What ever happened to HOZER games

[ventrra]

Weird Al doesn't apply here, he actually gets permission from the artists involved BEFORE doing the parodies. I've heard him complain that Prince wouldn't allow him before, so he didn't do that particular song. Some have changed their minds afterwards and there have been some nasty arguments about it, but I believe he always avoided legal action, probably due to contracts.

Actually, he does apply here. 1) He didn't always get permission, can we say Coolio? 2) According the the Supreme Court ruling, artists like Al didn't need to get permission in the first place. In essence, the courts felt that requiring permission to parody was abridging the first amendment.

[Ed Oscuro]

I don't doubt that it's dangerous territory, that's why there have been so many lawsuits involved in settling the decision. However my statement merely amounts to: I believe that my efforts amount to basically the same thing (outside of the legality of the original ROM issue). Until a relevent court case actually appears, I'd honestly say that it's basically "up-in-the-air".

[/quote]

Yes, that's exactly what I'm driving at. I hope to goodness that none of our ROM hackers have to find out the hard way. Still, I find it harder to believe that "parody" is an argument here. As was noted earlier, Wierd Al has avoided legal action in the past various ways--if he ever had to go to court it would probably be a very dark day for Wierd Al fans, nevermind his wallet.

[ventrra]

Yes, that's exactly what I'm driving at. I hope to goodness that none of our ROM hackers have to find out the hard way. Still, I find it harder to believe that "parody" is an argument here. As was noted earlier, Wierd Al has avoided legal action in the past various ways--if he ever had to go to court it would probably be a very dark day for Wierd Al fans, nevermind his wallet.

There already was a lawsuit to those ends. In this case, involving 2 Live Crew: http://supct.law.cornell.edu/supct/html/92-1292.ZS.html In the end, the Supreme Court overturned an earlier ruling that forbade 2 Live Crew's parody.
The "wallet" problem is a likely problem, though. The courts have time and again ruled in favor of parodiosts, whether they had asked prior permission or not. The real questions involved are: 1) Is medium a factor? (i.e. Does the law cover all types of parody equally?) and 2) Can the person being sued over the issue afford to take the case to court?

[Ed Oscuro]

I don't see how medium is an issue, especially when certain hacked ROMs are being burned to cart and thus indistinguisable in terms of use from the original. Rather, I'd see damages to the copyright holder (I think the answer in almost every case of ROM hackers to be zero, though Hozer was selling games which somebody theoretically could have profited from...fat chance really) and I agree with what you say, that of the plaintiff's ability to pay damages. The only thing keeping damages and the plaintiff's ability to pay damages from being directly correlated is the fact that somebody suing would likely argue that it's hurt their brand name, and doesn't even have to be related to a sales figure (perhaps they argue that somebody, say Hozer, hurts the possibility of a future direct-to-TV console selling well).

I see where you're coming from with the use of music, but I think that the "used too much of the original" factor tends to hurt the ROM hacker's case...but the use of the parody argument doesn't sound like a bad bet.

[Ed Oscuro]

No "presumption" or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes.

Ah, there we go. This seems to be directly applicable to ROM hackers because, unlike Sony (the case used as a basis for the decision overturned here,) the duplication and reuse isn't meant solely for commercial gain (even, arguably, in Hozer's case). There is the parody aspect but more importantly the ROM hackers aren't working for mere profit, and almost certainly haven't caused market harm (in my view...at best, this "harm" is barely appreciable).

I think that showing how the ROM hacker group interacts with the classic gaming community (which supports such things as direct-to-TV consoles and ports of old games to newer game consoles, i.e. Williams Arcade Classics) and supports it is, in of itself, a compelling argument that no harm is being done.

[ventrra]

No "presumption" or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes.

Ah, there we go. This seems to be directly applicable to ROM hackers because, unlike Sony (the case used as a basis for the decision overturned here,) the duplication and reuse isn't meant solely for commercial gain (even, arguably, in Hozer's case). There is the parody aspect but more importantly the ROM hackers aren't working for mere profit, and almost certainly haven't caused market harm (in my view...at best, this "harm" is barely appreciable).

I think that showing how the ROM hacker group interacts with the classic gaming community (which supports such things as direct-to-TV consoles and ports of old games to newer game consoles, i.e. Williams Arcade Classics) and supports it is, in of itself, a compelling argument that no harm is being done.

That's an interesting point and would certainly be my position if I ever had to go to court over it.
Another interesting note is that many of the parody lawsuits aren't even being heard by the court these days. Mostly, it seems that the judges give a quick look over the materials and, if it seems to be a parody to them, throw the case out (i.e.: http://www.post-gazette.com/localnew...3bigdogrp5.asp )

[chadtower]

What has been mentioned briefly here but is extremely important has to do with the amount of the original being used. You are only allowed a certain % of the original before the copyrights apply. A music sample, for instance, can be allowed without permission and without royalty payment if it falls below a small threshhold of % of the original. That's how most musicians that sample get away with it. Once it goes over that %, then you get into copyright rules and royalties.

This applies to ROM hacking because in essence you're using nearly 100% of the original. You're only changing a bit of graphics here and maybe some sound there. You're not borrowing from someone else's work, you're using it in its entirety and that's not anywhere near the same as a music sample. This is the portion of the law that allows things like newscasts to show sport event clips and event highlights without always asking permission. They use such a tiny % of the original (think 4 seconds of a 3 hour broadcast) that copyright does not apply there.

Now, I'm not saying that's a perfect explanation, but that's what I remember from Music Industry class in college...

[Ed Oscuro]

What has been mentioned briefly here but is extremely important has to do with the amount of the original being used. You are only allowed a certain % of the original before the copyrights apply. A music sample, for instance, can be allowed without permission and without royalty payment if it falls below a small threshhold of % of the original. That's how most musicians that sample get away with it. Once it goes over that %, then you get into copyright rules and royalties.

That's a fancy way to waste a paragraph. Sorry Chad, but there is no percentage rule, threshold (one h) or not. The rule instead is whether they used "too much" of the original, and of course other considerations come into play that make the whole issue rather complicated.

I hate it when people try to sum up an argument by just doing a poor job of copying one single aspect of the conversation, I really do.

[chadtower]

Wow, dude. I'm trying to add in what I think my understanding is and you just out and insult me. And they call ME bad around here. I'm done trying to talk with you.

[Ed Oscuro]

I was actually rather toned down that time.

I won't go on like a child even though I'd like to, but rather let me put it in diplomatic terms:

It would be better for you to refrain from posting information which isn't correct (in this case, trying to oversimplify the issue) in this case. Copyright isn't as simple as people think, and your information really isn't helpfu. Really and truly. Sorry, but that's how it is.

[Sniderman]

heh....Now that this conversation has turned bitter - as they always do - shall we end this long-winded/meaningless conversation over an event one-year old and best forgotten, or shall I break out some fresh clubs for the deceased mare I see before me?

[Ed Oscuro]

While I would argue that we've been arguing the legal aspect and not beating a dead horse at all, I think that closing this might be a good idea. We really don't need to let everybody have the chance to confuse the issue with their opinions on the law.

[Arcade Antics]

Before we lock this one, I'd just like to chime in on the issue of Weird Al.

1. "Amish Paradise" - Coolio did give permission. He has received several (big) checks from the sales of Al's song and has had no problem cashing them. And may I please point out that Coolio's song "Gangsta Paradise" is a blatant, shameless ripoff of Stevie Wonder's "Pasttime Paradise"? Don't belive me? Buy the album "Songs in the Key of Life." (great album by the way.)

2. The Beverly Hillbillies Theme Song/Money For Nothing sounds so much like "Money For Nothing" because Mark Knopfler asked Al if he could play on Al's version. Al, of course, said yes.

- "A Close Personal Friend of Al"

[ventrra]

Before we lock this one, I'd just like to chime in on the issue of Weird Al.

1. "Amish Paradise" - Coolio did give permission. He has received several (big) checks from the sales of Al's song and has had no problem cashing them.

Funny, because my info on the matter of Coolio came streight out of Al's mouth on the VH1 special about him. In that special (Behind the Music, in fact) he stated that his group had asked for permission and Al had thought that he had gotten it, but didn't. Also included was Coolio's statment at the music awards saying that Al hadn't gotten permission (and Coolio had in fact said "no") and there was nothing that he (Coolio) could do about it.

[Sniderman]

It's simple gang, Al's "people" asked Coolio's "people" if Al could do the parody. Coolio's people said "OK" without consulting Coolio. By the time Coolio discovered what happened, the recording was done and the release was imminent. Since Coolio was still going to compensated for the permissison, he just decided not to make an issue of it - though he was pissed and grumbled as such at every opportunity - the Grammy award ceremony being one of those times. If he was really pissed off, he could have easily slapped down a C&D order or sued or any number of things. It was simply a bit of micommunication.

Plus, it wouldn't have helped Coolio's gangsta street cred to say he OK'ed and enjoyed anything done by Al. It'd be like Coolio saying he admired the song stylings of Vanilla Ice.

[Arcade Antics]

It's simple gang, Al's "people" asked Coolio's "people" if Al could do the parody. Coolio's people said "OK" without consulting Coolio. By the time Coolio discovered what happened, the recording was done and the release was imminent. Since Coolio was still going to compensated for the permissison, he just decided not to make an issue of it - though he was pissed and grumbled as such at every opportunity - the Grammy award ceremony being one of those times. If he was really pissed off, he could have easily slapped down a C&D order or sued or any number of things. It was simply a bit of micommunication.

Plus, it wouldn't have helped Coolio's gangsta street cred to say he OK'ed and enjoyed anything done by Al. It'd be like Coolio saying he admired the song stylings of Vanilla Ice.

Exactly.

But I'm still about Coolio shamelessly ripping off Stevie Wonder and then pretending like he has any business being angry with Al. Chutzpah to the Nth degree.

[Achika]

Ed~

I think what CT was getting at was "fair use". You've heard of it I assume?

http://www.copyright.gov/title17/92chap1.html#107

[chadtower]

From the url Achika pasted:

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

That's exactly what I was getting at in my "haven't thought about it in 5 years" kind of way.

[ventrra]

As to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work, the Court indicated that a parody presents a unique difficulty when evaluating the amount of copying because the success of a parody depends upon its use of the original work while its "art lies in the tension between a known original and its parodic twin." The Court then reverted to the "conjure up" test that would deny a finding of fair use under this factor only when the parodist "has appropriated a greater amount of the original work than is necessary to 'recall or conjure up' the object of the [parody]." Traditionally the third factor weighs against an infringer when the heart of the original work has been copied, but it is the heart of the original that "most readily conjures up the song for the parody, and it is the heart at which parody takes aim." The question for the Court then became how much further could the parodist go in copying the original once the heart of the original was used. The Court, as did the trial court, believed that 2 Live Crew did not use any more lyrics than were necessary from Oh, Pretty Woman and therefore ruled that the third factor favored 2 Live Crew's fair use defense, but since the Court had already remanded the case on the fourth factor it then also decided to remand on the question of whether the quantity of copying was excessive or not.

By definition, a perody MUST contain a large portion of an original work in a sense. (I.e.: If Al Yankovic had done his parody of Beat It with entirely different music or only a small amount of the music, it wouldn't be a parody of the original, it would more sound like the sort of stuff that They Might Be Giants performs. Original, but very strange.)

[Ed Oscuro]

Ed~

I think what CT was getting at was "fair use". You've heard of it I assume?

http://www.copyright.gov/title17/92chap1.html#107

If you can say he was "getting at it" then you could say falling down the stairs is "getting around." Yes, that's terribly harsh (and of course I mean it jokingly) but I'm dead serious that we don't need people dredging up memories of classes past in this conversation.

It's too bad that Chad couldn't take some criticism, but his explanation of Fair use wasn't terribly effective or correct...in other words, a form of misinformation :/

It's terribly technical of me, but I think that when you start saying "a % of the original" people start thinking there's a limit.

How do you suppose that stupid "You MUST delete this ROM after 24 hours!!!" rule developed, anyhow? It's not the people like Chadtower who do it...it's the people who read something that's not completely clear and run with it who do the damage.