Wednesday, January 23, 2008

The CoCo & Intellectual Property Rights

I've been studiously avoiding weighing in on this issue for about three years now. heh! :) But seems it's time to have a go at it. The issue is, of course, intellectual property rights (primarily copyright, but also includes Trademark and Patent) for CoCo stuffs. First some explanation...

What kicked this post off was, of course, the discussion about Hot CoCo. In a bit of odd timing, I also got a rather legal sounding email recently from a CoCo programmer who objected to one of his old programs being posted to a portion of the site. It was an accident (the files were mistakenly included in an archive of other stuff) and resolved amicably for all parties involved, but it's definitely not something we want to make a habit of having to deal with. To that extent, public announcement:

If an original author of a CoCo program (or anything for that matter) discovers something that belongs to them on any Club LTD Studios site, that shouldn't be there, email me immediately at I'll pull it off right away. I do not "police" the other areas of the site. I rarely use downloaded software on my CoCo or emulators, except for the modern stuff, most of which I buy. Most the older stuff is simply not of interest to me. CoCo MAx and Max 10 were great programs back in the day, it was a flash-back blast to play with them again (I own the originals) but I'll take Photoshop and OpenOffice now, thank you. Using those old programs is a chore. Occasionally I come across a program that IS still fun to use on the CoCo, like Musica II, in which case I acquire it for my collection by buying the original on eBay and running off of backups. That's about it. I do browse through the message boards, posts here on the blog, and the file areas, of course. But I don't examine them particularly closely if they aren't my bag of dough nuts. So, if you see something that should not be there, give me a shout. I'll take care of it. :) By the same token, if you WANT your stuff posted, drop me a note, as well. We'll work something out and I'll shout to the world that it's here!

So what's all this have to do with CoCos and intellectual property rights? Well, a lot of people want to preserve the CoCo and the publications and software that were produced for it. A noble goal, to be sure. Occasionally, though, there's a bit of a fight about ownership and in the enthusiasm to share, property rights can get pushed aside. And that ain't right. That fight always boils down to the "what should be" side and the "what is" side.

"What Should Be"

These folks basically argue that 20-30 (older) year old software for a defunct 8-bit computer should be released into the public domain. Most of it is abandoned (no attempt to conduct commerce using it and/or insufficient attempts to protect the rights) and none of it has any real commercial value any longer. As such, the law should reflect this "abandonware" and, after a suitable period of time, it should default into the public domain. The main reasoning is that without such a mechanism in the law, historically important information (including code, articles, designs, art, et al.) will disappear long before the property rights expire.

"What Is"

This group's argument is pretty simple. It's the law. The original creator of a work should (and does) have a right to do with it as they please. They own it and if they want to let it fade into oblivion that's their right.

I've been in content creation and media, in some form of another, my entire working life; frequently independently, as well as for the likes of America Online and The Borders Group. I've signed so many non-disclosure agreements and property transfer contracts I can't talk about half the stuff I know. Regardless, I have an acute awareness of intellectual property rights and how creators can get royally screwed if they aren't careful and diligent. As such, I'm a big supporter of intellectual property laws, particularly copyrights, and due compensation to the original creator.

Unlike trademarks (and to some extent patents), copyright is pretty much rock solid. Ownership can get muddled, but the rights themselves are firm. If you hold a trademark, you have to defend it vigorously and consistently. For example, if you've ever run a moderately successful website or published something in print, you've probably gotten the "proper use" letter from a company.
"In [publication] you used the term "clorox" as a generic adjective/verb for bleach products. Please be aware that Clorox brand liquid bleach is a trademark of [company]. It should always be used as a proper noun... etc." Annoying, but they have to do that and send out those letters to protect their trademark. The law requires that effort if they ever need to take legal action to protect their brand. Copyrights are under no such restrictions, though. To protect a copyright the owner has to do.... absolutely nothing.

A copyright (after 1978) lasts the life of the original copyright holder, plus 70 years. That's it. It doesn't fade, and there's no mechanism to change the duration. Copyright covers several aspects of a work, as well, including original presentation. To use a recent example from the CoCo world, you can't reprint Hot CoCo in print or digital form, without permission, because the copyright is still in effect. The copyright covers whatever rights the owners purchased, plus the original presentation including format and artwork. Copyright doesn't cover the title of the publication (that's trademark), but does cover the logo (font, colors, etc.) artwork used to represent that title. So, you can't reprint the original Hot CoCo (e.g. scan it cover to cover and release it) without permission from whoever owns the rights to the publication. But...

Hot CoCo had many authors in the form of contributors. How's that work? Well, the original publishers of Hot CoCo would have purchased rights from the original authors. That's the hang up with the current owners of the publication. They have no idea or records of which rights were originally purchased or from whom. And even if they did, they probably would figure out pretty quick that there would be no profit in digging up that information and sorting it out just to appease a few 8-bit computer hobbyists.

Lonnie Falk was in a similar situation when he was negotiating "The Rainbow on Disk" project. Any rights not originally acquired by the publication are, by law, still owned by the original author. The publisher has an obligation to do their part to protect those rights. Which means they can't just release the original publication into the Public Domain for free. The publisher never purchased that right. If they just release the author's work, included in their original publication, for free then they could be held liable to the original author for deluding their rights as copyright holders. (In other words, if the publisher gives away the work for free, the original article authors could claim damages because the potential to resell the articles, which they still hold the rights to, is greatly diminished, if not obliterated.)

Most common rights purchased by a publisher of a magazine, here in the U.S., are First North American Serial Rights. Most will also purchase, as part of the deal, non-exclusive Reprint Rights or First Reprint Rights. That's pretty much standard. That gives the exclusive rights to be the first to publish a work in North America, and the right to reprint that work as they see fit in the future. The author retains the right to sell reprint rights elsewhere, as well as the right to republish the article as they see fit, including internationally and in digital format. (Though it is common for publications to acquire digital rights these days, of course.) I remember getting the writers guidelines long ago from The Rainbow, and FNAS rights were part of it. I don't remember if others were specified, but if Lonnie was able to negotiate a deal then they obviously had some sort of Reprint rights as well. With Hot CoCo, there's just no record of those rights, but from the authors I've spoken to, it wasn't an "all rights" deal. The original authors can still authorize reprints to other formats, apparently. (Not a lawyer. Don't own the rights myself. Talk to appropriate counsel. Etc.)

As such, an enterprising individual COULD contact those authors, gather up Reprint Rights through some form of arrangement, and then reprint the articles in a NEW format. An "originally appeared in" notice would probably be required or appropriate, but as long as it wasn't the same format and presentation as the original publication, it should be good if the original author a) still owns those rights and b) authorizes the publication. (Again with the "consult appropriate legal council before proceeding, IMHO, etc.")

CoCo software is a slightly more straight forward. In most instances, software companies buy ALL rights to the original author's creations. There may have been limited distribution deals, but in most cases, the ownership is going to be pretty clear. Either the original author still owns all the rights, or the company that bought those rights still owns them. Tracking down those owners could be challenging, though. Some would also have some form of reversion clause, so that rights revert back to the author if, say, the company goes out of business or chooses to stop publishing the material. If not, and in the event the company is no longer in business, the rights would have fallen to one of its principles; the owner in a sole proprietorship, or one of the partners/officers in a partnership or corporation. Either way, those rights aren't going to expire in our lifetimes.

Confused? It can get messy pretty quick. The short version is: Copyright last Lifetime + 70. Period. Prior to that, if you're inclined to put on the Net something created by someone else, get their permission first. You might be surprised to find quite a few creators are more than willing!

Now the promised opinion part...

As I said, I'm a big believer in intellectual property. Sorry, but you don't have the right to do whatever you want with someone else's stuff. Whether you agree with what they do with their stuff or not, that's kind of the whole concept of personal property.

But that doesn't mean some changes aren't in order. I do support the notion that abandoned works, including CoCo software, should be defaulted into the public domain at some point prior to the copyright statute based on very strict criteria. Absolutely. It's insane that a creator would ignore a work that is useful to the public, or of historical significance, for 30 years and then suddenly start screaming when a few hobbyists start sharing it around. Time to move out of the 1980s there, ya know? They have every right to do it, but that doesn't make it right.

The problem is that there's no easy way to do that. To my mind, it is simply not possible and still protect creator's rights.

In particular, and here's the debate, it's been suggested 20 to 50 years as a good benchmark. If the work has not been reasonably solicited commercially in interstate commerce for more than 20 (or 30 or 50 or whatever) years, or has not been published or maintained by reasonable standards in that time, it defaults into some form of non-commercial use public domain status.

The problem with this is obvious. Let's say, for example, Bob created Superhero X for the CoCo back in 1980 and it quickly faded into obscurity. It's not published or used at all until 2008 when suddenly, Superhero X is the hottest thing ever. Hell, Spielberg options the rights, for cryin' out loud! Under the proposal above, Bob is screwed. He never sees any money or credit for his creation. Does it matter that he created it 28 years ago? Of course not. He made it, and if someone's enjoying it and making money from it, he should get compensation for his work.

But that's not going to happen with old CoCo software, now is it? Well... the chances are probably pretty slim. But that's why the copyright expiration is set where it is. After much debate (back in 1978, actually) the time line for defunct works was set. Life +70.

That built in difficulty between the two arguments is why I've done two things here at the CoCo Hut. First, I promote CoCo collecting as much as possible. Take care of your CoCos and that original software. CoCo collectors are the first (and in some cases only) line of defense against some of that stuff disappearing forever. Second, track down and encourage original authors to share their works with the CoCo Community. There are plenty of options to do so that should be quite equitable to the authors themselves.

CoCoists, don't just assume. It's not yours to redistribute, so despite what you believe, don't take it upon yourself to make a decision for someone about their rights. It's condescending and rude, you do not know better than they do. And it is illegal, of course. And authors? Don't be stingy. You know as well as anyone that there's little or no commercial value in old CoCo software and publications. Seriously. Protect your property. But work with webmasters and CoCoists around the world to get your work back into circulation.

Here's two proposals, though there are tons of other ways to do this:

Set up some sort of micropay system for your vintage CoCo creations. Easy to do with places like PayPal. For a buck or two (think iTunes model) CoCoists can snag old software. This is a particularly good option for those looking to start developing (or are developing) new software for the CoCo. Use that older stuff to build a fan and customer base. Don't think you're going to get a lot of people willing to pay $20 or $30 for old CoCo software. Or even $10 for that matter. Your competition is too tough. Old CoCo games are fun, but you can download better to your cell phone for $1.99. A buck or two is probably your best price point, and don't expect to sell many. The market isn't that big. However, at that price point, you'll get a huge number of the hardcore users supporting it (even some of those that have the originals!), AND you'll pick up some of the casual retro-gamers that pop in and out of the CoCo scene.

I'll even consider setting something like that up here if there's enough interest from authors. Takes a few buttons clicks, so it's not rocket science. (Good thing, too, cause... well... I'm an idiot.) The main goal would be to get that old software out there for people to enjoy (at a more than reasonable cost) and encourage more modern development by some of those same authors. I've maintained for ages that the CoCo Community needs some form of expanded commerce, or developers aren't going to develop for it. There's one way to encourage it and I'll be happy to help in any way I can.

Option 2 is pretty straight forward. Set up some sort of arrangement for a CoCo website to distribute it to the community for free. Doesn't have to be here (though happy to do it, of course!). There's plenty of sites that would jump at the opportunity. If you're not going to use it, you're not going develop it, and it's just a "it's mine, so there!" thing, give it up. There's just no greater gift to the entire CoCo Community than letting that old software free. It will be greatly appreciated and recognized, I assure you. Better, release the whole thing, source code, art, tools and all. Help others pick it up, develop it, and make something new out of it. You won't get monetary compensation, but I suspect there will be some hearty recognition and thanks for doing it.

Angel's Luck,

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