As recently as last week, the Retro Arcade Collection was dubbed a set of NFTs meant for “preserving abandonware games on [the blockchain].” In practice, that meant playable demos for games like Blizzard’s Blackthorne and Remedy’s Death Rally had been embedded into NFTs without any authorization by those games’ rights holders. A week later, following inquiries from Waypoint, the NFTs were removed after “some NFTs got reported.”
“The license seems to check out for the purpose but didn’t want to get dragged into any debates as that’s not in the spirit of the collection,” said Rashin Mansoor, founder and CEO of MetaGravity Studio, the company behind the collection, in a statement to Waypoint. “As such, we’ve removed all the games and changed the NFTs now to mint passes for our upcoming NFT-native retro game.”
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If you claimed the NFT that once played Blackthorne, it no longer plays Blackthorne.
On April 22, the Retro Arcade Collection launched to demonstrate MetaGravity’s ability to embed playable software within an NFT, when the NFT was viewed on OpenSea, one of the larger NFT marketplaces. And it worked, too. It was janky—getting the browser to recognize my keyboard was a pain—but it worked. Before they were taken down, I played demos of Death Rally, Blackthorne, and even the 90s arcade shooter Total Carnage in my browser.
It wasn’t clear, however, if MetaGravity had the rights to publish and sell these NFTs. It wouldn’t be outlandish for a video game company to partner with a project like MetaGravity, and retro games seem like a perfect fit for much of crypto’s cynical brand of exploitation, but there was no word of any partnerships, and MetaGravity was using the term “abandonware,” which specifically implies that a game company has left the game behind, forever.
“The team has curated the list of games we used so that we stick to freeware mostly, and in some cases, game demos,” said Mansoor, when Waypoint originally contacted MetaGravity last week. “It has been quite tricky to validate the status of a lot of abandonware but we’ve gone to lengths to try and ensure we’re using freely distributable versions of games. We’d have liked to preserve abandonware more broadly similar to what a lot of abandonware sites are doing, but wanted to err on the side of caution on this. We also added a DMCA form on our site so copyright holders can request take downs if any of these are not okay to host.”
At the time, Mansoor said, “nobody” had asked to have a game removed.
Video game preservation has and remains a complicated topic, because the industry itself is largely interested in re-selling new versions of old games to players, rather than enshrining its own history. It’s only recently, as it becomes clear parts of game history are being completely lost, that passionate individuals and new institutions are doing something about it.
Abandonware and freeware are different ideas but not without overlap. Abandonware refers to software—games or otherwise—that are no longer supported by the company that made it, whereas freeware is software being distributed by the creator without charging money.
“‘Abandonware’ is not a legal concept under US law,” said David Hoppe, a lawyer at Gamma Law. “Copyright protection continues for these works up to the end of the term provided in the Copyright Act. […] “Putting a game or other creative work on blockchain doesn’t change its legal status. If the game was subject to copyright protection, that would still apply.”
Take Death Rally, for example. Remedy actually released a freeware version on the game’s 25th anniversary, celebrating a milestone in the history of the developer behind Alan Wake, announcing in September 2020 that Death Rally “is free on Steam” and it’d last “forever.”
But making Death Rally free does not mean giving up the copyright—Remedy can still make a new Death Rally game if it wants to, or, if they choose, start charging for the game again.
“We were not aware, we didn’t sanction this,” said a Remedy spokesperson when asked about the NFT listing by MetaGravity. “Thank you for bringing this to our attention.”
Blizzard Entertainment, who made Blackthorne, did not respond to a request for comment.
Epic Games founder and CEO Tim Sweeney, upon being alerted about the collection and the presence of games developed by Epic, said he would “pass it on to the legal team” in a tweet.
“Just because a company is offering a demo or freeware version, or if it’s ‘abandonware,’” said Zachary Strebeck, a lawyer specializing in games, “doesn’t mean they don’t have copyright rights in it. Copyright gives the owner exclusive rights to control duplication, derivative works, and most other uses of the copyrighted work, and lasts for over 100 years in most cases.”
Nightdive Studios recently published an updated version of the old school Egyptian-themed shooter PowerSlave. A demo of the original PowerSlave was in the MetaGravity collection.
“If you keep your car in the garage for a really long time,” said Nightdive Studios director of business development Larry Kuperman, “I can’t just take it.”
Kuperman told Waypoint a DMCA was filed over the listing, prompting the NFT’s removal.
Around this time, MetaGravity announced this phase of its NFT experiment was over.
“We’ve proved the point of the tech demo and going to focus our efforts on the next phase of the tech innovation for playable machine code NFTs,” said Mansoor to Waypoint. “We think NFTs as a means for distributing modular interoperable game code have enormous unexplored possibilities that will rival surpass even [sic] what we saw with the shift to mobile gaming.”
MetaGravity is also actively developing a “play-2-earn” MMO called Edge of Chaos, and has been teasing other game-related projects on social media. In late April, it announced that “Retro Arcade 2.0” would include “remakes of iconic Retro Games using our original IP delivered as the first truly native NFT games” and linked to a screen shot with its intentions:
In the image, MetaGravity shows sprites from the original Warcraft, before showing how a proposed spin-off from its in-development NFT MMO would be “stylized” after Blizzard’s revolutionary strategy game. One Twitter user joked “Dmca” incoming” in response.
“Perhaps you’re right that ‘remake’ is poor wording,” said Mansoor, when asked if the term remake would inspire copyright issues. “The graphics, story and gameplay are all being created from scratch so it will rather be inspired by classics but be something quite new.”
When MetaGravity announced its retro games would no longer be playable, as the company shifted towards its original efforts, the response from fans on Twitter was mostly celebratory.
“Great adaptability,” said one user.
“No worries, this is a great move,” said another. “Adds excitement!”
Follow Patrick on Twitter. His email is patrick.klepek@vice.com, and available privately on Signal (224-707-1561).
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