A few weeks ago, the Seattle Times ran an article about the newest company to carry the Atari brand name increasing their licensing enforcement program in an attempt to increase revenue and get Atari’s name back in the headlines, and Atari’s games back on shelves.

Well, perhaps that summary isn’t entirely accurate. Instead, the company “Atari” seems to have become more of a rotating chair on the faculty of a University. The job was done previously by other people, and the current resident had a career before getting their current job, but for right now, the name gets the credit for the content released, and not necessarily the person doing the work.

Atari has had some financial trouble in recent years, and has taken moderate advantage of the current demand for “retro” games by re-releasing their classic games for modern systems. Atari was on the forefront of obtaining protection for video games under US Copyright Law, so it is not surprising that the current iteration would still protect the arcade-style games.

However, there may be some question as to whether the industry or society as a whole benefits by allowing one company to monetize the creations of their many-times-removed predecessors in interest, especially when the technology has moved so far beyond what was capable at the time. Games that required a cartridge or arcade machine in the 1980s can now be programmed and played in flash or java online from anywhere. However, while the ease of copying something, or the pleasure in recreating something from one’s youth may be a reason to learn how to code, it is generally not a defense to copyright infringement.

Copyright fair use is more likely to be a successful defense when the original work was not very creative, when the copier had selfless motives, and when the market for the original work is not affected by the copy. So when the industry has moved beyond arcade machines, the market for such arcade games becomes much smaller unless and until the original rights holder updates the game to be played on more modern technology. Once the company has done that, as Atari has done with their multitude of “Classic Game” compilations, then fair use becomes that much harder to obtain for homages and iPhone apps.

Is that wrong? Technically, no. Perhaps a bit heavy-handed, and possibly an unintentional consequence of a struggling company attempting to get money out of existing titles. But wrong? Not according to US Copyright Law, which currently governs the issue.

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