ourselves a stalemate here. We caused this mess!

 

The only thing that I am fairly certain of here is this.

In the end, with so many "possible" ways in which more copies of the game can be found, it will almost certainly eventually get dumped by somebody at some point in the future. And when that happens, and the rom data is shareware and everybody can torrent it or download it and such, we will all be able to make our own individual cartridges at that time. And there will not be anything at all that Steve can do about it. Again, ironic. He poured his blood, sweat, & tears into programming a game, hardly made any money from it then, and will not make any money from it now. It is almost smarter to just give permission for a reproduction and as was mentioned earlier, ask for a small kickback, or perhaps even that a small portion of the proceeds go to a charity or religious organization, assuming Steve is still a religious man?

 

Lots to consider. So many angles here. Who really knows what will happen. One things for sure though, whoever paid Steve $34.95 plus shipping and handling for this cartridge back in 1983 legally and legitimately "purchased" the game and has a right to do whatever they want with it. And so far, although not the original owners in either case, two people are confirmed to have done this. Others will surely follow.

 

(Steve not knowing EXACTLY how many he made or sold may actually be an ADVANTAGE to us, if you catch my drift)

Edited September 8, 2012 by Supergun

[accousticguitar]

And it still could be fake.

[icemanxp300]

If you find bit-rot it's not the same game anymore now is it

[Dino]

My take on ths is that it will get released in repro form (unless Steve produces a hundred or so copies he has in storage). The dollars involved and the kudos the buyer would get from this community would be too much to ignore. Steve is likely to either give his approval to make the repros, or he will agree for a cut of the profits. The negotiations may be long and protracted, but I have confidence we will get there. What this all means is that the two buyers will not factor repro money in their bids, and only nagn and travis will lose out (more nagn because travis never had the chance to sell his as a one-of-a-kind). If nagn had sold his 5 years ago, the buyer would have had the confidence that he could take his time striking a deal with Steve, and in comfortably getting out repros before a second is found. In hindsight, the buyer would have had 5 years to do all this! Now, there are no guarantees for either buyer that they will be the one to make a deal with steve and release repros.

 

Of course the double whammy for nagn is that his label is much worse than travis'. And the crazy collectors who will pay thousands for this will pay a whopping premium for the better labelled cart.

[Schizophretard]

Can someone explain this legal stuff with examples of reproductions or anything Atari related? I can buy reproductions from the AtariAge store or Hozer, I have a Harmony Cart with thousands of ROM's from Atarimania, I can look up scans of almost every manual, box, or cart, many of the most collectible carts are old school pirate carts,...... I'm having trouble seeing how making reproductions for a handful of people would be a major problem.

[Robocop2]

Probably because the programmer was contacted, made aware of interest in the game and stated clearly he does not want reproductions made. It also kind of hampers dumping the ROM since there are basically two copies it really would be a process of elimination to find out who did it.

[Dino]

Can someone explain this legal stuff with examples of reproductions or anything Atari related? I can buy reproductions from the AtariAge store or Hozer, I have a Harmony Cart with thousands of ROM's from Atarimania, I can look up scans of almost every manual, box, or cart, many of the most collectible carts are old school pirate carts,...... I'm having trouble seeing how making reproductions for a handful of people would be a major problem.

 

You cant buy repros of Atari games from AA, only some 3rd party titles (potentially) and even then Al would remove them from this site if the copyright owners demanded it. The way it all works, in laymans terms, is after a copyrighted item is no longer commercially viable, it is customary for the copyright owners to allow usage of their work free of charge. If someone starts producing copies for resale, that is not allowed and a breach of the public domain rules. The copyright owner, at any stage, can stop the ROM being made freely available if they like, but until they do that, its quite legal to share. So in short, you can buy as many original RSC carts as you want, you can share the ROM for free with whomever you want (so long as Steve doesn't hit you with a C&D, in which case you wouldnt get into trouble unless you didnt follow the C&D) but you cannot make repros and sell them.

[Dino]

BTW, Hozer is breaking the law. He sells even modern homebrews withot asking permission or paying royalties

[Dino]

Wow! Travis' cart is just shy of $7k and Nagn's has stalled at $5.5k. Neither has hit the reserve yet....

[+Gemintronic]

Reserve? I don't know much about eBay terminology. Does that mean if no one hits your "reserve" cost then you can return the cart back to Hozer?

[accousticguitar]

"Reserve" means if you don't bid high enough you don't win the auction. It remains unsold.

[Crazy Climber]

Yeah, good points from everyone about how this is just an individual and not a large company/etc so I suppose the possibility of legal action is a threat but here is the real deal..

 

- At BEST you could sell 200 reproductions, realistically 100 or so....

 

- By the time the C&D hits you, 90% of them will already be sold...

 

- Anyone else that needed one and was "in the know" could just PM you or you could just leave it at that and hang on to a few extras for trade bait/etc..

 

- You sell 90% of them the first day then follow the C&D, stop selling them publicly and nothing will happen

[Crazy Climber]

Wow! Travis' cart is just shy of $7k and Nagn's has stalled at $5.5k. Neither has hit the reserve yet....

I'm quite surprised the reserve has not been met at 7k, now it's getting a little silly.

[Cebus Capucinis]

With all due respect, gentlemen, I want to clarify one issue: A C&D is not required by law as a step prior to lawsuit. A C&D is used as an intermediary means to prevent an individual from continuing an action that is infringing or against a plaintiff's wishes, and it's generally used in situations in which a lawsuit is not seen as the best solution or when a lawsuit is seen as more costly than simply typing up a letter. If the defendant in the situation is likely to follow the cease & desist, and the plaintiff does not need damages but only wants an action to cease, a C&D letter is considered the best option possible.

 

However, it is not a required intermediary step before the case goes to court, and if the plaintiff chooses, the plaintiff can immediately go to subpoena. It seems that you're insinuating that nothing can be done until a C&D is issued, which is not the case at all. If Mr. Schustack decided to go directly to court over reproduction carts, he has every right to do so, and does not need to send a C&D prior to. In fact, I'd bet dollars to doughnuts that Mr. Schustack wouldn't even send a C&D, because when viewed in light of certain factors (stated below), it makes poor economic sense to simply send a C&D. It would likely go straight to court.

 

As Crazy Climber states, the reproduction run of carts will likely not be very large, and given the usual amount of reproduction carts sold, it is likely that the run would not exceed the small claims court limit for most states in the United States. Even if the original cart sells for over the small claims court limit, it is a hard argument to state that reproductions have devalued Mr. Schustack's "brand" in a level beyond the $5,000 - $10,000 that is the upper limit for small claims court, given several factors such as the age of the work, the small number of the work in existence, and the fact that the work has not been actively used or engaged in for such a long time (despite the work being still well within copyright standards, judges do consider the fact that an individual hasn't done more than let inventory sit in an attic for 20+ years). This is a double-edged sword, as it means that Mr. Schustack can very easily pursue damages in court without the hoops necessary to jump through in order to get a case to court. This also means that he need not have attorney representation, which makes it second-fold even easier for him to pursue legal avenues, which granted, would be limited to court fees in addition to whatever devaluation of the "brand" is considered.

 

The other side of this, though, means that those wanting to make a repro are more likely to take that gamble, and it is unlikely that the court would require and follow-up that all copies already made be destroyed. The defendant would pay whatever sum in small claims court required plus legal fees, and would be required to cease creating reproductions.

 

The big question in this instance would be what 'damages' would be incurred and decided upon by the guy in the black robe, and to be honest, I can't see said damages being much (but then again, I have a bit of vested interest in repros, since I'm a collector myself) -- certainly not the amount of these cart sales. It is reasonable to assume that the valuation of the carts would go downhill with more in the 'pipeline', so to speak, and if one were a defendant in the case, one could easily point to any number of repro sales in the past to get to a total that would be on offer for damages. Anyone going into something like this seeking hundreds of thousands or even millions of dollars would pretty quickly learn that the amount they want would be completely out of the question in a court of law.

 

How the court would come to the number would be as follows: Utilize the initial cart sale of whatever these end up at, then look to sales after reproductions (if any exist). If they can go this route, and the repro can be proven to directly be a cause for the lesser sales, damages would be whatever the DIFFERENCE between the two is. Surely this would not be more than $2.5k or so at maximum. There's a lot of hoops to jump through to even get to that point to begin with, and without post-repro sales to indicate how the valuation has gone down, you enter very vague territory in which the court generally can decide for itself what devaluation entitles. A plaintiff is not eligible for full damages in a devaluation case -- they are only eligible for damages equal to what the devaluation would be in order to 'get them' to full value of existing sales.

 

Now, granted, the plaintiff would likely utilize the eBay and GG sales of these two carts as some sort of baseline, but the defendant could easily state that due to the nature of collecting, the baseline is more of a ceiling than any sort of real indication of price. It would be up to the court to decide whether a cart sale for $10k or so (provided it goes that high) is indicative of a significant enough monetary amount to move beyond small claims court.

[pangasinan]

Simple answer to all this legal issues is make the repros off shore in another country besides USA.

Cant be sued then.

[Crazy Climber]

Simple answer to all this legal issues is make the repros off shore in another country besides USA.

Cant be sued then.

ugh, international shipping charges

[atari181]

Simple answer to all this legal issues is make the repros off shore in another country besides USA.

Cant be sued then.

I looked into this yesterday, and you are exactly right. Spoke with an attorney about this situation. He said that given the situation doing just that would shield you from any problems.

[Gorfy]

Simple answer to all this legal issues is make the repros off shore in another country besides USA.

Cant be sued then.

I looked into this yesterday, and you are exactly right. Spoke with an attorney about this situation. He said that given the situation doing just that would shield you from any problems.

 

Does Put-In Bay count as "off-shore"?

[bennybingo]

Legal action...over a game the original developer wants nothing to do with??? F&*king ponderous!!!

 

I guess we can just chalk another one up in the "fighting over something religious" column. Surprise, surprise...oh, and another surprise: it involves money as well!

[Lentzquest]

The greedy reserve prices involved in both these auctions is amazing, especially for something they scored for peanuts. I already hate the entire concept of reserve prices. If someone wants $10,000 minimum then they should start bidding at $10,000. Even if I tossed my hat in the ring to go for one of these, the way both auctions have been set up would have turned me off of buying either altogether.

[DeusExMachina]

The greedy reserve prices involved in both these auctions is amazing, especially for something they scored for peanuts. I already hate the entire concept of reserve prices. If someone wants $10,000 minimum then they should start bidding at $10,000. Even if I tossed my hat in the ring to go for one of these, the way both auctions have been set up would have turned me off of buying either altogether.

I'd say there is a fair chance that Nagns cartridge may not sell. I think enough people are wise enough to realize that the cartridges value is being inflated by these high reserves. This reminds me of the NES crowd...they always list rare cartridges with extremely high reserves and then never sell them. It would be interesting to see if neither cartridge sold...but I doubt that will happen.

[Cebus Capucinis]

I have to agree, to be honest -- the high reserves completely turned me off to the cart. I wasn't a contender anyway, but a reserve not met at $7K or even $5.5K to me is bordering into the territory of what I consider unreasonable greed.

 

Having said that, I am betting the same -- that mediumbob's cart sells, but nagn's does not.

[Crazy Climber]

Legal action...over a game the original developer wants nothing to do with??? F&*king ponderous!!!

 

I guess we can just chalk another one up in the "fighting over something religious" column. Surprise, surprise...oh, and another surprise: it involves money as well!

Well, in Steve's defense here he never threatend legal action/etc that was something the forums have blown up into a big deal when all he said was he didn't want it reproduced. Like you said, he pretty much wants nothing to do with it and I don't think it was the money that stoped him from letting people reproduce it (if money was the issue he would dig those carts out of storage)...maybe he doesn't want it reproduced since it's not his best work and his name/etc is on the actual cart and he would just rather forget the entire thing? (wasn't that was the case with the game Harem or whatever it was called) I don't know, I don't remember anything about him going the lawsuit route...