Question about legal framework surrounding console games

[Avatar of Justice]

I saw this over on Kotaku: http://kotaku.com/5070265/the-ps2-is-now-officially-an-open-platform#c8605780

Basically, Sony is now letting whoever wants to release a PS2 game release a PS2 game as they choose. Ok, great. But how were they stopping them? Legally? What specific laws are on the books that stop me from releasing a PS2 game? Is it all just a matter of having control of the dev kits? People on Kotaku mention that even if the PS2 is "open" you still have to buy the dev kit, just not the license. What is the legal basis of having to get a "license" to release console software? I would have expected there to be anti-trust legislation that would prevent console companies from controlling the software released for their platform like this. Note, I'm not talking about practical things like controlling the disc manufacturing plants or whatever. Just purely the legal basis.

[zircon]

Why would there be anti-trust legislation? If Sony invented something, and they own all the rights, they can control it entirely. Trusts involve multiple companies or monopolies, and that doesn't apply here.

[Kanthos]

I think the OP is suggesting that there's a trust between Sony and EA, Blizzard, Mythic, etc, and that similar trusts exist between Nintendo and Wii/DS game shops and Microsoft and Xbox360 game shops.

[yangfeili]

I'm curious about this as well, seeing as there were those "unlicensed" Tengen games actually be sold in stores back during the NES era. I distinctly remember buying the Tengen Pac-Man at Target when I was a kid.

[djpretzel]

http://en.wikipedia.org/wiki/Color_Dreams

These guys did what you're suggesting, back in the day... it involves reverse engineering because the platforms aren't open, and have protection mechanisms that require going through Sony, Nintendo, Microsoft, etc.

[Avatar of Justice]

Why would there be anti-trust legislation? If Sony invented something, and they own all the rights, they can control it entirely. Trusts involve multiple companies or monopolies, and that doesn't apply here.

I just don't get why Sony gets to tell people what they get to put on the hardware. They made the hardware, why do they need to be involved anymore in the process? It's like if my Buick only accepted Exxon gasoline or something. Once I pay for a PS2 I should be allowed to do whatever I want to with it, instead of Sony arbitrarily deciding who can make software for it and who can't which is a kind of trust as yangfelli said. You don't see Intel telling you what software can run on your PC or Microsoft for that matter.

Still wondering what law says Sony can dictate things like this when I would think there is anti-trust legislation that would go against it.

[Liontamer]

Why would there be anti-trust legislation? If Sony invented something, and they own all the rights, they can control it entirely. Trusts involve multiple companies or monopolies, and that doesn't apply here.

ROFL. Yeah, you just completely forgot the point of patents and the protection of intellectual property. You're internet logic-ing wrong.

[XZero]

There doesn't seem to be a federal case on point here. Nonetheless, I believe that the "license" is not so much a legal necessity as an evidentiary requirement. In property law, with respect to the conveyance of real property, I can see a valid analogy between deeds and title and the issue here.

A deed is a document which purports to convey land from one party to another. Title is the legal ownership a recipient gets pursuant to the conveyance. To that end, if A conveys a parcel of land to B, the deed functions as legal evidence of the conveyance, but B's receipt of the deed means nothing absent a conveyance of title to the parcel in question.

Here, Sony is conveying to the game producing companies two things. It gives them the software through which a PS2-compatible game can be made, and a license, the evidentiary equivalent of the deed. The license is indicative of the right to use the technology. Absent the evidence of a legal conveyance, i.e. the license, a company using the software does not have a legal interest in using it. The software was not conveyed to them properly, and Sony can sue them under other Intellectual Property laws.

With respect to the issue on point, Sony's removal of the evidentiary requirement is indicative of their forfeiture of the right to pursue civil claims against those who illegally used the technology to which they once controlled the right. Now, based on the article, anyone who acquires the software can legally create and distribute games compatible with the PS2, as license (evidence of the legal transfer) is no longer necessary.

In short, the legal basis is simply that Sony is the owner of the software (they, and they ALONE legally control the IP rights to that software). License is evidence of their conveyance to others of the right to use that software.

[Vivi22]

I just don't get why Sony gets to tell people what they get to put on the hardware.

Well for starters, most of their money comes from licensing games. If they can't license the games to be on their system, they don't get revenue on every copy sold and you don't get a system to begin with aside from the PC.

Second, licensing helps insure at least some semblance of quality, and helps to avoid over saturating the market with poorly made titles. Yeah poorly made titles still come out, but not as many as if every kid with some basic programming knowledge decided he wanted to make a game.

All that and what XZero said.

[zircon]

I just don't get why Sony gets to tell people what they get to put on the hardware. They made the hardware, why do they need to be involved anymore in the process? It's like if my Buick only accepted Exxon gasoline or something.

Well, ANY car manufacturer could do something like that. But think about it... why would they? They would lose TONS of business. No one would want to buy a car that can only use one brand of gas. This is the beauty of a free market system. The only problem would be if the car company was a monopoly. That would be analogous to the situation Microsoft has been in previously, where they could mandate that their operating systems come pre-installed with Internet Explorer etc.

Once I pay for a PS2 I should be allowed to do whatever I want to with it, instead of Sony arbitrarily deciding who can make software for it and who can't which is a kind of trust as yangfelli said. You don't see Intel telling you what software can run on your PC or Microsoft for that matter.

No, you shouldn't be able to do whatever you want, it's not your design nor is it your intellectual property. As Larry pointed out, this is why we HAVE patents to begin with. The reason Intel can't dictate what software people can and can't develop is because they are essentially a monopoly. That is where trust issues arise. Same goes for Microsoft (though they've tried, and been hit with anti-trust legislation). Sony is not even close to a monopoly in video games, so if they choose to close their console, that's their decision and the market will deal with it. Meanwhile, the Xbox is dominating, due in part to XNA and the very open stream of development from the indie community.

Still wondering what law says Sony can dictate things like this when I would think there is anti-trust legislation that would go against it.

The entire point of patent law is to give people a virtual monopoly over inventions and designs.

[Avatar of Justice]

The entire point of patent law is to give people a virtual monopoly over inventions and designs.

Right, that's fine, I understand that and don't have a problem with it. No one can make a PS2 until the patents expire. Ok. But what's that got to do with controlling the software? Do they just have their copy protection patented and that's it? Were I to reverse engineer their copy protection (which is legal as long as I don't go request the patent documents like Atari did back in the day) and make some games....nevermind. That'd be breaking the DMCA. Surely there was something before the DMCA that let Sony do this. I still am not getting what let's Sony say "This is an unlicensed game. You can't do that," if say the system had no copy protection.

[Avatar of Justice]

Alright, so according to some dude on Slashdot, Sony has signing keys that require each game to be digitally signed before the PS2 will run it. I suspect that before the DMCA was passed, one could've simply reverse engineered their way around it and as long as it was true reverse engineering, Sony would just have to eat it. Since Sony can design their hardware however they want, they can certainly design it to require only signed code to run and since it is a copy-protection mechanism, you can't circumvent it or else be in violation of the DMCA.

Pondering what I know about how the law works, if Sony (or Nintendo or Microsoft) were being huge dicks about what games got made, licensed, and released a wronged company could definetly sue them for under laws laid out in anti-trust legislation. Like say if Nintendo had continued its draconian control of the game market like it did in the NES's day. A good clear example of this is how Nintendo required 3rd party devs to develop ONLY for Nintendo since Nintendo controlled the cartridge manufacturing and lock-out chip manufacturing. However, with the console market being a lot more competitive that sort of strategy is no longer viable and 3rd party development companies have enough muscle now to take on any hardware maker that gave them shit. If Nintendo turns your game down, you can just go to Sony or vice-versa.

Basically, copy protection and licensing control on your console doesn't make you a trust by itself it's all about how much of a dick you are in exploiting tools like that that make you a dick. In spirit, I disagree with the idea that Sony can continue to control their hardware to this extent once people have bought it. I don't disagree with their patent rights or anything, but unless I'm actually making PS2's hardware patents should not be uninvolved. However, I do sympathize with Sony to the extent that they have invested lots of R&D cash into each console and that they and most major 3rd party game companies have a vested interest in Sony being able to use copy-protection in order to protect and steward the Playstation brand.

EDIT: New question. Does Sony/Microsoft/Nintendo get paid a static license fee or do they get paid a license fee for each copy sold? This would make them want to only license top-selling games since they only allow a certain number of games released per year.

[zircon]

Well, hey, I'm not saying I AGREE with the practices of Sony/MS... just talking about their legal rights (or lack thereof.) I think MS currently has the right idea with XBLA, XNA and community games. Give indie devs the tools to produce cool games and distribute to millions. See what rises to the top, and publish the cream of the crop.

[Vivi22]

Well, hey, I'm not saying I AGREE with the practices of Sony/MS... just talking about their legal rights (or lack thereof.) I think MS currently has the right idea with XBLA, XNA and community games. Give indie devs the tools to produce cool games and distribute to millions. See what rises to the top, and publish the cream of the crop.

Only problem is that getting a game on XBLA is insanely difficult, even for some fairly well established indie developers. Apparently the approval process is an absolute bitch, to the point where it's an almost insurmountable obstacle for indie developers with no publisher to handle it for them. In fact, most indie developers trying to get a game on there are forced to turn to publishers, which defeats the purpose of a distribution system meant to give smaller developers with no publisher backing an outlet to release their game and have most of the profit go to them.

It's a nice idea in theory, and I fully understand the need for some quality control with it, but the system is inherently flawed the way it's run now.

[zircon]

I know it's hard to get on XBLA, but I'm talking about the NEW thing they are rolling out. They have a $100 dev package (XNA) and a system that allows any game creator to submit their game to the Xbox Game Creators' Club for evaluation. The games which are approved by fellow developers will go on to Community Games, a new marketplace/distribution channel for Live. The best of THOSE go on to XBLA.

[Vivi22]

I wasn't aware of that and it sounds like a good idea actually. It's probably their attempt to make it all a little more accessible, so I'll give them credit for that. It's certainly taken long enough for them to do something about it, but at least they aren't just leaving it the way it is.