I'll continue the top posting in case Brian wants to follow the thread.
What he proposes isn't actually all that unusual. A lot of open-source
games are dual-licenced, with the code under something like the GPL,
and the copyright holders of the “assets“ reserving their rights. Free
software purists don't like it, but it happens. And there's no problem
with “active protection“ rules, any more than Mozilla's trademarks are
threatened by their inclusion in Firefox. That's their distribution
model.
I think it would be eminently possible for a company to say that the
code of its 8-bit games was now under a BSD licence, but it retains
copyright and trademark rights on the graphics and characters. The only
likely difficulty is that in these old games, code and assets weren't
kept very seperate. I imagine that's the way these companies are
looking at it: how can you use two different licences for what is,
effectively, one single block of code? I'm not so sure that's a problem.