Related link: http://www.atariage.com/forums/viewtopic.php?t=58184
The four games Infrogrames asked AtariAge to remove are clear derivatives of old Atari titles. It’s not clear that anyone would legitimately confuse them with the official Atari versions, but I can understand why a copyright or trademark holder would be leery about allowing distribution of something so close to an existing product.
Reproductions are a similar situation. If there’s code or artwork involved, Infogrames has a strong position to ask people not to distribute these products.
Finally, distributing ROM hacks — especially hacks on cartridges — which change the sprites, text, or levels of an existing ROM is hard to justify. Distributing the hacks themselves as patches is probably alright, but bundling the hack with the ROM and distributing a modified version of the original ROM seems like a clear copyright infringement.
Should Infogrames have looked the other way? Perhaps. Is the company well within its legal rights to ask that even Atari’s most devoted fans respect its copyrights and tradeworks? I think so.
Moral rights may come into play, too. In a different genre, science fiction, a similar debate has flared from time to time. Recently, the owner of Roger Zelazny’s estate commissioned three prequels to his popular Amber series. This goes against stated wishes of Zelazny himself, but the executor of his estate does have the legal right to do so.
(Reportedly, Neil Gaiman once asked Zelazny for permission to set a story in the Amber universe. Zelazny declined. I wish he’d given permission and suspect that Gaiman also does, but I respect Gaiman for both asking and honoring the decision.)
Could Infogrames try to stop all homebrew development and distribution? Possibly. Would the company have any legal standing? I can’t say for sure, but I find it unlikely.
How could this be a good thing for homebrew game development? Perhaps it will encourage developers to come up with their own ideas, instead of creating clone after clone. If that happens — if the homebrew community demonstrates that it’s willing to keep old consoles and platforms alive long past the point of mass-market commercial viability — perhaps the publishers will be willing to make their development kits, hardware documentation, and even some source code public more often.
At least, homebrew communities that show more respect for copyrights and trademarks will have a better moral ground from which to make that case.
Now where’s my PSOne dev kit?