Well, from what I've read on distributing Nintendo games, and really all that 5000$USD License does is force you to make a game that has overly high goals. It does not even put the game on any shelves or advertise it (you still have to do that yourself). A little hard for us indy developers to do, ya think? Then I thought... maybe the rumours of video games in vending machines and convience stores in Nihon are not true. Are all Nintendo Doujinshi to be downloaded only? Then I remembered... what about all the hardware that did not pay Nintendo 5000$USD for their license. Mad Cat is notorious for this. Then an even bigger example hit me. Game Genie and Game Shark. Two things that, I am sure, if Nintendo had the power, would be off the market (otherwise they most likely would be Nintendo licensed). So I started thinking on legal defenses around getting Game Paks for the GBA, or any of Nintendo's hardware for that matter. ROMs are legal, piracy isn't though. So making the games is obviously fine. Nintendo does not own any of the hardware, other than possibly a few patents used in the game pak (hardware is owned by ARM, IBM, Motorola or SGI, depending on what piece of hardware you are talking about), and I really doubt a lot of hardware companies will complain about people developing for their hardware. Or atleast not sane ones that wish to stay in business. On top of that, a lot of the same hardware is not Nintendo exclusive. Making it hard for Nintendo to claim any ownership. Now how would it be distributed? The game that is. Well, most business would, and should still pay Nintendo if they can afford it, that explained later. So if I don't have the money for the seal of approval, I am not likely to be able to pay off Walmart to sell it nationwide. Nor would I be likely to convince 7-11 (a franchise of convience stores in NA, maybe also Japan) without money and the Approval. Well, what I suggest is make a mockup package, with maybe a box, flash cartridge with game preloaded, artwork for box and flash cart and a manual. Then sell it on E-bay. Simple, right? My notes on the approval: While Nintendo's Approval has been shown as not needed, if I could afford it, I would get it. If I can afford it, I am a target. If I cannot afford it, well I could further argue that Nintendo would not have gotten the money from me anyways, as I would have just developed for a different platform instead. Which would actually lose Nintendo on hardware sales. Also, Nintendo's Approval _-is-_ a seal of quality. It shows people the game is worth buy, maybe not for game play, but that it will not break as easily as something without the seal of quality. C+C?

Quote: Original post by DakeDesu
Then I remembered... what about all the hardware that did not pay Nintendo 5000$USD for their license. Mad Cat is notorious for this.

Your making the classic mistake of taking tiny parts of a picture and guessing what the whole picture would look like. Yes, several companies have won cases vs Nintendo but many more have lost. Before quoting Madcatz as a defence you need to know exactly what the item was and what their legal defence was. Making controllers or other 3rd party add ons that are compatible is one thing. Even making cheat carts which use code on an existing game cart (instead of replacing it) might be OK. However making a cart which requires Nintendo copyright code to run on their hardware wouldn't.

Further more (and even more important) all the companies that beat Nintendo had to fight them first. They had to hire lots of very expensive IP lawyers and go to court for many years at a cost millions of dollars in order to win their case. You won't get legal aid to fight such a case and you won't find a lawyer willing to do it on a no win no fee basis so unless you have millions of dollars your plan is doomed to fail.

Quote: Well, what I suggest is make a mock-up package, with maybe a box, flash cartridge with game preloaded, artwork for box and flash cart and a manual. Then sell it on E-bay. Simple, right?

No, not simple at all. How are you going to sell these games without mentioning Nintendo? Any use of the Nintendo name or the name of the console or any other Nintendo trademarks would allow them to get a very speedy ruling against you in court for Trademark infringement and passing off.

Quote: My notes on the approval: While Nintendo's Approval has been shown as not needed...

no it hasn't as mentioned above.

Quote: ...if I could afford it, I would get it. If I can afford it, I am a target. If I cannot afford it, one well I could further argue that Nintendo would not have gotten the money from me anyways, as I would have just developed for a different platform instead.

Sorry but the law doesn't allow you to do whatever you want without paying just because you can't afford it. As soon as you made that claim in court Nintendo's lawyer would stand up and point out that you just admitted your guilt. The judge would agree, you would lose the case and have a nice big legal bill (your own and Nintendo's) to pay.

Appologies for the AP, but it might be a good idea to bone up on a bit of history in this area. Particularly in regards to Nintendo v. Tengen.

http://en.wikipedia.org/wiki/Tengen_%28company%29

Quote: Well, from what I've read on distributing Nintendo games, and really all that 5000$USD License does is force you to make a game that has overly high goals. It does not even put the game on any shelves or advertise it (you still have to do that yourself).

Generally that's the publisher's job, yes.

Quote:
A little hard for us indy developers to do, ya think?

Of course. It's not meant to be easy. Console manufacturers have an interest in ensuring that the games released for their platforms are of a certain quality; poor quality reflects on them more than the developer of the game; Jane User buying little Jimmy a video game for his birthday has trouble even understanding that the PSP and the DS are made by entirely different entities, let alone who makes the games. If Jimmy hates the game, that will translate to dislike of Nintendo (or Sony, or whoever) by Jane.

The same thing happens in the PC world, though not with the hardware but with the OS. Developers may mis-use some feature of the API, which translates to a buggy program, which will more often than not be blamed on Microsoft (say), rather than the developer of the software (sometimes even the developer will blame Microsoft, not realizing that he's used an API incorrectly).

Hobby developers are not supposed to develop for consoles; that's why the barrier to entry is less the price of the kit and the licensing and more the approval process of obtaining the license -- say you if you could afford it, you'd get it, but just because you have the cash doesn't mean you'll get the license. They are not retail products.

Quote:
Game Genie and Game Shark. Two things that, I am sure, if Nintendo had the power, would be off the market (otherwise they most likely would be Nintendo licensed).

Game Genie sales were temporarily halted in the US during the ensuing legal battle with Nintendo; as Obscure pointed out, you'd most likely still have to fight Nintendo. Whether or not you won, you'd pay out the nose and it is highly unlikely you'd ever make enough money from the sale of your unlicensed games to turn a profit.

Quote:
Then sell it on E-bay. Simple, right?

I think that eBay would pull your auctions, especially once you started having a lot of them. I really doubt they'd want to get themselves caught up in the legal imbroglio and would consequently "do the right thing" by pulling the auctions until the matter was resolved.

Quote:
Which would actually lose Nintendo on hardware sales.

How do you figure? Whatever profit -- if any -- they see from dev kit fees are likely to be pretty small. And your game(s) won't be impressive enough to actually move hardware for.

Quote:
While Nintendo's Approval has been shown as not needed,

Some people may have done it, but they've paid for it. You would have to as well. You'd probably have to start by hiring a good lawyer to go over the actual legal implications of everything you think is a legal defense. Because you're not a lawyer, and trying to craft legal defenses via logic tends not to hold up in court. What the law deems neccessary don't always jive with one persons concept of "logical."

Quote: Original post by Obscure
However making a cart which requires Nintendo copyright code to run on their hardware wouldn't.

This line here makes me suspect the post is bullcrap. What "Nintendo copyright code" is required to run on their hardware? Other than the code that there is already a legal precendance to use without Nintendo permission thanks to Acclaim?

As per "how do you not include Nintendo's name when selling it": Simple. Say, "not licensed by Nintendo".

Other than that line about copyright code, and somehow managing to say it is for a Nintendo product, I am not sure where the lawsuit would be. If it is as glaringly obvious as you guys seem to be stating it, it is not obvious to me.

Quote: Original post by DakeDesu

Quote: Original post by Obscure
However making a cart which requires Nintendo copyright code to run on their hardware wouldn't.

This line here makes me suspect the post is bullcrap. What "Nintendo copyright code" is required to run on their hardware? Other than the code that there is already a legal precendance to use without Nintendo permission thanks to Acclaim?

As per "how do you not include Nintendo's name when selling it": Simple. Say, "not licensed by Nintendo".

Other than that line about copyright code, and somehow managing to say it is for a Nintendo product, I am not sure where the lawsuit would be. If it is as glaringly obvious as you guys seem to be stating it, it is not obvious to me.

Then you really shouldn't trying to develop for consoles, as you are totally ignorant of how they work. Games contain specific bootcode to start up. That bootcode is checked by the console hardware to see if it is legitimate. The only bootcode marked legitmate by the hardware happens to be copyrighted.

You also really need to bone up on your console history. The ability for any smuck with some captial to put out a game for someones console was one of the key causes of the 1983 video game industry crash. The home video game industry remained dead for 2 years until Nintendo and their "seal of quality" came in an resurrected it.

Controlling the quality (and to a degree, the quantity) of games is a key factor in the success of the console industry. It's had 20 years to make a framework that ensures only approved games can legally be sold, and while some companies may loosen their standards (Sony seems to be getting quite loose with certain quality control standards with the PSP, and during the time the Saturn was crashing Sega was desperately ok'ing almost anything from approved developers) it will be a cold day in hell before they let any smuck with a C++ compiler put a game for their console on store shelves (outside of Hong Kong).

If you really want to develop for consoles you should be looking at:

XNA and Live Arcade - at some point in the future Microsoft will likely have a process where by you can develop for the PC, then approach Microsoft about publishing that same game on Live Arcade. The game will still need to be approved (which means it must pass Microsoft QA), but its likely there will be a path whereby you can get a "development kit" for $99 a year, the only restriction being you won't be an official developer (and thus there will likely be legal restrictions that say you can't claim you are an XBox 360 developer or otherwise advertise an association with Microsoft products until the final game is actually approved)

Wii Connect24 - Nintendo's plans are currently unknown, but there are suggestions that Nintendo might offer "user created content", in the form of mini games made in a sandbox environment (the above XNA is also sandboxed). It's also likely the case that Nintendo is lowering the bar in terms of financial outlay - while they still won't let any 16 year old like you make games, they will let in smaller companies so long as they can show promise. A key benefit of the Wii to developers is that it promises to cost much less to develop a game for it then the $10 million+ you are looking at to develop an XBox 360 or PS3 title.

Homebrew - you can't sell it, but you can still make something for the GBA, either to present to a publisher who is accepted by Nintendo, or as a portfolio piece to getting a job with a respectable studio.

Quote: Original post by DakeDesu

Quote: Original post by Obscure
However making a cart which requires Nintendo copyright code to run on their hardware wouldn't.

This line here makes me suspect the post is bullcrap. What "Nintendo copyright code" is required to run on their hardware?

As Michelson pointed out the problem is your lack on knowledge in relation to console development and not the quantity of bovine excrement in my post.

Quote: As per "how do you not include Nintendo's name when selling it": Simple. Say, "not licensed by Nintendo".

Many hobby teams working on games based on someone else's IP put messages on their website/game stating "{xyz} is copyright of Bigpublishersoft, and we make no claim over the IP etc etc" in the mistaken belief that this offers some protection against being sued for breach of copyright. In fact it does the opposite. It admits that they know the IP is copyright but used it anyway. It is referred to as a willful breach. By putting "not licensed by Nintendo" on your game/site you prove you knew that games need to be licensed but have not done so.

Quote: If it is as glaringly obvious as you guys seem to be stating it, it is not obvious to me.

In that case you should consult a game/IP experienced lawyer. There is a list of good ones on my web site at http://www.obscure.co.uk/directory_legal.shtml. Of course a cheaper solution would be to ask yourself why publishers are officially licensed (and paying millions of dollars in license fees). If it really was as simple as you think wouldn't everyone be doing it?

[Edited by - Obscure on October 23, 2006 11:36:54 AM]

Quote: Original post by Obscure

Quote: As per "how do you not include Nintendo's name when selling it": Simple. Say, "not licensed by Nintendo".

Many hobby teams working on games based on someone else's IP put messages on their website/game stating "{xyz} is copyright of Bigpublishersoft, and we make no claim over the IP etc etc" in the mistaken belief that this offers some protection against being sued for breach of copyright. In fact it does the opposite. It admits that they know the IP is copyright but used it anyway. It is referred to as a willful breach. By putting "not licensed by Nintendo" on your game/site you prove you knew that games need to be licensed but have not done so.

But you were addressing the issue of *trademark*. Yes, obviously the product must not breach copyright, but that is a separate issue, and must be true whether or not the say it can run on Nintendo.

Quote: Original post by mdwh
But you were addressing the issue of *trademark*. Yes, obviously the product must not breach copyright, but that is a separate issue, and must be true whether or not the say it can run on Nintendo.

No, I was addressing the issue of "willful breach". The example I used just happened to be related to copyright but the same applies with Trademarks.

Making a cart run on a Nintendo system (without their permission) would require the OP to breach their copyright.
Use of the words Nintendo (or other registered trademarks) for the purpose of selling an unlicensed cart would be a trademark infringement.
Adding "not licensed by Nintendo" would compound the offence as it would show that this was a willful infringement.

I'm not a lawyer but since nobody's mentioned it yet it's possible that the DMCA (and now similar laws in Europe) make the legal scene worse than it was back when Game Genie etc. beat Nintendo. Under these laws you aren't allowed to chip consoles to take unofficial CDs (pirated or not, doesn't matter), so you might well be breaking them as well.