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Comment by Flux159 | Hacker News Reader

This seems like it's only going to get worse many games need online services to function at all. Super Mario Maker as mentioned in the post is one of them, but there are countless others on 3DS and PC that won't function properly.

Ideally it would be possible to archive the games (like ROMs or what the Internet Archive does for websites and files) and also the server / database so that the games could be playable in the future, but I doubt that Nintendo or any larger publisher would do that.

I wonder if there's a solution for this in the short term or if these games and their data would be lost forever.

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I wish there was some way to tie it to copyright where if you want to lock the rights up, you have to provide the game in a playable form at a reasonable price. I’ve seen proposals which would implement that as a kind orphan works tax with a threshold so a small indie game wouldn’t be expected to provide unlimited support.

A tax small enough to not harm indie publishers is almost tautologically unlikely to affect big publishers at all. The incentives created by fines and taxes are greatly overestimated. For something like this to work, it needs to be achievable without the continued cooperation or even existence of the original business

To the opposite, the tax should kick in if the operation is large enough. If your revenue from the game exceeds $10M, you should do some minimal continuity work. If it exceeds $100M, you should do much more serious continuity work.

So you'd like to incentivise more obfuscation of revenue to boot?

I think an effective remedy for this kind of situation can't just be fiscal, we need requirements to publish adequate technical specifications and strong IP carveouts to make it likely to move the needle. Forcing companies to maintain continuous support is a non-starter. We should instead focus on enabling unofficial support from outside the companies, and remove legal threats from those who choose to do so

Obfuscation of revenue is a really bad idea, all the way to a federal criminal investigation.

The idea is that the continuity requirements should not be onerous, given the revenue, say, less than 1% of it, "a good problem to have".

Publishing a reasonable spec would be a part of that.

Pretty sure that hasn't stopped Hollywood accounting for the last century, and I see no reason why EA can't pull off the same things that Warner Brothers has been doing.

Hollywood accounting is about hiding profit by making it look like all of the revenue was used for expenses. Hiding all of your revenue outright is a different ballgame and if it were easy to do legally Nintendo wouldn't be paying billions in taxes on it already.

This is unrelated to the thread. The point was obfuscation of the fact that the profit is from a specific copyrighted work. I.e. selling 600 versions of a game each with a different default skin hides no income from tax authorities.

You're referencing profit instead of revenue, which the thread was referring to. Again, you can't hide revenue as easily. Splitting it up 600 ways doesn't solve the problem that game XYZ sold 10 million copies from the 600 subsidiary distributors. Nintendo could hide the profit that way, saying the subsidiaries took 100% of the revenue as costs, but the total revenue can't be hidden. It's either a reported sale or not, there's not really a way to fudge that.

Personally, I think we should consider making legal IP protection opt-in. In other words, with a product like this you should provide a way to remove the protection to the Library of Congress, for example. If you fail to provide this, then you cannot use the courts to enforce copyright/patent/etc.

Imagine if the tax was, for the sake of argument, based on the inflation-adjusted lifetime revenue over $500k and had different rates based on the total sales, each increasing over time so the cost of locking up a 20 year old game is more than they ever made for it. I don’t see how what wouldn’t have a strong incentive to release things they aren’t actively commercializing.

I don’t know why this would be a tax?

If you’re going to go down this path, why wouldn’t you just require that the title needs to be purchasable on a primary market and usable on hardware/software that is currently supported in order for a copyright to be enforceable.

If I can’t purchase and enjoy a copyrighted work legally, the copyright is unenforceable.

In response to sibling comments, I don’t know why you’d do a carve out for small and indie game studios. If you’re not actively offering your copyrighted content for sale in a primary market, it shouldn’t matter whether you are a big studio are a small studio.

Let society take over archiving and sharing your work.

Artificial scarcity is a scourge but I think for some works, say where you only want them to be available in a specific time and place, then perhaps as the author of that work you have a right to enforce that, at least to the extent that others shouldn’t be able to say record a live performance and then sell it with some kind of rights later.

All that is to say I think it’s slightly more complex than what can be contained in a single HN comment but agree with you in principle.

This sounds like a feature rather than a bug to me, to be honest. If there's an official recording of said live public performance that is available, then copyright holds and third parties wouldn't be able to record and redistribute. OTOH if there is no official recording available, then I would argue that it is in the public interest to allow third party recordings to legally circulate, since otherwise that particular performance would just be lost altogether.

If artists truly want their performance to be "in the moment" with no way for anyone else to see it, they can arrange for private performances where the audience can be bound by a contract above and beyond basic copyright; but I don't think we should be optimizing for this case.

I don’t disagree.

I am attempting to say a person shouldn’t be able to record someone else’s performance and distribute it for profit or post it on a streaming service and profit from the ads.

Because taxes are how we typically set incentives and the government is well-configured to use them. This is common in other contexts: for example, in many cities leaving your property vacant will trigger additional taxes because they don’t want empty buildings impacting the surrounding neighborhoods.

> If I can’t purchase and enjoy a copyrighted work legally, the copyright is unenforceable.

That’s not true in the United States, and if it were you’d still have the problem this thread is discussing where you need the servers (or DRM systems, etc.), which is why I’d like to change the incentives so it’s cheaper to release things you no longer intend to use even if they weren’t directly distributed to users.

The indie carve out reflects that there is some real cost here (packaging things up, vetting the rights for a release, etc.) If you have an old game which never went big, you don’t want a solo developer getting hit with a bill they can’t afford because they didn’t back up everything well or life happened and some planned work took longer than they thought it would. Again, remember this proposal is for a legal mechanism to compel action and you want to think about how it could impact people with the least resources.

OP is saying that this is how things should be, not how things are.

The government is well-configured to use copyright as a stick, too. Literally the only reason why copyright - an artificially imposed monopoly - works at all is because the government enforces it, and so it gets to set the terms for eligibility. The legal mechanism here would be a new law, same as your tax proposal, so I fail to see the difference.

As far as needing servers to continue running - the community is generally quite capable of doing that so long as there are no legal roadblocks to it like DMCA and CFAA. It is likely to provide a better experience too, compared to what would essentially be compelled support from the original developer, which is virtually guaranteed to be the least they can get away with to legally dodge the tax - e.g. spinning up one underpowered server that can only serve very few users at a time.

It is also unclear how such compelled services would interact with game updates. Is the server required to support all past versions of the game going all the way back to the original release? For competitive multiplayer games especially this may not feasible for good reasons. OTOH if you only require that they support the most recent update, this opens the possibility of the developer simply shipping an "update" that disables as many features as they can get away with once the game is on life support - e.g. removing multiplayer entirely if possible, or at least making it as crippled as they can get away with; and then providing support only for that crippled version.

I suppose it's so IP holders will have to have an office and revenue in the market it intends to exercise rights, than just outsourcing it to a lawyer and having 12 copies/year at $1k each compliance sales?

Japanese IP holders exercising IP rights solely in moral grounds in markets they have no intention or ability to enter had been a source of frustration to some. Requiring substantial economical involvement sure is one way to force it.

So if you can’t find a distributor for your copyrighted work or you’re not capable of distributing it yourself, you lose the copyright? You’re compelled to sell your work? Sounds pretty backwards to me.

The DMCA allows reverse engineering of copy-protected code for abandonware. As a copyright holder you’re not necessarily obligated to maintain working game services, but if you sell a multiplayer game and abandon it, it’s basically free rein for others to make it work again.

To clarify, the DMCA does no such thing. The exemptions you refer to are the result of the Librarian of Congress exercising a statutory “fail-safe” role to specify circumstances that the (otherwise very broad) anti-circumvention provisions in the DMCA will be construed not to apply to.

https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pd...

Furthermore, these exemptions only cover unlocking DRM - not providing the unlock tools, which is illegal in all circumstances.

Yes, you are really expected to reverse-engineer and decrypt everything yourself. DMCA 1201 is a really fucking stupid law.

It's also important to note that exemptions granted under this mechanism expire after 3 years unless renewed. When the exemption expires the exempted activity becomes an infringing activity again.

> if you sell a multiplayer game and abandon it, it’s basically free rein for others to make it work again.

The more functionality there is on the server (common for anti-piracy/cheating) the less likely that is to happen. I’d like to see that change, reflecting that the idea behind things like the DMCS preservation exceptions and copyright expiring is contributing to the public commons and that’s different for running code than earlier forms of media.

So we can play ut24k online again? Someone could setup a master server list?

No. The exemption only applies to circumventing access controls related to authentication servers that gate access to single player modes. Duplicating online multiplayer functionality (which was proposed and rejected because of industry opposition) is not in scope of the exemption so would not be protected against liability.

https://www.eff.org/deeplinks/2015/10/victory-users-libraria...

> tie it to copyright where if you want to lock the rights up, you have to provide the game in a playable form

this or they lose the copyright.

The website that posted this post (Pretendo) is doing just this, sort of. They are working to RE the 3DS and WiiU online capabilities.

Seeing the progress of Xlink Kai I have faith they will succeed.

I hope one day there will be a precedent set for companies to open source the servers they are shutting down.

I disagree that it will inevitably get worse, with the exception of games that explicitly games as a service.

As the article points out, this whole system was basically a result of the infancy of online game services, especially for Nintendo. It's a quirky result of an architecture that is much less centralized than modern console game services.

If you ask me, it's very unlikely that Nintendo will ever shut down the Switch eShop, because I don't think the Switch eShop will be replaced when its successor launches. It will be much more like the PS4 to PS5 transition where your account information and digital library stays the same.

(By the way, the solution you are talking about is what the blog authors are working on)

I made a top-level comment before I saw yours wondering how they’ll handle Switch online services.

And I think you’re right. If they have any sense, and it generally seems like Nintendo does, they’ll keep the Switch eshop running indefinitely. Hopefully they do the same with the other backend services supporting the Switch, but that is more questionable. They really should though.

> Super Mario Maker

What happens concretely if you start Super Mario Maker while the 3DS console is offline? Can't you play it on a plane?

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