Arcade Kit Seller Applies for MAME Trademark [updated] 829
"Subject: I would hope that you post this to correct your misstated comments on slash dot
Date: Mon, 21 Feb 2005 01:27:43 -0800
Like most things that are spread by rumor, the facts about me, UltraCade Technologies, and the M.A.M.E. emulation system are quite distorted. I will try and educate anyone who cares to listen about the reality of our marketplace and what we are doing and what we are not. Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not legally be obtained. What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.
I have been working on emulation technology since the mid 80's when I did work on an emulation project in college. In 1994, while working on games for companies like Sega and Williams, we developed an emulation of the arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In 1996, we started the Lucky 8 project which turned into the UltraCade project. In 1998 we were one of the first companies to acquire the rights to classic arcade games from various publishers. We have licensed games from several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible Technologies, Midway, Atari and more. We have started several projects and built prototypes for companies like Sega, based on technology that was licensed from authors from the emulation community. We have licensed technology from many of the communities programmers, paying them to use their code in our products and demonstrations. We have been the leader of the retro arcade movement, and have invested millions of dollars creating a market for retro games. UltraCade was the first successful multi-game arcade machine combining many of the old classics. We further enhanced the market by creating Arcade Legends, our consumer version of the UltraCade product. We have also paid hundreds of thousands of dollars in licensing fees to have the right to sell our games.
In the past couple of years, there has been a huge wave of resellers competing with our UltraCade and Arcade Legends products. They build a similar style cabinet, install a PC in the machine, load M.A.M.E., and sell it for a very low price. Lower than we could ever offer our machines for sale. How? Quite Simple. They profit by stealing others work. If you look at the web sites, and read the eBay ads they offer machines that "Play over 4,000 Classic Arcade Games" They then try and skirt the law by pretending that they are not promoting piracy of these same 4,000 games with statements like "we don't load the ROMs" but of course, almost all of them do. The others that don't, they provide you with an instruction sheet with a link to several web sites where you can illegally download the ROMs, or provide you with the contact information for a CD/DVD duplication house that will sell you a set of ROMs for all 4,000 games for less than $200. Would anyone really buy this arcade machine if they knew that there was no legal way for them to run over 99% of the games that they were promised, I don't think so, and if you really look at this without emotion, I'm sure you would agree. These companies are simply selling the promise of thousands of games on a machine that can not possibly run them legally. I sometimes hear the argument, "well, I could go on eBay and buy up all of these games and then run it", and while plausible, it certainly would not be anywhere near cost effective, and again, if the customer knew that to legally operate these games, they have to spend thousands of dollars buying legal ROMs I seriously doubt that they would consider purchasing a M.A.M.E. machine. Anyone reading this email thread is an intelligent person, and if they put emotions aside, they will realize that what we are saying about selling M.A.M.E. machines and the promise of getting 4,000 games for the average consumer can't possibly happen. Unlike most of you reading this, the average consumer looking to buy a machine for their game room has no idea how emulation works, or what is legal and illegal to do. To them, they read an advertisement on a website or on eBay and compare our product with 50 games or an ad for a machine that promises thousands of games, with the promise of instructions about how to obtain those games. Of course, in this skewed environment the average consumer would gravitate towards the thousands of games machine, not realizing that the software and the games are unlicensed and illegal to play. Most consumers who are pointed at a web site selling a 7 DVD set of ROMs have no idea that this is an act of piracy, they were simply instructed to do this by the person selling them their arcade cabinet, and told this is how you get the games.
Now that we have attempted to take legal recourse to prevent illegal competition, the same people, who steal the work of the M.A.M.E. authors, and then profit by selling machines that have no value without the pirated games being made available, turn around and cry foul when we call them on their ways. They run to the M.A.M.E. discussion forums and spread rumors about UltraCade suing the authors of M.A.M.E. or stealing the M.A.M.E. engine. I'm amazed at the response of the community, a community that is being whipped into action by the same people who are stealing and profiting from them and they're efforts. Many people have reacted with hate mail without even considering to look at the facts of the situation, or to realize who is spreading the rumors. They are being spread by those who wish to profit by selling unlicensed games.
The simple fact is that we are attempting to stop the tide of illegal arcade machines, and the promotion of unlicensed games. The M.A.M.E. platform, while a technical marvel, consists of many violations of copyrights and trademarks. The authors have always stated in the documentation that it was not put into the public domain to steal from the game authors or publishers, and they have always been hands off about how to obtain the ROMs. They have also clearly stated that it is not to be used for commercial gains. A majority of the publishers who own the copyrighted material have not paid much attention to this marketplace, as until recently it has not had a huge commercial impact. But now, there are websites and eBay sellers selling machines that directly compete with legitimate publishers like us who publish games from Capcom, Taito, Midway, Atari and others, or publishers like Namco that publish Ms. Pac-Man/Galaga or the Donkey Kong/Mario Bros. machines.
Of the many thousands of games that M.A.M.E. supports, only a minute fraction of them can legally be played on a M.A.M.E. equipped machine, and many can not. There are many fallacies about the legality of owning ROMs and how you can play the game. Many people claim that they have a board set and therefore they can download as many ROMs as they like. The law is very strict. You can transfer the image from the actual original ROM chips, which you legally own, to another piece of hardware, provided that you actually transfer the code from the chips. Just having a board sitting around, and saying I have the right to play it is not the case. Many people point to StarROMs and say that they can then sell the games with the ROMs installed. This is not the case either. StarROMs license prohibits the resale of the game licenses, and only the end user can purchase these ROM images, resellers can not. Our market is further plagued by the rash of 4 in 1, 9 in 1, 24 in 1 39 in 1 and the new 300 in 1 "multicade" boards. These boards come from Taiwan and Hong Kong and contain illegal copies of the ROMs of several games.
This is a complex case amongst companies that are trying to make it about UltraCade stealing something from the M.A.M.E. team. That is not what this is about. This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market by capitalizing on unlicensed games and selling products that only have value when coupled with illegally obtained games. Our application towards a trademark is to simply prevent anyone from commercially marketing an illegal product, nothing more. There have been no lawsuits filed against any of the M.A.M.E. authors, and there have been no claims towards the open source engine, nor will there be We are simply protecting our commercial market, and nothing more. We have no interest in the hobby community. We have no interest in the open source project. Our goal is to simply stop the rampant piracy in our marketplace, and we will use every means at our disposal to do so.
I welcome open discussions about this situation, and will respond to legitimate communications or questions.
-David R. Foley
---------------------------------------------------------------------------- ---------------------------------------------------------
David R. Foley
UltraCade Technologies"
Re:Good for him (Score:3, Insightful)
Oh, fuck them. (Score:5, Insightful)
As a former ZD employee, I've seen this far too much in emulation, but it's never gone to this degree. This is a very evil way to get a point across, and I really hope, if this actually happens, that a few makers of these arcade games out and sue Ultracade for pulling this shit.
Why the hell would you take out the people who made your bread and butter? All that's going to happen is MAME is going to come out under a different name and be designed in such a way that it won't be compatible with Ultracade arcade boxes. You pull shit like this and alienate your users and fellow authors, you get burned. Ask Marat Fayzullin what I'm talking about.
Aren't fraud and perjury illegal? (Score:2, Insightful)
This piece of shit should be charged with both and sent to the federal pound-me-in-the-ass prison where he belongs.
Re:Uhh. (Score:5, Insightful)
In this case, the topic is trademark law. Trademarks are lost if the holder allows the name to become a generic term (like kleenex, for example). I'm not sure if you have to be the first person to use a term in a particular domain to trademark it, but I imagine you do. (The concept of "prior art" refers to patents only.)
The trade mark hasn't been approved yet. (Score:5, Insightful)
zyro out.
Re:TM Law (Score:2, Insightful)
Quickest way to make your business tank (Score:2, Insightful)
What's even more intriguing about all of this though is that Ultracade almost certainly uses the mame core in it's software. It was recently discovered that the same bugs in mame were found in Ultracade. If anyone ever takes the initiative to reverse engineer the code and prove this, the MAME team will have grounds to sue him for everything he's got as Ultracade has been selling their product and making damned good money doing so for the past several years.
Let the litigation begin...
Re:Backwards (Score:2, Insightful)
Copyright? (Score:5, Insightful)
Copyright should apply (Score:5, Insightful)
In other words: if he succeeds in getting the trademark on Mame, he could end up with a registered logo that he's at risk of being sued for if he actually uses it in public.
(It'd almost be funny to see him being sued for using it in his first 'cease and decist' letter)
That having been said, sending the USPTO an email about this application with a well-chosen URL from the WayBack machine might torpedo this application (at least I hope so -- IANAL)
__________________
Btw: With SCOXE at risk of being delisted, Darl McBride may be looking for somewhere else to be a public puncing bag.
Copyrighted (Score:5, Insightful)
Isn't that enough reason to deny Ultracade the trademark? This is just like the guy that tried to steal the Linux trademark from Linus.
double standard..... (Score:1, Insightful)
but when it comes to Linux, we (./ers) want to abolish IP laws, but when it comes to MAME, we want them to be enforced?
Maybe I'm not seeing the entire picture here.....
but if this about trademark, then I'm all for making Ultracade an example.
Anyone remember the Linux trademark? (Score:5, Insightful)
What this shows us is that the fact that a product name exists and is in wide prior use makes absolutely no difference to the idiots at the USPTO. They can't be bothered to do real research. Their attitude is that they should approve everything and let things be sorted out in drawn out expensive court battles. The whole organization should be burned and razed.
One thing this reminded me of is that, in order to actually be assigned a trademark, you have to state under penalty of perjury that you are the owner and first user of the mark and that you are not aware of anyone else using this mark or name. The sleazy guy in this case (read his resume, which someone else linked to, the fact that he has worked in the music industry doesn't help his case much) appears to have submitted someone elses already copyrighted work in his submission. I'm wondering if he even had the intelligence to make his own copy of the image. Looking at the one on the page linked from this article, it's a bit hard to tell if he just yanked a mame image from somewhere and slapped a TM on it or just drew his own. Unfortunately, it looks like he did recreate it with colored pencil or markers and then scanned it. But maybe not. In any case, the original is obviously still copyright the original creator. If he submitted it and also claimed that he was not aware of anyone already using it, then he's perjured himself. Sadly, none of these sleezes seem to face criminal charges from that sort of thing anymore. It should make decent legal ammunition though if the USPTO does what I expect them to do and grants this trademark.
Well, it's perfectly obvious what he's attempting (Score:5, Insightful)
People are starting to realize that he has a crap product that is exorbitantly expensive.
I have some strong ties in the arcade business (operation and distribution) as well as good friends in the emulation community.
When you can get a used DDR machine for less money than one of these things AND bring in more, why bother?
The Ultracade has been pushed on arcades by distributors because they get AMAZING deals on it and make LOTS of markup when they actually sell units to arcades. (A lot of distributors usually shy away from this sort of practice with most games because it's more profitable to "rent" a game out to an arcade and take a cut of the game intake. They do all the service of the machine (including coin emptying) so they can track an unmodified count and it's a good system. They can sell off old machines that aren't bringing in money and keep most of the money IN the business rather than moving through it.) The problem for the arcades is that they're pretty much grabbed by the balls. Their businesses are for the most part dying and old games still bring in enough draw to warrant keeping them around...but they can't devote all the space to multiple cabinets so they just get one of these puppies....
I wish our arcade industry was more like in Asia..where everyone gets the newest thing and you have multiple level/floor arcades and you just keep what brings in money. Times are tough over here though.
Anyway, this guy is just trying to solidify his business and since he has a crap business model, he's trying to bully out the competition while the opportunity to do so is still there. I hope people fight him tooth and nail and his company goes bankrupt.
Fax, write or call his lawyer (Score:2, Insightful)
Lee Hagelshaw (Attorney of record)
LEE HAGELSHAW
LEE HAGELSHAW OF TECH LAW
350 TOWNSEND STREET SUITE 406
SAN FRANCISCO, CA 94107
Phone Number: (415) 615-9300
Fax Number: (415) 615-9301
Re:double standard..... (Score:3, Insightful)
Let me fill in a little of the picture. There is not one giant section of law called "IP Laws." You have 3 basic branches, copyright, patent, and trademark. You also have tradesecrets and a couple other things. Without copyright, the GNU license that allows Linux to only be distributed with access to source code would not be enforceable. There would be no requirement for anyone modifying and publishing a new Linux to publish their changes. Without copyright everything is essentially the BSD license, which now that it doesn't have the "give us credit" requirement is basically public domain with an attached disclaimer.
Now, you do often hear Slashdotters who want to repeal copyright (these are a minority) or to limit the timeframe in which a copyrights last and also limit the "automatic" elements of getting a copyright--any little peice of shit you scribble on a paper is automatically copyrighted to you, there is no need to register-- (these are a majority).
What I think you must be referring to in regards to linux is the broad notion around here that software patents should not exist. They don't in the EU, so it isn't totally some crazy ass notion only found here on Slashdot. You can't patent math and with that in hand many claim you shouldn't be able to patent programs. There are a few problems with this claim and it is widely debated, but it is crazy to say all slashdotters want it to be abolished.
Now, what I've never heard on Slashdot, though I'm sure it's been said, is that trademarks should be abolished. Trademarks protect your product in much the same way libel laws protect your reputation. Even if this company is granted a trademark trust me, there are provisions in trademark law which won't allow the company to prevent the MAME people from continuing to use the name MAME. Looking at this filing I am also very confident that if it does get accepted it will be invalidated if anything about it ever goes to court. Now, the only thing you might possibly thinking of in regards to slashdotter's hypocrisy with trademarks is that many were really angry at the way ICANN handled trademark disputes on domainnames. For instance for a while they would take away your domain if you registered fordsucks.com and Ford asked them to. This was certainly not a problem with US trademark law that slashdotter's had because it was completely ICANN who was doing it. If Ford had attempted to sue whoever ran fordsucks.com in court they would never have succeeded. Trademark law wasn't the problem, it was poor application of it by ICANN.
Re:Wait a sec (Score:3, Insightful)
Besides, if we leave the information properly filed in THEIR system, they have no excuse to be unaware of it.
Sadly, it will probably never happen, but kudos for the idea.
How about a termination on trademark claim.. (Score:3, Insightful)
So why not try to extend this rule to termination on ANY action against an author or contributor of the work, where the item at issue is part of the Open Source software product, including litigation due to the name of the original?
Without the specific restriction of the issue being PATENT infringement. Someone shouldn't be able to legally take open source stuff, sue to SHUT DOWN the original project, or try to supplant them in name, but then continue to use the product on the original license.
It's a huge Betrayal of trust, and it SHOULD result in termination of the evil company's rights, as a reasonable penalty, right?
This should be posted front page (Score:5, Insightful)
The news item: Obviously he is intending to profit from these arcade games. MAME never did that.
So I think he is no better than someone selling bootleg DVD's.
Last time I checked many of these companies who wrote these games are still about. They probably have thier own MAME cabinets to show clients the good old days.
I have a feeling this guy is in for some stick.
Re:Wait a second : He will probably get a TM...... (Score:5, Insightful)
Do you imagine you could put some huge golden arches up in front of a restaurant and not get sued because they were not the exact mathematical curve of the McCarpet ones?
What? (Score:5, Insightful)
I must, must, must go RTFM now. This seems just beyond reason - even here in the US where things like this do happen.
I have to admit that this is confusing to me ... so, by the same token, could I build a soapbox derby racer, slap on, say, a Datsun logo (assuming that it wasn't trademarked, of course), and then proceded to go after the original logo and concept designers??
Wow.Re:Anyone remember the Linux trademark? (Score:4, Insightful)
I have seen a quote to that effect. That is really sick. I doubt Congress would step in because most congressmen are or were lawyers. Lawyers like to stay employed like the rest of us, but they also have powerful people in their profession to back that up with IMO unethical considerations.
Re:Uh... prior art? (Score:5, Insightful)
This guy needs a blanket party, if you know what I mean.
Re:Everything is in order here... (Score:5, Insightful)
Re:This is not a huge deal (Score:3, Insightful)
Thank you, thank you! The fact that people have them all confused and muddled in their minds is a testament to how harmful the term "Intellectual Property" is.
David Foley's reply to that (Score:1, Insightful)
This was his actual response (!)
You are welcome to do so. However, you can not prevent me from using my name with a trademark, no more than I can prevent the MAME community from using the name, nor do I care to. I am simply trying to prevent commercial sales of MAME products that promote unlicensed illegal ROMs.
Re:David R Foley (Score:1, Insightful)
http://www.davidrfoley.com/Personal%20Web%20Page_
Open Letter (Score:3, Insightful)
I read your comments at http://www.ultracade.com/mame.pdf. Respectfully sir, the trademark to MAME is not yours. Well reasoned good intentions do not change the basic fact that you are attempting to steal something as surely as the machine vendors you complain about.
If your goals are genuine, there is a right way and a wrong way to go about it. You already know the wrong way. The right way is to solicit a contract from the many authors of MAME that would enable you to hold the trademark in trust for the described purpose of taking action against lawbreaking commercial sellers as you describe.
Foley offers to retract application (Score:2, Insightful)
He's trying to stop theft with theft? (Score:3, Insightful)
Any scenario where the trademark doesn't end up in the hands of the people who developed the software and created the name and logo is just asking for trouble down the road.
Re:Quickest way to make your business tank (Score:2, Insightful)
Re:Mirrored Forum Posting from MAME.NET by David F (Score:5, Insightful)
Still, the crux of the issue is that you're landing a heavy boot square in the domain of the MAME authors.
You make allusion to them infringing on proprietary copyright and patents. And, in the great tradition of people quoting this, then fail to mention any of them. Please, if you can prove MAME is indeed infringing on Patent and Copyright, please inform us of your findings.
Downloading a ROM for free, yes, that is indeed copyright infringement (not stealing, as you represent your company, please be semantically correct).
But, it seems that, to prevent 'unfair' competition (people providing a harness that can play games on it, if someone purchases a ROM, for cheaper than you can provide), you then decide to put a claim on a name made by others.
While technically legal, you are, in spirit, no better than someone who infringes on other trademarks.
I've heard of MAME (stopped using it, as I couldn't find somewhere to legally purchase the ROMS, and no vendor seemed interested in that activity), but I've never heard of your products.
This absolutely reeks of a company with little market recognition seeking to acquire a name by subterfuge and bad practice.
I would say, if you have an issue with people selling these machines for less than you can produce legitimate ones, you should be working hand in hand with the MAME authors, and providing them with legal backup to chase the makers of these license infringing machines, giving them a stronger position, rather than trying to subvert the name and position.
Much as you may believe you're legally able to do this, I think your grasp of the aftereffects of doing this are lacking. Many emulation enthusiasts may avoid you on principle. I know I will.
I look upon you as a hypocrite. While justifying your move as one to prevent 'theft' of a piece of 'intellectual property' (name and code of a ROM), you 'steal' someone else's property (their name, which is the whole umbrella of their project, thus subverting the project itself).
Your 'plan' seems nothing more than "Someone's taking from what we want, so we'll take something from someone completely different.".
Work with the MAME group, and you may well get good results, if you treat them well.
Work against them, and one name change and a few months later, you'll have the same problem, with a massive PR problem on your hands.
Um, someone might want to stop burning the witch (Score:2, Insightful)
Re:Still has to go under review. (Score:5, Insightful)
Point is, that while the examiner can claim to grant the marque in good faith if he is unaware of any existance of any connection - the mail I (and by now many others) have sent makes it clear to the examiner that there is no basis in trademark regulation to allow this marque to be approved. This shifts the burden of proof back to the applicant, something he would be hard pressed to do.
Re:Their side of the story (Score:5, Insightful)
Re:Foley responded to my email (Score:4, Insightful)
I guess he's never heard of the "Right of First Sale". I couldn't find the license agreement on StarROM's site, but unless they were extremely clever, such a clause would likely not be legally enforcable (although, IANAL).
This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market...
I wonder what will happen if another company tries to start "legitimately" selling arcade machines? What guarantees do we have that UltraCade is only going to go after "bad nasty pirates"? What assurances do we have that this won't be used to create a monopoly? We have none. In fact, we have the opposite; if UltraCade succesfully trademarks MAME, then they MUST pursue any infringing use of that trademark, otherwise they risk loosing it. This means the authors of MAME will have to enter into some kind of legal agreement with UltraCade, or else stop using the MAME name.
Re:Mirrored Forum Posting from MAME.NET by David F (Score:3, Insightful)
If the MAME licence indicates that it is indeed illegal to profit from selling arcade machines with MAME installed, then shouldn't you be collaborating with the authors of MAME on this? Yes, it would take more effort, but you wouldn't be stealing someone's trademark.
Assuming it the MAME licence allows selling of machines with MAME preinstalled, then these "illegal arcade machines" are infact perfectly legal. The fact that they have free software installed allows them to beat your price just for the machine. This is how free software works in the commercial market. The return is the exposure MAME gets, which results in more people contributing to it. Since you can't do anything about that, you abuse the legal system to get your way. That's bad for America in general, and won't do much to earn you a good reputation. The only thing illegal going on in this case is the distribution of arcade ROMs. If that's interfering with your market, then you have a case right? Yes, it's more difficult to deal with than simply sueing the makers of MAME arcade machines with a stolen trademark, but it's the legal way to do it, and won't have the possibility of resulting in anymore damage to America's already damaged legal system.
Re:Copyrighted (Score:3, Insightful)
*penalty may vary by state, municipality, and how expensive your lawyer is
Re:Everything is in order here... (Score:4, Insightful)
Re:Everything is in order here... (Score:2, Insightful)
Re:TM Law (Score:3, Insightful)
If the term or a variation of the term "M.A.M.E." and the logo for M.A.M.E have been and are presently in use in the field of arcade machine emulation products, then Mr. Foley is free to apply to register it as a trademark, but the USPTO will reject his application. In addition, the authors of M.A.M.E, or ANYONE who has an established business that markets M.A.M.E based machines, can easily submit an opposition to the USPTO once the trademark application is published for review. This trademark will not be granted, at least not to Mr. Foley.
I realize that the majority of people reading Slashdot believe that the USPTO is full of asshats, but the office is really rather good at its job. The constant complaints about patents and patent applications arise because examining patents is a very complex process, and Slashdot readers tend to have far more than average expertise in the fields where these complaints tend to concentrate. The USPTO also does not have an easy job because documentation standards are fairly strict, and they do not have a complete catalog of every USENET/forum posting, software program, academic article, etc. in existance with a verifiable publication date. More time and resources would help, but we're not even discussing a patent, so let's just move away from this tangent.
The USPTO is quite good at examining trademarks. After all, the examiner "merely" has to compare a word, phrase, logo, or in rarer cases, other physical attribute (the NBC chime, the Owens-Corning shade of pink), with other phrases already in use within a particular category of commerce. Although it is possible for someone to register an unregistered trademark that is in use (cases published in law school texts generally revolve around national chain versus pre-existing regional or local store - e.g., google Billy Goat Tavern and trademark), it is not common. This is especially true when the putative trademark is used "nationwide" and if there is ready documentation of its use in things such as ads in the minor-league retailer portions of national magazines.
In short, you cannot shut down an activity that you don't like simply by jumping on the unregistered trademark and registering it with the U.S. government. These applications are examined and reviewed similarly to patents, but they cover much more defined and easily understood subject matter. It's not nearly as simple as grabbing an open "mame.com" domain name from Verisign and squatting on the term while your competitor(s) wail and gnash their teeth.
Re:Frankly......IMHO...."steal away" (Score:4, Insightful)
You overlooked the original poster's "should" and "as intended by the framers" reference. When the United States was founded, IP concepts were only supposed to last for "limited times," originally about 21 years. Having copyright, trademarks, and patents last for indefinite periods of time was introduced roughly at the turn of the 20th Century as a side effect of the legal and economic fallout of the Industrial Revolution and the US Civil War. If the US was still treating IP as it was originally implemented, Disney, Coca-Cola, et al, would already be public domain.
The question at hand now (and is argued here at /. ad nauseum) is that if this indefinitely long "IP monopoly" state is really a good thing for a culture or not... One of the key reasons IP law was changed was to encourge R&D in companies since modern manufacturing and service expenses are dominated by large up-front fixed costs, as opposed to the older "artisan" system where labor and unit costs were a larger proportion of the equation. The debate is if this legal change has given large organizations (and their legal teams) too much power at the expense of smaller organizations and individuals.
Re:Everything is in order here... (Score:1, Insightful)
Re:Everything is in order here... (Score:5, Insightful)
And just in case it is less than clear, this -is- trademark fraud. To apply for a trademark, you have to fill out a form which includes statements to the effect of "we have no knowledge of anyone else using this trademark in the same field of business". In order to apply for this trademark, they have to lie on the form, which is fraud.
Keith
Re:Reply to the Mistatements on SlashDot (Score:2, Insightful)
2) Why did you keep this secret until it was uncovered nearly a MONTH afterwards?
3) Who told you you could do this?
4) Why didn't you get permission from the COPYRIGHT holder of the mame logo?
5) What right do you have to dictate the ditribution methods of a product not your own.
To me, this letter is a bullshit attempt at justification for what is plainly an act of spite, ill-will and corporate greed. It does nothing to stem the hatred and disrespect this guy so thoroughly deserves.
Re:Still has to go under review. (Score:2, Insightful)
You cited and linked to Chapter 12 of the Trademark Manual of Examining Procedure, which contains a section 1207.03 [uspto.gov] that appears to contradict your view that this is the correct time in the procedure to raise your issue.
But we will see what happens with the letter you sent. If it works at this stage I will be quite surprised.
Re:Everything is in order here... (Score:5, Insightful)
Unfortunately, the PDF is currently down, but I assume it says something similar to the email Foley sent to the Slashdot editors (which has been posted in the story since then). If this is true, then here is a summary of what he said:
1) Foley has licensed ROMs from many of the publishers.
2) Foley uses MAME and his licenses to offer gaming machines for sale.
3) Pirates do not have licensed ROMs from any of the publishers.
4) Pirates use MAME and the illegal ROMs to offer gaming machines for sale.
5) The Pirates' gaming machines are cheaper than Foley's and offer more games than Foley's.
6) To combat the Pirates' (illegal) competition, Foley is trademarking MAME.
While I can sympathize with Foley's concerns about Pirates freely distributing illegal ROMs, the simply fact of the matter is that he does NOT own MAME, has no affiliation to MAME, and has no right to take control of the MAME name, logo, or to trademark them. His application for the trademark is fraudulent. He indicates (in a vague fashion) that he does not intend to sue the creators of MAME, but then he goes on to say this:
This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market by capitalizing on unlicensed games and selling products that only have value when coupled with illegally obtained games. (Bold emphasis mine.)
"... selling products that only have value when coupled with illegally obtained games." - Hold on there!!! So, if I want to sell a box loaded with MAME, you're going to come after me? Right now he seems to be targeting only those that provide "instructions" about how to get illegal ROMs. But as with everything else in the world
Re:Mirrored Forum Posting from MAME.NET by David F (Score:3, Insightful)
Just because he has a legitimate grievance with some people selling boxes on eBay does not give him the right to infringe on the MAME developers' existing legal trademark rights, whether registered or not. He is now violating the law by filing and using a fraudulent trademark claim, which he is entirely well aware is fraudulent, to prosecute third parties with whom he has a grievance. This is not legal, it is not moral and it is not ethical.
If he wants to make money off of MAME, then he should be offering legal ROM bundles that work with MAME for sale and prosecuting those who sell systems packaged with illegal ROMs - this does not require making any fraudulent trademark claims at all.
What a giant load of... (Score:4, Insightful)
And what exactly will stealing a logo and name do to stop them? He can't copyright the code, so these guys would simply remove all reference to "MAME" from their code and continue to sell it. Totally irrelevant.
I'm amazed at the response of the community, a community that is being whipped into action by the same people who are stealing and profiting from them and they're efforts.
Aside from the irritating use of "they're" (you wanted "their", buddy), what's whipping us into action (here we are, so easily lead astray. And I thought you said you were writing to an intelligent audience?) is the fact that you're trying to steal via copyright a work that has been used for years by another party. No chance this would hold up to a court challenge. Whether or not you plan to sue the authors of MAME is not the primary issue, as you would lose. The issue is theft.
As to the legality of ROMs (IANAL), according to the DMCA, I am entitled to own a backup copy of digital media that I own. If I am unable to create that backup for myself, I can have someone else generate it for me. So if you actually own the cart, then yes you can legally download a ROM image. True, not very cost-effective, but legal.
You can't solve your company's problems by misappropriating other people's property.
Completely Evaded the Subject (Score:4, Insightful)
My questions are these.
Did they legally obtain the rights the the logo and name before filling?
What on earth does going after illegal competitors have to do with getting trademark for a name and logo you didn't create? Did I miss something?
He might want to actually clarify the issue at hand *before* getting on the high horse.
Suggestion: assign MAME trademark to non-profit (Score:3, Insightful)
I think he should either create a non-profit that is supported by M.A.M.E. programmers and community, or drop the idea. Also, I think that any other company making consoles will be succesful suing UltraCade for unfair business practices if UltraCade pretends to be the supplier of the M.A.M.E. emulator while it isn't.
David's rebuttal distracts from MAME trademark... (Score:3, Insightful)
But he does not own the MAME name, nor its trademark, and his attempt to secure it for his supposedly noble purpose of fighting piracy is not a good enough reason on its own.
Basically, Dave, fuck off.
Re:Everything is in order here... (Score:4, Insightful)
Well, civil procedure issues are probably moot, because the alleged infringers are not interested in having the legality of their "businesses" resolved. Any "company" that vends cabinets loaded with MAME and 4,000 ROMs is probably not going to appear in court. (If it came to that, MAME would have standing - and much stronger grounds - due to infringement of its own copyright.)
This is strictly a police issue: how can we (the legitimate emulation community, including [for the moment] UltraCade) get their auctions canceled, their webspace yanked, their PayPal accounts closed, etc.? And this has nothing to do with trademark law. In fact, bringing in this unrelated body of law only confuses the issue.
The UltraCade lawyers aren't particularly sneaky or clever. They gambled that they couldn't be effective any other way, and apparently ignored the risk of community/market backlash.
This highlights a key point: If UltraCade legitimately wanted to use the MAME trademark as it alleges, why didn't they bring this up with MAME before now? If I wanted to be a guardian angel and spend resources protecting your rights, I think I might mention that plan to you at some point. The post-hoc nature of this justification severely limits its credibility.
- David Stein
Interesting comment... (Score:3, Insightful)
It sounds to me as if the application for a trademark was submitted illegally. The part about believing you to be the creator, or something like that seems obviously false. The letter on the website shows without a doubt that you are aware of the existence of a program of the same name, yet you signed the trademark application anyway.
You also stated that you want to use the trademark just as leverage to sue those who are committing crimes. If you are truly interested in this, perhaps you should start collecting information about who is distributing these illegal copies of roms and turn it over to the law, or, *gasp* the actual developers of MAME. You can say that you don't want to make a profit off of the MAME name until youre blue in the face, but since you have other (legal) methods of achieving your goal, which you have not taken, then it makes you, the person who fraudulently submitted an application to USPTO, no better than the people who copy these roms.
Now IANAL, but doesn't the copyright on some of these games expire after a certain amount of time? Unlike Disney, some creators DO allow their creations to fall into the public domain after a while. What about playing these games on MAME?
Oh, wait about fair use laws? According to fair use law, I have the right to download a song off the internet if I already own the song in some comparable digital format. Where does the law state that owning a ROM chip doesn't give you the right to play the game? You say the law is strict, but don't quote it or even mention what the law DOES say.
Two wrongs do not make a right (Score:2, Insightful)
Moral right to "M.A.M.E" rests with the authors of that software. If you do not have their blessing to trademark the term, you are doing wrong.
That is an issue separate from the legal status of ROMs. When you conflate those two issues you engage in an emotional argument, which serves only to balkanize the interested parties.
Your insight into the industry is fascinating, but your letter did not address the issue of a MAME trademark.
Re:Everything is in order here... (Score:3, Insightful)
(I betray my cowardice by logging in...
Well, it seems likely that they'd be able to get a temporary restraining order that would ripen into a default judgment at some point in time. Enforcement might be a problem, but if you have a court order in hand, you should probably be able to get webspace yanked and so on. I'm not researching this or anything, just thinking on it in a public forum. They could still try this strategy, pending the resolution of what promises to be a protracted trademark dispute.
But if they're not showing up in court, the only thing the trademark does is, maybe, convince ISPs based on a mere letter (rather than court order) to avail themselves of the safe harbor provisions of the DMCA to take down a site or auction. That is a little bit cheaper in the short term.
Or do they just figure the MAME developers won't protect their interest?
Policing the arena is, as you point out, the big problem. But a trademark is no more effective in the longterm than a bogus trademark registration - at least in the U.S. Under the CA B&P Code, you can get your attorney fees back for getting your TRO.
The only possible advantage I see in the trademark hocus pocus is its decidedly international flavor.
This highlights a key point: If UltraCade legitimately wanted to use the MAME trademark as it alleges, why didn't they bring this up with MAME before now? If I wanted to be a guardian angel and spend resources protecting your rights, I think I might mention that plan to you at some point. The post-hoc nature of this justification severely limits its credibility.
The elegant way to do this would have been to negotiate a license of the sort that would convey standing on them for such actions. What they've really done, as you again pointed out, is to say "We don't really care about the potential negative impact this has on the rightful developers - their rights aren't important to us, because they're just a bunch of open-source goodniks doing this for free and can't afford the lawyers to stop us."
It'd be fun to see one of UltraCade's lawyers put in an appearance here.
How to be your own RIAA? (Score:4, Insightful)
I'd certainly feel better about this if UltraCade were a non-profit organization or at least a representative body, and not just some company who's figured out an alternate revenue stream.
Re:Everything is in order here... (Score:3, Insightful)
Interesting that Ultracade sells a product of which MAME is an integral and irreplacable component. In other words, without MAME, an Ultracade box would be a functionless product and there seems to exist no alternative component that could be used in its place.
Foley: The market does not need hypocrites (Score:3, Insightful)
You did not:
1.) Create the MAME acronym or draw the logo.
2.) Do any work programming MAME.
Before crusading against those who break the law, maybe you should find a method which is more in line with the spirit of the law. Even if what you are trying to do is legal (there is legal precedence that suggests it is not), it does not sit very well with your customers (and potential customers). The sheer volume of comments this atricle has produced should be fairly convincing evidence that what you're doing is pissing a lot of people off. Some of those people are your cusomters / potential customers.
If you want to use the law to save your business, then I'd like to point out that there are already mechanisms in place through which you combat piracy. That's right. You go to the proper copyright holders and request that they protect their copyrights. Since you licence ROM's from many companies, you already have a few contacts to go to. Odds are that their ROM's are among those being pirated. Try explaining to them that the sales of those MAME machines hurts your business, and that you may no longer be able to pay for your licenses if it is allowed to continue.
But if it turns out that you can't find the copyright holders, then it means that they probably aren't being hurt by the sale of those games. And guess what? Copyright is intended to grant temporary monopolies (maybe not so temporary anymore) of reproduction to the creator of a work that they might profit from it. The copyright on the illegal ROMs was not meant to protect you or any business you have. I cannot feel too bad when someone who does not produce anything of their own get screwed by copyright infringement. Why don't you program your own ROM and let it get leaked into illegal circles? I may be more sympathetic then (but I probably won't. Not unless you do it with the intent of making and selling a ROM, not just as a legal tool.)
One more thing. Don't be a moron. Trademarking (Trademarking! Not even copyrighting!) MAME will not stop the sales of arcade cabinets with illegal ROMs on them. They will still be sold and people will still buy them, only it will be done in such a way that the four letters M-A-M-E never get mentioned during the transaction. If the four letters M-A-M-E become bad news for pirates, then they will simply stop using them. Do you really believe that a single trademark (TRADEMARK! not even copyright!) is not enough to stop an entire black market?
Black markets exist because people want things that they cannot get through legal means. If you trademark MAME, it will not change peoples' desires to have cheap, well-stocked arcade machines. They will get them, no matter how many trademarks you have. And if it turns out that by some miracle you actually can stop them from buying them (which would make you the first), what makes you think they will want to buy your higher-priced, less-stocked machines?
What do I suggest? Become a good capitalist. Either do one of the following:
1.) Advertise your plight. Educate people about the illegality of the machines they are buying. Appeal to the hearts and minds of your potential customers. Education can go a long way, and just as some people feel bad for pirating video games, movies and music, so too will some people feel bad for pirating old arcade games. Note that this route isn't likely to work unless you take the moral high ground.
Or (and this is my preference):
2.) Find a way to give people what they want. Make a low cost, well-stocked arcade machine for people to buy. If you can't lower the price or put any more ROM's on your machines, you will have to find some other way to become competitive.
A final request: If you decide that you don't want to evolve to compete with piracy, then try not to hurt too many people as your company tailspins.