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The Legality of ROMs

Posted: 12th August 2006 14:39

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I was thumbing through FantasyAnime, and I found a link to an FAQ that purports to be a legal analysis of emulation. What I found interesting is one subsection: The Question of ROMs.

It seems to me that Chuck Cochems, who wrote the section about ROMs, started out with a conclusion (ROMs should be legal) and set out to frame a legal argument, rather than simply setting out with an unbiased mind to see what the law really is. Cochems brushes over other defenses that have been proposed in the past (e.g., making a backup of what you own) and focuses on the fair use doctrine. His argument completely ignores requirements and purpose of the fair use doctrine, as I will discuss.

Copyright law protects "original works of authorship fixed in any tangible medium of expression." 17 U.S.C.A. § 102(a). The statute protects the following works:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

Id. As works "expressed in words, numbers, or other verbal or numerical symbols or indicia," video games fall within the terms of the 1976 Act. Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832, 838 (Fed. Cir. 1992).

Copyright law protects against unauthorized reproduction or distribution of copyrighted works. (In the U.S., almost anything created after 1989 is protected, whether it contains a copyright notice or not.) The "fair use" exception to copyright law holds that a reproduction of a copyrighted work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." 17 U.S.C.A. § 107. The following factors must be considered in determining whether a use is fair:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fair use doctrine exists to protect your freedom of expression; copyright law only protects against your appropriation of other people's expression.

Cochems, the author of "The Question of ROMs," uses fair use in defense of his proposition that ROMs are not a copyright violation. The author cites a Supreme Court case that discusses the fair use doctrine. The quoted section focuses on the first factor of the 17 U.S.C.A. § 107 test: "whether such use is of a commercial nature or is for non-profit educational purposes."

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Although not conclusive, the first factor requires that "the commercial or nonprofit character of an activity" be weighted in any fair use decision. If the Betamax were used to make copies for a commercial or profit-making purpose, such use would presumptively be unfair.


What the court is saying is that one of the factors you have to consider is whether the use is commercial or nonprofit. It does not say that this is the only factor, which is how Cochems interprets it: "A noncommercial, nonprofit use qualifies for fair use. All personal use is by its very nature noncommercial and nonprofit."

Cochems has turned the entire test on its head by suggesting that if it's a non-profit use, it is a fair use and therefore not a violation of copyright. If this were true, software piracy and downloading free MP3s would be perfectly legal, as long as you don't make any money or distribute it to someone else.

But even this discussion is moot, considering that Cochems's use doesn't even fall under "criticism, comment, news reporting, teaching ... scholarship, or research." His use is entertainment -- a use that you would otherwise be required to pay for. And even though it is a non-profit use, it is a use that impairs the market value of the copyrighted work (the fourth use). Arguably, if we all decided to download games for free instead of paying for them, the market value would be impaired.

Even if we could somehow turn entertainment into a use that falls under 17 U.S.C.A. § 107, Cochems's argument still fails, because he has neglected one other requirement. "To invoke the fair use exception, an individual must possess an authorized copy of a literary work." Atari Games Corp., 975 F.2d at 838; NXIVM Corp. v. Ross Institute, 364 F.3d 471, 478 (2nd Cir. 2004). Since a ROM is by definition an unauthorized copy, this rule would foreclose the fair use defense based upon bad faith.

After reading this article, I think I see why they require you to have a license to practice law. Unfortunately, the idea that personal use is not a copyright violation is a prevalent myth, but Cochems ought to be held to a higher standard of legal scholarship, since he obviously has access to some legal resources and had the wherewithal to locate the fair use statute and a Supreme Court case that discusses it. If only he had taken the time to read what he found before writing....

This post has been edited by Magicite on 12th August 2006 14:43

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Posted: 13th August 2006 08:53

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I agree he sounds like that he started out with the conclusion he wanted, but I don't think you read it carefully. He points out that even he agrees downloading ROMS is not protected. Also I don't think the law says that a reproduction MUST qualify as "as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" in order to be fair use. It must meet the 4 requirements to be fair use. The recording of a broadcast does not fall into any of the categories, but it is fair use.
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Posted: 13th August 2006 13:16

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Quote (1stclass @ 13th August 2006 03:53)
The recording of a broadcast does not fall into any of the categories, but it is fair use.

The Betamax case is easily distinguished from downloading ROMs, however. Remember, the fair use doctrine requires you to have an authorized copy in the first place. A typical television broadcast is intended for the public at large. If you get free local channels, and an episode of The Simpsons comes on, that broadcast is an authorized copy.

Downloading ROMs is analogous to downloading pirated software of music for "personal use." Most of the time that people download ROMs, they don't own the actual cartridges. (My favorite line is "Sure I own all those games. They're in storage/were stolen.) Even if they did own the cartridges, the backup theory fails, because they have not backed up their own copy. They downloaded another copy off the web.

This post has been edited by Magicite on 13th August 2006 13:23

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Posted: 13th August 2006 14:41

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What I don't get is how this is groundbreaking news. The only people who really fight to say that ROMs are legal are the ones who are simply in denial of it - fancy lawspeak doesn't really supercede common sense for most, IMO.

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Posted: 13th August 2006 15:02

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Quote (Rangers51 @ 13th August 2006 09:41)
What I don't get is how this is groundbreaking news. The only people who really fight to say that ROMs are legal are the ones who are simply in denial of it - fancy lawspeak doesn't really supercede common sense for most, IMO.

When someone attempts to make a legal argument (citing statutes and cases) that ROMs are legal, it ought to be addressed in the form of a legal argument.

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Posted: 13th August 2006 15:14

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Quote (Magicite @ 13th August 2006 11:02)
When someone attempts to make a legal argument (citing statutes and cases) that ROMs are legal, it ought to be addressed in the form of a legal argument.

OK, but that wasn't any of us, was it? Wouldn't you be better off calling out the author directly rather than at someplace that I doubt he's ever visited? smile.gif

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Posted: 13th August 2006 15:28

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Well, there are original games programmed by ameteurs into ROM format. Last I checked, those are legal if they release them into the public domain (a Homestar Runner RPG was such a game in development that would have been released into the public domain by the Brothers Chaps, but it was put on hiatus due to time constraints). Also, from my understanding, patches are legal. -CSM

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Posted: 13th August 2006 15:45

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Quote (Rangers51 @ 13th August 2006 10:14)
OK, but that wasn't any of us, was it? Wouldn't you be better off calling out the author directly rather than at someplace that I doubt he's ever visited?

Not any of you, but I thought that it would be an interesting read. I originally posted this on the forum where the FAQ is hosted.

Quote (Crazyswordsman @ 13th August 2006 10:28)
Well, there are original games programmed by ameteurs into ROM format. Last I checked, those are legal if they release them into the public domain (a Homestar Runner RPG was such a game in development that would have been released into the public domain by the Brothers Chaps, but it was put on hiatus due to time constraints). Also, from my understanding, patches are legal.

Any game released into the public domain is, by definition, legal to download or modify. However, unauthorized fan-games and translation patches are probably copyright violations.

This post has been edited by Magicite on 13th August 2006 15:47

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Posted: 13th August 2006 20:40

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That was an interesting post. My background gives me an interest in this but also not much time to discuss it.

Let me just say this--the law is never written in stone. It is completely interpretable and subject to constant revision, and making the legal argument that ROMs fall under Fair Use is not quite as assinine as you make it out to be. Case law has been reinterpreted in more ludicrous ways before, "separate but equal" immediately coming to mind.

My understanding of it, and I hope you'll forgive me for not having the time to do any research on this right now, is that in order to download the ROM you must own a copy of the actual game. The law does not state that you must actually be the one who created the backup file. For instance, let's say I own a DVD and I want to make a backup, but I don't own a DVD burner. If I have a friend make a copy and he hands both of them back to me there is no violation. The same argument could be make for downloading ROMs. Now, as for the "I owned the game years ago but don't know where the copy is," that argument has some validity. If you purchased an SNES catridge of FFIII, for instance, and you download the same American release off of the internet, whether the catridge is still in your possession may or may not qualify as "ownership." If you sold it or gave it away it could be argued that ownership was transferred in the same way you transfer ownership of a motor vehicle, and therefore you no longer own it. However, if the copy is "in storage or lost," and you never transfered ownership of the property to anyone else, then arguable you are still the owner of that copy and the download could be considered legal. Of course, showing that you ever owned the copy is entirely different, and harder to prove.

Whether ROMs fall into the Fair Use...well, I personally don't buy it and you laid out the argument just fine so I won't revisit it. I wlil say consider this when it comes to your comparison to recording television program broadcasts. Remember that at one point recording broadcasted television programs on VHS, as well as making copies of radio broadcasts onto tape, all went through the legal process as considerations of copyright violation. In those cases, the law sided with the public. Both those cases, I believe, were also brought up in the Napster suit, though Napster ultimately lost its claim (on public broadcast issues versus private distribution, I believe, as you aptly pointed out).

Still, my point is that the decision could just have easily gone the other way. The law is always subject to interpretation and never set in stone. Your argument, while perfectly valid and certainly more grounded than your opposition's, does not warrant the accusation that the person you're arguing against is totally inept. I would say he did a more than decent job considering what he was working with. And of course he set out with an objective and then worked around the law to prove his point. Welcome to the legal world. laugh.gif

Speaking of which, are you studying or planning to study the law or was this just a side project?
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Posted: 13th August 2006 21:06

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I've actually written a similair article, and read the one Magicite posted when I did. My conclusion reads as follows: it's all illegal. For every practice there's a law condemning it, and while there are also quite a few protecting the other side, keep in mind that in a serious (and completely fictional) skirmish in court, it'd be mega-company lawyer versus your pro-deo.

Downloading a ROM if you have the original? Illegal, since you didn't dump the ROM yourself, and even if you did you'd have no professional business doing so, and even if you did, it's an unauthorized transcension from one medium to another; you can't make a movie from a book without the author/publicist's (depends on the country) explicit permission.

Opening the thing in a hex editor? Wrong, since you're circumventing protective measures (i.e., the code). Save States, custom-built editors, ROM hacks, all illegal. Hell, a text file containing a ROM bank is illegal.

The question therefor isn't whether or not it's legal, cause it ain't. The question is, does the offended company in question has any business in targetting you for it? This depens on the scale of the crime and the impact of it.

Massive sites offering a wide variety of ROMS, emulators for modern consoles sold for money or even for free, that's the kind of thing they'll want to take down. They have nothing to gain from a custom-built editor being removed from the web, or save states at Zophar.net, or Jack Johnson's hardtype hack. They're both as illegal as the other. Sites such as GameFAQs and CoN won't allow linking to sites that offer ROMs, but both will allow minor offenses such as Save States and the like. Not because the latter is anymore legal than the former, but because the first one is too close for comfort on the DANGER scale and the latter isn't.

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Posted: 13th August 2006 21:31

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Although the law is not "written in stone," as you pointed out, it is somewhat resistant to change. Judges are reluctant to do X when existing precedent (case law) suggests that they should do Y. In many cases, judges are compelled to do Y if that is the decree of another court, whose rulings are binding. (For example, all courts are bound by the U.S. Supreme Court when it rules on a matter of federal law.) In order for the lower, trial courts to be allowed to rule differently, a case would have to make it all the way to the court of higher authority.

Technology advances more quickly than the law. Whenever a case comes up that involves new technology, the courts are once again required to preserve the balance between the protection of intellectual property and the "rich public domain."

To my knowledge, there aren't any cases that discuss the "backup theory" of ROM downloads. However, I think that most courts would have trouble with the idea of downloading an unauthorized copy as a backup. Downloading a ROM is a bit different from the example you cited, in that even though you did not make the backup yourself, it was YOUR COPY that was copied, not your friend's copy. Also, the backup version in your example is fixed in the same type of media and could be used in the same way.

I haven't read any of the old VHS cases, but I suspect that it would be relevant to the judge to know that the very nature of VHS (and cassettes) prevents a person from making thousands of identical copies of the same tape. (The tape degrades with each playing, and each copy is not as good as the original.) The same cannot be said of ROMs and other digital files; the 1000th copy is just as good as the first.

While it is entirely appropriate to start with an objective and then attempt to find laws that prove your point when you are writing persuasively on behalf of a client, that sort of bias does not make for very good legal scholarship. If the purpose of your writing is to predict what a court would do, the best way to proceed is to analyze the issue and then develop a conclusion; not vice versa.

I'm beginning my second year of law school this week. The "project," as you call it, was just a spur of the moment bit of research that I decided to do after I read the original article. Of course, none of what I write should be construed as legal advice. If anyone has a legal question about something he's doing, he should consult a licensed attorney who is competent in that area of law.

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Posted: 13th August 2006 22:03

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Quote (Magicite @ 13th August 2006 17:31)
Although the law is not "written in stone,"


Well, at least not since the days of Hammurabi's Code. wink.gif

Quote
While it is entirely appropriate to start with an objective and then attempt to find laws that prove your point when you are writing persuasively on behalf of a client, that sort of bias does not make for very good legal scholarship. If the purpose of your writing is to predict what a court would do, the best way to proceed is to analyze the issue and then develop a conclusion; not vice versa.


Was his objective to predict what the court would do? It seemed to me he was making an argument as to why the downloading and distribution of ROMs should be legal on a Fair Use basis. Of course, I didn't spend much time reading this. If this was suppossed to be a case of objective legal research than your point certainly stands.


Quote
I'm beginning my second year of law school this week.


smile.gif I begin my first year in four days. I would definitely like to keep in touch with you. I had a feeling based on the quality of your argument.


Quote
Of course, none of what I write should be construed as legal advice.  If anyone has a legal question about something he's doing, he should consult a licensed attorney who is competent in that area of law.


Of course, which is why I try never to get too technical with my research on these things on forums. Most attornies that post on message boards often have the disclaimer you just posted. Luckily I'm not at that point yet, but I still try to tread carefully. Political discussions are another matter. smile.gif

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Posted: 18th August 2006 22:27

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I still don't think anyone but Djibriel read the linked article carefully. The only thing he gives an argument for is that ROM's created yourself from your own legal carts might be defended under fair use, and he emphasizes it is an untested defense. What's more even if the ROM created such was found legal you would still be sued under the DMCA for obtaining a cart dumper (unless you built it from scratch).

He even goes on a tangent to explain that downloading a copyrighted ROM is never defensible under fair use.

Whether or not ROMs are found to be legal the real injustice for the broader subject of computer technology is the DMCA. It prohibits doing all sorts of things to copyrighted works you own, even if you are't doing those things to make copies.

http://en.wikipedia.org/wiki/WIPO_Copyrigh...lementation_Act
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Posted: 18th August 2006 22:47

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Quote (Djibriel @ 13th August 2006 21:06)
The question therefor isn't whether or not it's legal, cause it ain't. The question is, does the offended company in question has any business in targetting you for it? This depens on the scale of the crime and the impact of it..

Well this got me thinking a bit, and please excuse my lack of knowledge where these laws are concerend... just a thought.

I can see a ROM potentially being illegal in the sense that downloading a copy of a game without first haveing purchased it because it reduces game companies profit margin... stealing in a nutshell.

But if these companies are no longer producing these games for the market, where is the harm? Particularly in the case of NES and SNES games. Games for these systems are no longer produced and therefore are unlikely to provided any further profit to the people who made them originally. So, barring the copywrite on the titles, it's not REALLY taking anything away. I fail to see the harm in that sense.

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Posted: 19th August 2006 14:06

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Quote (ultimage @ 18th August 2006 17:47)
But if these companies are no longer producing these games for the market, where is the harm? Particularly in the case of NES and SNES games. Games for these systems are no longer produced and therefore are unlikely to provided any further profit to the people who made them originally. So, barring the copywrite on the titles, it's not REALLY taking anything away. I fail to see the harm in that sense.

While it is technically illegal, I'm not aware of any instances where a gaming company shut down a site that distributed ROMs of old games that are no longer readily available. In the event that such a case did make it to court, the issue of "how much harm does it do" could be relevant in determining damages.

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Posted: 19th August 2006 17:55

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Unfortunately, there aren't any laws which allow even de facto legalization as the games become old and out of demand. Regardless of the value of the copyrighted work there are still statutory damages for violating copyright which can be thousands of dollars. The defendant can also be forced to pay all legal fees if he loses. While the "lack of harm" may affect how hard companies will enforce their copyrights it barely makes any difference legally.
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Posted: 20th August 2006 00:32

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Quote (1stclass @ 19th August 2006 12:55)
Unfortunately, there aren't any laws which allow even de facto legalization as the games become old and out of demand. Regardless of the value of the copyrighted work there are still statutory damages for violating copyright

Correct. I don't mean to give the impression that downloading old games is "less illegal." It is still a violation of copyright, and you could still be liable for damages.

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Posted: 23rd August 2006 14:10

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Posted: 31st August 2006 13:16

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Hmm, I consider them illegal, like downloading music, but, I still have some ROMS.

I simply make it a point to ONLY download ROMs from dead systems (NES, SNES, original Gameboy). That way I'm not stealing money from the company. In fact, it helps make them money... if not for the Megami Tensei games I'd have never got the ones on the PS2, which are AWESOME. In most cases I'll only get games that were never released here too.

I don't pretend what I'm doing is legal, and I don't try to justify it... I simply follow my own set of rules... which a lot of people do, if they admit it or not.

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Posted: 31st August 2006 17:47

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So I think that the distribution and downloading of ROMs is kinda wrong, but it's something I'd just turn a blind eye toward in most cases. To be honest, for a good number of (especially older) games, the online distribution of ROMs increases visibility for the company or at least the series, which is actually beneficial to the company.

Obviously, if most gamers downloaded ROMs of, say, the latest DS games (for example) and very few actually bought the real thing, no duh the company would be losing a lot of money, and I understand that. Which is why I now have my own policy about ROMs: I use ROMs to sample games.

It's sort of like weeding out crappy games. I don't want to waste $40 for purchase, or even a $5 rental fee, for a game that I'd discover is actually crud. Instead, I can play it as a ROM (or in a few cases, an ISO--since I mainly play older non-disc systems), and I can tell whether it's a good game or not. If it's a good game, then I will make an effort to actually buy the game. Too bad many older games are no longer in production; if they were, I'd be more than happy to grab a copy off of a store shelf. I think that's the right thing to do. True, older games are hard to come by, but I'm starting to get into eBay and stuff like that in my search for them. Because there's a definite satisfaction--both ethically and pride-wise--in owning "the real, original" item.

I'm not one of those people who downloads five million ROMs at a time, either just to have something on hand to play while bored or "for archiving purposes". On the contrary, I download ROMs one at a time--exactly the game I'm looking for. Maybe I'll find something interesting on the side, but that's generally unlikely given how rarely I grab stuff I've never heard of. I generally play games that have had some kind of established reputation (as opposed to crap like this "diva dolls" or something game that I once came by--can't remember the actual name). And if it turns out to be crappy, or even an okay game that I finish within 3 hours and don't feel much attached to, I actually delete it--not a game worth my hard drive space.

Even without ROMs, I generally avoid getting new games because I don't know if they're that great yet. Something may be overhyped and turn out to suck; something else may be a dark horse that turns out to be a masterpiece. Since I'm in no hurry to get stuff anyway (what's a few more months behind mean anyway, after being about 7 years behind already?), my practice of not bothering much with newer games is similar in function to what I do with ROMs.

Some people might say "oh, well what you're doing is illegal". Okay, fine, it's illegal. I didn't conceive of my ideas of ethical decision-making from a legal standpoint; I conceived them based on what I thought is the right thing to do. The part about ROMs (and other illegal copies of games) is that it costs the company money. If it didn't cost the company money, I actually believe that companies would embrace ROMs readily, since the free distribution of fun makes people talk about them more. Where ethics comes in is in the fact that I am willing to essentially pay the company the cost of owning the actual game, thus making up for the aspect of illegal copies that is actually detrimental. I will never attempt to make a profit out of an illegally acquired game; if anything, I will generally encourage my friends to buy the game.

A special note may be made about handheld systems. I have a laptop, and my laptop's screen is much bigger and much better lighted than a handheld's screen, and my laptop is portable. Okay, it's kinda bigger, and more expensive, and has more other functions unrelated to gaming. But I feel that I'd much rather play, say, a GBA game on my laptop rather than a GBA because it's visually more comfortable. However, I am still open to buying actual hard copies of the handheld games I play on my computer (there're only a handful of such games anyway), and for that matter, since the DS can play GBA games, and also since it seems to have a nice and nicely lit screen, I've been thinking about getting a DS and getting the GBA and DS games that I want on it.

That said, if anyone wants to sell any of the following games, feel free to send me an e-mail naming a price:

Final Fantasy Tactics
Final Fantasy Tactics Advance
Metroid Zero Mission
Metroid Fusion
Castlevania: Circle of the Moon
Castlevania: Harmony of Dissonance
Castlevania: Aria of Sorrow
Mega Man 6 (NES)

My e-mail is on GMail, and the name is the three parts of my username here smashed together.

This post has been edited by Glenn Magus Harvey on 31st August 2006 17:48

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Posted: 25th April 2011 18:39

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This topic has come to some very disturbing conclusions which are by no means based in study of the law. The entirety of Title 17 is freely available for review[on the U.S. Copyright Office's website. Allow me to walk you guys through my defense of emulation and the circumstantial personal possession of R.O.M. files as described in the comic:

While it is usually true that the copyright holder has the exclusive right to create copies of their work, there are exceptions. I'm not just talking about the Fair Use terms under Chapter 1, section 107 either. That doesn't come into play because the direct creation of one copy of any software you own is explicitly allowed under Chapter 1 Section 117. If I'm interpreting the clauses properly, you can either do so for use with other machines under paragraph a) 1 or solely for archival purposes under paragraph a) 2 but not both, meaning only one of these two copies can be in use at a time.

[Note: Paragraph B) forbids the direct transmission of such copies without the original it was created from, which is part of what makes R.O.M. sites and other similar distribution venues a no go. Copies that aren't from made from a cartridge you don't legally possess are illegitimate. I believe this to be more or less an extension of Section 109 pertaining to first sale doctrine.]

It is commonly thought that the drafting of the WIPO's D.M.C.A. may in fact prohibit but when we look at the anticircumvention laws in
Title 17 Chapter 12 that it actually reaffirms this right in Section 1201 Paragraph (f) (1). Since section 1201 is rather long, here's a direct quote for reader convenience:

Quote ("Title 17 Chapter 12 section 1201 subparagraph (f) (1) Reverse Engineering")
(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.


In the context of this discussion, I believe this could be interpreted as essentially saying we may in fact circumvent any barriers preventing us from using our archival copies of our games in conjunction with an emulator. I believe this to be the case because:

  1. Making a program interoperable with another machine does not constitute infringement, under Chapter 1, Section 117 A as described above.
  2. The emulator and operating system of the host computer itself constitute computer programs to make our legally purchased software interoperable with.

Also before we call this untried, cases defending console emulation have been held in court by Sony against both Connectix and Bleem by the way. It is worth noting that although legal costs have bankrupted the defendants, each defendant was ultimately exonerated of any wrongdoing.

Let's backtrack a little now to the very beginning of Section 1201 because I'm not even sure if we have to resort to this defense quite yet because the entire purpose of the law according to paragraph a is to prevent people from circumventing "a technological measure that effectively controls access to a work protected under this title." which is left undefined. To my understanding, there are no software measures in place keeping anybody from directly copying the video game data off of the cartridge. When an exact bit by bit copy is created, there seems to be nothing keeping it from being used in conjunction with an emulator just the same as it would with its native console (with Earthbound being an errant exception. user posted image ).

This little loophole seems to be closing with the current generation of game consoles as they begin to use encryption keys to unlock their software. However for the greater majority of video game consoles out there and our primary subject of interest, the only factor that may potentially be interpreted as effectively keeping us locked out is one of hardware:

Cartridge based systems like the SNES and Nintendo 64 are fundamentally different from anything Sony ever introduced in one way though. They were created with proprietary physical formats that render them normally inaccessible to the computer. Utility patents may prevent us from creating or using the connectors required to read data off of our video game cartridges.

Now I'm not quite as well versed in patent law as I am in copyright law but if my understanding is correct patents typically expire 17 or 20 years after the date of issuance, pendent on the date they were files. The exact circumstances are a bit hazy there but the rule of thumb given is patents filed after June 8, 1995 expire 20 years after the date of filing, while patents filed beforehand expire 17 years after the date of filing. (Too bad, so sad for N64 fans. Patents definitely won't expire on that 'till at least 2026.)

So the main question is, once patents on the connector required to create a game reader expire, allowing anybody to use such a device as part of an open standard, does it remain an effective means of controlling access to the work. I wouldn't think so but even if it does, I'll refer you back to my prior reverse engineering defense.

Quote (Magicite)
Id. As works "expressed in words, numbers, or other verbal or numerical symbols or indicia," video games fall within the terms of the 1976 Act. Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832, 838 (Fed. Cir. 1992).


Objection: Atari Games Corp. v. Nintendo of America Inc. was a patents case over creating cartridges which bypass the 10NES authentification chip. The NES10 Authentification Chip is not required to play the games at all and in fact, the top loading Model NES-101 doesn't even have one. Nobody would implement its functionality in an emulator. Additionally, Nintendo's patents over the NES hardware was in full force, which was no longer the case as of 2002-2005 if my math is right. It isn't a relevant ruling to the contemporary issue of if NES ROM extraction is legal today (or even in 2006 when you first wrote that post user posted image).

Quote (Djbriel)

Downloading a ROM if you have the original? Illegal, since you didn't dump the ROM yourself, and even if you did you'd have no professional business doing so, and even if you did, it's an unauthorized transcension from one medium to another; you can't make a movie from a book without the author/publicist's (depends on the country) explicit permission.

Opening the thing in a hex editor? Wrong, since you're circumventing protective measures (i.e., the code). Save States, custom-built editors, ROM hacks, all illegal. Hell, a text file containing a ROM bank is illegal.

The question therefore isn't whether or not it's legal, cause it ain't. The question is, does the offended company in question has any business in targetting you for it? This depends on the scale of the crime and the impact of it.


Some of these assertions appear to be correct, however if my above assertions of the above citations are correct, some don't seem to be. Dumping the R.O.M. is one example but also of particular note is that you seem to be of the opinion that viewing the R.O.M. file's code isn't allowable under any circumstances. Referring back to Connectix vs Bleem, the court states the following:

Quote
[W]here disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.


Which appears to sanction the coding and software analysis of Master Zed's Unoriginal White Sheet as one perfectly reasonable fair use for possessing and examining the R.O.M. file on his computer, amongst potentially many.

Also, just in case; personal liability disclaimer: I'm neither a lawyer offering legal advice, nor a judge presiding over a case. The interpretations as to of the workings of the law made in this post are wholly good faith speculations and are not offered as authentic legal advice that will necessarily hold up in a court of law. If you want such legal advice, please seek the council of a practicing attorney of law.

Thank you and good night.

What? user posted image

This post has been edited by Tonepoet on 26th April 2011 14:52
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Posted: 25th April 2011 23:35

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As sad as it is I'm going to go with Tonepoet here and say please don't take this post as advice of any kind and treat it as an unreliable opinion.

Well I spent a little while reading everything over in a sort of half-assed comparative point of view. It's really interesting nonetheless. I'd just like to add that instead of going straight to statute and case law you should just have a look at your agreements within the games and computer services you're 'buying'. Remember, like a lot of the law, this topic is not just under a Procrustean heading of intellectual property or criminal law. Here we're dealing with a massive amount of contract law as well.

Quote (Tonepoet)
This topic has come to some very disturbing conclusions which are by no means based in study of the law.

!!!

Firstly I just want to say I'm responding to Tonepoet more than anything here. Like people have correctly said, the law is not in stone, however anyone worth their salt knows where to look for indicators as to what a court would decide. Remember nobody buys games, they are licensed to us in a contract. Within this contract you're given statutory, common law and possibly 'constitutional' rights (I really don't know US law) as well as rights to IP within the agreement. No title or ownership passes in nearly every case. So a lot of contract law gets involved here. Here's a typical American game agreement:

Quote
2.GRANT OF LICENSE.  SCEA grants you a non-exclusive right to use this software for play on a PlayStation2 computer entertainment system only.  You may not (i) rent, lease or sublicense the software, (ii) modify, adapt, translate, reverse engineer, decompile or disassemble the software,  (iii) attempt to create the source code from the object code for the software, or (iv) download game content for any purpose other than game play. You may, however, transfer all your rights to use the software to another person provided that you transfer the original product and this Agreement with the software.

That seems to rule out emulation in the agreement don't you think? (It makes me think of whether uploading your licensed PSX BIOS with ePSXe is technically within the license, or if playing games on ePSXe is within the terms, but that's not what I really want to discuss...)

Also, critically, there is a precedent concerning software use at s. 117 of the statute. MAI Systems Corp. v. Peak Computer, Inc. [also note this is post-Nintendo]. And unfortunately it basically derails your argument Tonepoet.

Quote
Since MAI licensed its software, the Peak customers do not qualify as "owners" of the software and are not eligible for protection under [s.] 117.

The court has interpreted the section to only apply to owners of the IP, not licensees. So going to what I was saying before, we don't own the property of the game we only have a license. The rights we get in the software do not extend that far. I don't know what Congress was intending with s. 117 and the definition of "copies" for that matter, and for all I know it could or has been overruled in a superior court.

Quote (Tonepoet)
Objection: Atari Games Corp. v. Nintendo of America Inc. was a patents case over creating cartridges which bypass the 10NES authentification chip. The NES10 Authentification Chip is not required to play the games at all and in fact, the top loading Model NES-101 doesn't even have one. Nobody would implement its functionality in an emulator. Additionally, Nintendo's patents over the NES hardware was in full force, which was no longer the case as of 2002-2005 if my math is right. It isn't a relevant ruling to the contemporary issue of if NES ROM extraction is legal today (or even in 2006 when you first wrote that post).

The Nintendo case was definitely dealing with copyright infringement among other things. As far as I read the case was decided purely on the basis of the copyright infringement, funnily enough.

I'd like to end by saying that I hope Magicite and especially MetroidMorphBall return to give a much better run-down of the issues here. After reading the cases and the statute I'd like to see how it properly fits together, if you're not too busy! smile.gif

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Posted: 26th April 2011 13:32

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Oh my, this topic again. tongue.gif For what it's worth, here's TV Tropes's take on the subject of emulation, which was co-authored by yours truly (though I wasn't the latest editor).

I decided to go through and freshly re-read the course of this thread. Had a few particular comments to make. This is a very interesting thread indeed.

Quote (Magicite)
Even if they did own the cartridges, the backup theory fails, because they have not backed up their own copy. They downloaded another copy off the web.


But you said this earlier:

Quote
"To invoke the fair use exception, an individual must possess an authorized copy of a literary work." Atari Games Corp., 975 F.2d at 838; NXIVM Corp. v. Ross Institute, 364 F.3d 471, 478 (2nd Cir. 2004). Since a ROM is by definition an unauthorized copy, this rule would foreclose the fair use defense based upon bad faith.


Must the unauthorized copy be derived directly from the authorized copy? If not, then possession of unauthorized copies doesn't matter as long as the person in question possesses one authorized copy.

Quote (Magicite)
Any game released into the public domain is, by definition, legal to download or modify. However, unauthorized fan-games and translation patches are probably copyright violations.


Wouldn't the fan-games themselves be legal, but then the coexistence of patches and fangames not be (assuming that you can derive the original game from the fangame by reversing the patch)?

Alternatively, if we're going to note that the framework of the fangame--including the game physics (or its basis), script (or its basis), graphics (or their bases), and other gameplay features (or their bases)--are the copyrightable work of the original creators of the (original) game, then perhaps we could say that the unique design features of the hack are legal--and even copyrightable by the ROM hackers--but that it's just that such details cannot be played legally unless a ROM of the original game can be acquired legally.

Quote (MetroidMorphBall)
If you sold it or gave it away it could be argued that ownership was transferred in the same way you transfer ownership of a motor vehicle, and therefore you no longer own it. However, if the copy is "in storage or lost," and you never transfered ownership of the property to anyone else, then arguable you are still the owner of that copy and the download could be considered legal. Of course, showing that you ever owned the copy is entirely different, and harder to prove.


Suddenly, I'm wondering whether minors can own games if their parents bought the games for them.... The implications are...lulzworthy.

Quote
And of course he set out with an objective and then worked around the law to prove his point. Welcome to the legal world.


Heh. Yep. Some people have to realize laws are for finding loopholes around and using to bind your political/financial enemies. tongue.gif

Quote
The question therefor isn't whether or not it's legal, cause it ain't. The question is, does the offended company in question has any business in targetting you for it? This depens on the scale of the crime and the impact of it.

Massive sites offering a wide variety of ROMS, emulators for modern consoles sold for money or even for free, that's the kind of thing they'll want to take down. They have nothing to gain from a custom-built editor being removed from the web, or save states at Zophar.net, or Jack Johnson's hardtype hack. They're both as illegal as the other. Sites such as GameFAQs and CoN won't allow linking to sites that offer ROMs, but both will allow minor offenses such as Save States and the like. Not because the latter is anymore legal than the former, but because the first one is too close for comfort on the DANGER scale and the latter isn't.


Precisely. Game companies are in general aware of the existence of emulation and ROMs, keep in mind.

Quote (Magicite)
While it is entirely appropriate to start with an objective and then attempt to find laws that prove your point when you are writing persuasively on behalf of a client, that sort of bias does not make for very good legal scholarship. If the purpose of your writing is to predict what a court would do, the best way to proceed is to analyze the issue and then develop a conclusion; not vice versa.

I'm beginning my second year of law school this week. The "project," as you call it, was just a spur of the moment bit of research that I decided to do after I read the original article. Of course, none of what I write should be construed as legal advice. If anyone has a legal question about something he's doing, he should consult a licensed attorney who is competent in that area of law.


Great to know that you're studying law--or were; are you now practicing? I think a lot of us would wonder whether you're doing anything involving or approaching copyright law.

Also, I know what you mean by legal analysis as opposed to legal strategy.

Quote (MetroidMorphBall)
smile.gif I begin my first year in four days. I would definitely like to keep in touch with you. I had a feeling based on the quality of your argument.


How about you, now that it's been almost five years since this thread was last active?

Quote (ultimage)
But if these companies are no longer producing these games for the market, where is the harm? Particularly in the case of NES and SNES games. Games for these systems are no longer produced and therefore are unlikely to provided any further profit to the people who made them originally. So, barring the copywrite on the titles, it's not REALLY taking anything away. I fail to see the harm in that sense.


Whether there's a harm done is different from whether someone can sue your pants off for it. tongue.gif And there's also a difference between actual harm and potential harm.

Also, since your post (18 Aug 2006), Nintendo has come out with the Wii and its Virtual Console, and Sony the Playstation Network, and various other services such as GameTap (I think that's one that is currently distributing older games) have been founded. Your point, however, still stands for games such as Earthbound (which I am really damn sure has not seen a re-release stateside due to its own content-borrowing copyright issues), and all other games that have not seen a rerelease.

Quote (1stclass)
Unfortunately, there aren't any laws which allow even de facto legalization as the games become old and out of demand. Regardless of the value of the copyrighted work there are still statutory damages for violating copyright which can be thousands of dollars. The defendant can also be forced to pay all legal fees if he loses. While the "lack of harm" may affect how hard companies will enforce their copyrights it barely makes any difference legally.


As you said, that does affect how hard companies will enforce their copyrights, as well as the sorts of relations they might want to maintain with ROM users.

In fact, in some cases, IIRC some game companies have been surprisingly friendly to the ROM scene. For one, I've read that Mother series creator Shigesato Itoi at least greenlighted (if not helped) the Mother 3 fan translation, though you could dismiss that as a special case (the Mother series has its own copyright issues anyway) and Itoi as being an oddball (which he has a reputation for being). I've also read that Sega looked to the Sonic series's ROM-hacking community for ideas for new Sonic games.

As I said before, game companies are generally quite aware of ROMs and ROM hacking. I theorize that they may be more friendly to them (than, say, the RIAA and MPAA are to music and movie/TV show pirating) because videogames have much less market penetration and are far from market saturation.

----

Now, coming back to my own post...this evokes memories. tongue.gif

Quote (me)
Which is why I now have my own policy about ROMs: I use ROMs to sample games.


And today I make even less use of this because I have too many other things to worry about and (sadly) less time to devote to gaming.

That, and especially with the prevalence of re-releases and remakes, I feel that it's my responsibility--especially if I effectively got to play it for free--to promote it as much as possible. This especially applies to less well-known games--the farther they are from market saturation, the more effective I can be as an independent voice encouraging people to consider a game in question, and the more potential sales there are to be gained in fact from my playing the game for free.

And considering that I would otherwise simply not have bought their game anyway, as I have little time and little disposable income...yeah, I'd say this is a win-win.

Quote (me again)
That said, if anyone wants to sell any of the following games, feel free to send me an e-mail naming a price:

Final Fantasy Tactics
Final Fantasy Tactics Advance
Metroid Zero Mission
Metroid Fusion
Castlevania: Circle of the Moon
Castlevania: Harmony of Dissonance
Castlevania: Aria of Sorrow
Mega Man 6 (NES)


For what it's worth, I still haven't bought any of these. It's actually rather funny that I haven't actually played FFT--well, apart from the very beginning. So this isn't even about game sampling, or using ROMs/ISOs; I just want the game. That said, I've been wondering whether I should get a PSP so that I can play the newer and reportedly better-translated version.

In the meantime, I have bought several other games that I first played on emulators. And if you're going to complain that my purchases were used, well, I introduced Scurge: Hive to a friend, and he played the ROM, then went out and bought a real official hard copy, new.

Quote
Firstly I just want to say I'm responding to Tonepoet more than anything here. Like people have correctly said, the law is not in stone, however anyone worth their salt knows where to look for indicators as to what a court would decide. Remember nobody buys games, they are licensed to us in a contract. Within this contract you're given statutory, common law and possibly 'constitutional' rights (I really don't know US law) as well as rights to IP within the agreement. No title or ownership passes in nearly every case.

Also, critically, there is a precedent concerning software use at s. 117 of the statute. MAI Systems Corp. v. Peak Computer, Inc. [also note this is post-Nintendo]. And unfortunately it basically derails your argument Tonepoet.

Since MAI licensed its software, the Peak customers do not qualify as "owners" of the software and are not eligible for protection under [s.] 117.

The court has interpreted the section to only apply to owners of the IP, not licensees. So going to what I was saying before, we don't own the property of the game we only have a license. The rights we get in the software do not extend that far. I don't know what Congress was intending with s. 117 and the definition of "copies" for that matter, and for all I know it could or has been overruled in a superior court.


I see.

Though, I wonder, if contract law can be said to apply to customers, can different legal status govern content producers? Is there a way to get Earthbound justified? Maybe if it were re-released stateside for free, after some number of years, justifying fair use of the other sources it draws from?

Finally, I do wonder, Tonepoet and sweetdude, are either of you lawyers or law students? Or just well-versed in this field? (I'm not asking to discourage you; I really enjoyed reading your posts.)

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I've also been reading through this, and must agree that it is quite an interesting topic. Some points I do note, and some attempted answers based on my legal rememberings:

Quote
Must the unauthorized copy be derived directly from the authorized copy? If not, then possession of unauthorized copies doesn't matter as long as the person in question possesses one authorized copy.


I would imagine that the fact that you have an unauthorised copy is enough to be in breach of the law. If it's unauthorised you have breached the licence, end of.

Quote
Any game released into the public domain is, by definition, legal to download or modify. However, unauthorized fan-games and translation patches are probably copyright violations.


I think the point being made here is that fan-games are in breach of copyright through their unauthorised use of copyrighted characters, locations, stories and graphics etc.

Quote
Suddenly, I'm wondering whether minors can own games if their parents bought the games for them....


If the parents bought the game and then gave it to a minor - we would have a situation where a gift was made of the game. Therefore ownership would be transferred to the minor.

I would love to comment further, but many points with which I would agree have already been made ahead of me...and I'm at work...

Suffice to say, one thing this thread has highlighted excellently is that copyright law is incredibly outdated and often incompatibly worded with many computing-related technologies - which is why this area of the law is currently such a mess!

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Posted: 26th April 2011 17:28

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Quote (Glenn Magus Harvey @ 26th April 2011 14:32)
Quote (Magicite)
Any game released into the public domain is, by definition, legal to download or modify. However, unauthorized fan-games and translation patches are probably copyright violations.

Wouldn't the fan-games themselves be legal, but then the coexistence of patches and fangames not be (assuming that you can derive the original game from the fangame by reversing the patch)?

Alternatively, if we're going to note that the framework of the fangame--including the game physics (or its basis), script (or its basis), graphics (or their bases), and other gameplay features (or their bases)--are the copyrightable work of the original creators of the (original) game, then perhaps we could say that the unique design features of the hack are legal--and even copyrightable by the ROM hackers--but that it's just that such details cannot be played legally unless a ROM of the original game can be acquired legally.

I'd like to add a bit to Stiltzkin's response, which I totally agree with.

Generally speaking public domain means intellectual property rights have expired, which could be for a number of reasons. So there's no claim to be made against someone under IP rights. Again, the license of use is the best grounding for knowing what you can and can't do. A lot of the time it will expressly say no to any creative adaptation.

Your point about uncopyrighted material being adapted is interesting. I couldn't give you any indication as to what the US holds is a creation of a copyright, however in Scots and English law the Copyright, Designs and Patents Act and the case of Hyperion Records v Sawkins is a good outlining. Essentially there must be effort, time and skill involved to create an original piece of IP, and "literary work" includes computer programs. So as far as I'm aware if you take a game that doesn't have any IP rights attached to it (very rare) and mod it to a sufficient level required by the criteria (not as straightforward as I think I'm making out) you'll have a copyright in the new product. If there truly is an original game IP invented by ROM hackers I have to wonder why they would put it into a copyrighted game and not their own work. Like I said before, if the new work ticks all the boxes and avoids the restrictions it will be copyrighted to the creator, unless that copyright passes to a company or agreed person as their employer or in any such similar scenarios.

Quote (Glenn Magus Harvey @ 26th April 2011 14:32)
Quote (MetroidMorphBall)
If you sold it or gave it away it could be argued that ownership was transferred in the same way you transfer ownership of a motor vehicle, and therefore you no longer own it. However, if the copy is "in storage or lost," and you never transfered ownership of the property to anyone else, then arguable you are still the owner of that copy and the download could be considered legal. Of course, showing that you ever owned the copy is entirely different, and harder to prove.

Suddenly, I'm wondering whether minors can own games if their parents bought the games for them.... The implications are...lulzworthy.

There is no ownership in it at all. If we all bought ownership to the IP we could do whatever we wanted with it. Parents agree to the license then transfer the contractual rights to their child, e.g. the right to use it in a PS2 or whatever.

Quote (Glenn Magus Harvey @ 26th April 2011 14:32)
Though, I wonder, if contract law can be said to apply to customers, can different legal status govern content producers? Is there a way to get Earthbound justified? Maybe if it were re-released stateside for free, after some number of years, justifying fair use of the other sources it draws from?

What do you mean here? If it was released for free it depends on what use the owner authorises. Contract law affects producers in exactly the same way, actually all the cases I've read are nothing to do with consumers, they're all companies or important individuals (designers and so on) licensing IP to each other, e.g. Atari v Nintendo.

Quote (Glenn Magus Harvey @ 26th April 2011 14:32)
Finally, I do wonder, Tonepoet and sweetdude, are either of you lawyers or law students? Or just well-versed in this field? (I'm not asking to discourage you; I really enjoyed reading your posts.)

Student, I'm more than breathing the course right now as I've got exams in about a month, nothing to do with IP unfortunately otherwise I'd be able to write more.

Quote
Suffice to say, one thing this thread has highlighted excellently is that copyright law is incredibly outdated and often incompatibly worded with many computing-related technologies - which is why this area of the law is currently such a mess!

Hear hear! Shoe-horning in amendments can only take it so far.

This post has been edited by sweetdude on 26th April 2011 17:49

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Posted: 27th April 2011 07:10

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when i first discovered the romulated gaming universe i studied the consequences and all i found was that its legal to download a copy of a game that you already own.
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^ Well, as has been explained above, not even the legal status of that is clear. I don't think there has yet been any lawsuit involving ROMs (or similar items such as ISOs), their distribution, their use, or anything of the like, unlike how we've already had cases involving music and movie piracy, so we really don't know how the courts will interpret existing statutes.

Those law students and lawyers among us should correct me if I'm wrong about this.

This post has been edited by Glenn Magus Harvey on 1st May 2011 00:59

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