Last Updated on January 18, 2025 by Dave Farquhar
Into the Vertical Blank asked a good question this week: In the wake of Atari’s purchase of the Intellivision-associated intellectual property, should Atari control essentially all of the pre-Nintendo classic video game market? Of course, one company controlling such a large part of our history could be problematic. But I can also think of a precedent by looking back at my father’s generation.
Atari shouldn’t own retro because retro should be free!
The major objection that I am seeing to Atari essentially owning the second generation retro console and games market is that the ROMs should be free and that Atari’s ownership of them hurts the public domain.
I agree that copyright law needs to be revised and that current copyright terms are entirely too long. But Congress isn’t going to listen to a bunch of retro hobbyists on this issue. I wrote my representative about this way back in 2005, and I received a canned response. I don’t think I would even get a canned response from my current representative.
Will artificial intelligence save retro from the ghost of Sonny Bono?
We can thank another representative, Sonny Bono, for the current state of copyright. Sonny Bono’s claim to fame was being Cher’s husband and bandmate in the 1960s pop music duo Sonny & Cher. His idea of a compromise was to make copyrights last forever minus one day. That was his response when he was told that you can’t make copyrights last forever.
Sonny Bono didn’t live long enough to see the copyright act that bears his name pass. But it extended copyrights to, effectively, 95 years. And that’s why the newest music that automatically entered the public domain automatically is big band music from the late 1920s. Realistically, the first video game cartridges to enter the public domain will happen sometime around 2072. The majority of us who care about late 70s console games probably won’t be alive by then.
If something is going to change this situation, it will be artificial intelligence. The artificial intelligence companies know that they cannot train an AI to be of much use if they are limited only to the collective sum of human knowledge circa 1928. But until/unless they get the situation changed, we have to work with what we have when it comes to current law.
Why should it be Atari who ends up owning all the retro intellectual property?
The other problem with copyrights when it comes to retro video games is the difficulty of figuring out who the current rights owner is for any particular title after decades of bankruptcies, mergers, acquisitions, and divestitures. Tracing any given family of games through all of that to figure out who owns what costs money, so there really needs to be a bit of economic incentive for someone to figure that out. So I am glad Atari is finding these rights holders and acquiring the titles. Atari has the budget to do it, and they have the distribution channels to use to commercialize the work again.
Some objections to Atari commercializing these old video game titles is based around the idea that it’s no longer okay to copy them. But the concept of abandonware has never been a legal concept.
And not all of these titles have been abandoned for as long as we assume they have. There have been examples of commercial products reusing these old games throughout the years, and I’m not just talking the Flashback consoles. One of the very first PC games I purchased was one of the Activision Action Pack CD-ROMs in 1994. It was an Atari 2600 emulator that ran under windows that included about a dozen classic Activision games. Through that purchase, I rediscovered Keystone Kapers and Barnstorming. I also may have downloaded a number of non-Activision Atari cartridge images and play those in Activision’s emulator as well. Okay, I definitely did that. It wasn’t the first time.
And with digital distribution, it would be possible now to distribute many more titles than Activision was distributing in 1994. Atari could bundle them or sell them individually at a reasonable price and turn a nice profit. It would also open the games up to an audience that doesn’t necessarily know what an emulator is and wouldn’t know how to go about downloading one and setting it up.
A precedent from an earlier generation
My dad’s generation didn’t have video games. They had pinball and some other electromechanical games, but nothing like the video games we grew up with, and having a pinball machine at home would have been unusual.
For a kid growing up in the 1940s and 1950s near Philadelphia, the thing he wanted instead of an Atari was a model train. I write about those pretty much every Thursday. The market leader at the time was a company called Lionel. And in the late 1950s, the electric train market experienced a crash somewhat similar to the video game crash of 1983. The decline wasn’t quite as sudden or as dramatic, but the three major players in that market went from having a license to print money to struggling within a relatively short length of time. Lionel was on top of the world in 1956, and bankrupt by 1968.
Lionel’s story is long and complicated a lot like Atari’s. It changed hands several times over the years like Atari, even ending up being owned by Roy Cohn for a while. Yes, that Roy Cohn. And it ended up owning its major competitors’ intellectual property like Atari.
Also like Atari, Lionel experienced a resurgence as the generation who grew up with its trains reached middle age and sought to recapture something from their younger years. Modern Lionel always was a shadow of what it was during its peak, but it did have a nice run for a good 20 years capitalizing on nostalgia around its brand name and that of its most famous rival, American Flyer. And if there was an Intellivision of the 1950s, American Flyer is totally it.
So I see a lot of parallels between Lionel and Atari. I expect in 20 years, Atari will not be doing as well financially as they are right now. But I also think they can reintroduce a lot of old products, distribute it in digital form, and make a lot of money and make a lot of people happy over the next 20 years. And I don’t see that as a bad thing.
We want people to like what we like
Most of us like it when other people like the same things we like. And not everyone has the skills to set up an emulator. This week, someone at work reminded me of this when they asked me to rate the difficulty of setting up a particular integration. I looked at it and said it required pasting some API keys into a short script and then pasting that script into three different places in the other product’s user interface. I rated it a four on a scale of 1 to 10. The response I got back was that it sounded more like a six or an 8 for someone not named Dave.
If I am curious about a system, I can go and find an emulator for it and find some software to run in it and be playing whatever game I want in 5 to 10 minutes, or 15 if something goes wrong. But I have friends who don’t find that as easy as you or I do.
Nintendo made it easy to play a selection of their old games on their modern consoles. And they’ve been doing this long enough that arguably, some of those consoles are retro themselves now. That has really helped to keep interest in those old Nintendo games alive. If Atari finds ways to make it just as easy to play second-generation video games and does it on a variety of platforms, and they keep the price affordable, I see all of those as good things.
Someone needs to be commercializing these old titles, and Atari is in the best position to do it. So I don’t have a problem with Atari owning Intellivision and other classic retro game properties. I’m glad they’re taking this up.
And in a way, maybe this is a bit of payback for Intellivision’s legally questionable Atari 2600 emulator.
David Farquhar is a computer security professional, entrepreneur, and author. He has written professionally about computers since 1991, so he was writing about retro computers when they were still new. He has been working in IT professionally since 1994 and has specialized in vulnerability management since 2013. He holds Security+ and CISSP certifications. Today he blogs five times a week, mostly about retro computers and retro gaming covering the time period from 1975 to 2000.