Ok.
This has probably been discussed before. But, is it legal to sell homebrews? I know that there has been a lengthly debate on the subject, but just need to know where all this truly stands.
Thx.
Yes, if the content is entirely yours.
It's also legal to make and sell copies of someone else's game if it's distributed under a
free software license. Most of
my work is, as is every NES game by Shiru other than his port of Alter Ego. See the GNU essay "
Selling Free Software".
If you're thinking of the lockout chip and an early judgment against Tengen, that related to patents and to how it had obtained the 10NES source code by (allegedly) defrauding the Copyright Office. The patents have since expired, and current CIC clones are based on a nonfraudulent reverse engineering of the existing lockout chips;
Sega v. Accolade and
Lexmark v. Static Control appear to govern.
Sometimes it's easier for us to answer your questions if you can think of a particular attack against the legality of selling your own homebrew. Under what legal theory did you believe it might be unlawful?
I need as much information on this issue as possible. Everything from the lockout chip situation to the legal standings of homebrew development in general.
I know Atari, when they created the 2600 had no specific requirements for licensing, but Nintendo did. I am looking to make sure that I am covered completely when I do to develop a game.
When did the patents expire? If so, then what about copyrights? Again, please clarify.
Thx.
Nintendo is not going to license your game, but that has very little to do with whether it's legal for you to make and sell your game, at this point. As tepples pointed out, the CIC patent has expired, so that's not a problem.
Copyright is your only real issue. If you made the content, you're fine. If you didn't, you should have an explicit license to sell it.
If you want info on the CIC patent, Wikipedia can get you started:
CIC (Nintendo)Quote:
The patent covering the 10NES expired on January 24, 2006, although the copyright is still in effect.
What this means, specifically, is that you can legally clone the CIC now that the patent is expired, event though you can't make an identical copy of it (the copyright has not expired). The CIClone is a legal clone.
I know Nintendo would not license my game and of course I am going to make my own content.
I am just trying to gain as much information on everything that I can regarding all this stuff, so IF any legal issues were to arise.. I'd be prepared.
If the patents have expired by the copyright has not, then how is it legal to use a clone when cloning is basically the same as copying?
Because the clone does not use copyrighted code taken from a Nintendo CIC. What is "cloned" is the effective function of the chip. A functional, legal clone would either use newly written code (i.e. not copied) or an alternative method to circumvent the CIC.
At least in the United States, judges are more likely to find noninfringement when copying is necessary for interoperability. Lexmark tried a similar lockout chip system with toner cartridges for its printers but
lost in the Sixth Circuit Court of Appeals.
EDIT: remove a citation to a case that was overturned on appeal in the monopolist's favor
phirobe wrote:
If the patents have expired by the copyright has not, then how is it legal to use a clone when cloning is basically the same as copying?
There's an important distinction made between the functional design of something and the details of its implementation.
The clone is functionally the same from the outside, but constructed differently on the inside. A copy, on the other hand, would use the same implementation too.
This is similar to why gameplay design almost never falls under copyright. The recent "Princess Rescue" 2600 game that got cease and desisted would have been fine to sell if they hadn't based every element of its graphics and music on Super Mario Bros.
Ok. After reading all of this I have come to the conclusion of the following:
As long as the content I create is of my own (graphics, sound, code, etc.), then all will be well.
I know the NES-101 rids us of the 'lock-out' chip, so naturally mostly all Homebrew/Unlicensed titles are able to be played on THAT version of the NES, but where the original NES stands WITH said 'lock-out' chip.. again, because the patents have expired makes not again for me even trying to work around THAT thing, but whatever floats your boat I guess.
Is there a market out there for this? Meaning that you would be a substancial amount of money to at least not let you die of hunger?
I've gathered this from talking to other people selling games.
A good game could sell a hundred copies a year, with an estimated profit of $20 per cart. You could make about $2000 a year from a good game. Not enough to buy a new car, but maybe enough to buy a good guitar.
Hungry? If you eat nothing but homemade spaghetti and apple juice 3 meals a day...you could cut your food expenses to $6 a day or $2190 a year. You might have to skip a few meals. So, yes, you will go hungry. Sorry.
If you can complete a polished NES game, you can probably complete a PC version of the same game and sell it on GOG or Steam. This could be through full-on emulation, through
transpilation of 6502 assembly code to C and replacement of parts of the graphics engine, or through parallel development of C and 6502 versions of the same game.
Or you can sell it for Android. Though
touch screens suck for many genres popular on NES, there do exist gaming tablets such as GPD XD, JXD S7800B, and NVIDIA SHIELD.
I've talked with a couple developers who are selling stuff, and it's clearly evident if you look at the auctions on NintendoAge, that in some cases there's more profit in selling smaller number of a limited edition, compared to selling a larger number of a normal release. Of course, you'd do both. And it means more work for the developer, you should produce something that actually is special rather than just the normal release with a number written on it. I see it as a win-win, collectors want it and value it (it's more likely than not to go up in resale value), and developers certainly deserve to get paid whatever extra they can get. Obviously that doesn't change the economics of it much, for the massive amount of time it can take. No one is going to make a living off of it, but anything would help.
Quote:
Special limited edition
I agree. I've seen games, that I will generously call "mediocre" go for over $300 a piece.
Why, you might ask?
1. Very limited collectors edition
2. Packaging that was fan- freaking - tastic