Is an archival copy the same thing as a backup? Also legality stuff

[DiscostewSM]

Just had a rather fiery argument with a couple of people on another site claiming that an archival copy is the exact same thing as a backup, but based on my research on the internet, it is not. From my understanding, an archival copy is closer to a copy of the original that isn't actively used, like a reference or a proof of purchase, and that a backup is more of an active copy that is used on a more regular basis.

The argument came about regarding the scenario with Nintendo taking down Youtube channels that were doing TAS runs, that they were likely using emulators and ROMs. So the discussion jumped into ROM legality, with the people stating that you're allowed to not only make a backup of the game, but that you can use it as well. I referred to Title 17 Section 117 of the US Code (I know, not everyone here resides in the US) saying that only an archival copy can be made, and so went the argument between archival copy and backup, including various other things like Nintendo's legal terms that states that you cannot make or play unauthorized copies at all.

So, are they the same, and what about the legality of ROMs that you dump yourself?

 

[FAST6191]

As ever trusting someone's interpretation of the law when they have everything to gain, especially one with Nintendo's history ( http://articles.sun-sentinel.com/1989-08-13/business/8902250572_1_nintendo-blockbuster-video-games ). In these scenarios Nintendo would usually claim their cart/disc replacement services are robust enough that you do need to take such measures yourself, I believe that about as far as I can throw it and if they are not going to replace things for the length of copyright (there is a decent chance many of us will probably not live to see our childhood games go copyright free)....
Equally I am not sure those terms work.... and, like, that is more just Nintendo's opinion, man.

Games are also somewhat interesting under the law ( http://www.swlaw.edu/pdfs/lr/42_2humphrey.pdf is mainly about second hand games but covers various laws, rulings and such over the years) and that is where the trouble will come in. First up would probably be whatever remains of the DMCA (it is still around but substantially defanged compared to the original law) and if you have to bypass protection to get (not sure about use) this backup.

Archival vs backup. I am not aware of any cases that attempt to define a difference in the law, that said everything I have ever seen usually looks more at the DMCA or something further back like Sega vs Accolade ( http://digital-law-online.info/cases/24PQ2D1561.htm ), or possibly further back Atari Games Corp. v. Nintendo of America Inc. (same thing as Sega vs above really but as Atari pulled a fast one and effectively obtained an unauthorised copy of Nintendo's code it tainted the results).
Your active use vs whatever definition is probably similar to the one I would hold as a technical person -- someone calls me up and tells me that they want an archive system and that is what they will get, from a legal perspective then I would say it is much of a muchness though depending upon what goes then not keeping the original/proof of purchase under lock and key is perhaps not the safest method. The only problem I have there is most of what I would do there is for business and business software has the same laws governing it but between accounting, proof of purchases, companies that actually care to audit things (it is common enough to have a person in IT for a company that does nothing but ensure license compliance, though if you ever read the higher end Microsoft or, worse, Oracle licensing agreements then that is not as strange as it sounds) and more besides it gets tricky to compare it to games which most companies only care about pirating when it involves someone selling dodgy discs down the market.

So yeah I have said a lot and probably not offered anything other than more questions. I still say Nintendo are being dicks though.

 

[Taleweaver]

Interesting thought (on a backup issue, no less! ).

My first impression when reading the first sentence was "well, duh! Potato, potatoe...of course they're the same!". But it's at the very least a very interesting follow-up.

I'm still thinking that way, but I've got this question I have to ask: "why would it matter if the backup is actively used or not?".

Take RAID 5. This has a backup system. You can point out that it has X hard drives, of which ones serves as a backup. However, it's a bit more complicated than that, as the 'backup' part of that one drive isn't physically on one hard drive but divided over all the drives (just check this picture if this sounds too confusing). Now...the backup functionality is certainly there, but you certainly can NOT say it's used for an archival copy.

Programmers and testers also make plenty of backups before fiddling with the original. While you can claim it is an "archival copy" at that point, it's in no way intended as such (more of a fallback or safety net).

And let's not forget the elephant in the room: pirates use the word "backup" totally wrong. The whole "my dog might eat my discs and I purchased them so I'm entitled to a backup of my CD!!!!!" thing is cute but, in the end, just bullshit. At the very least, if something happens to the original (like...not ever been within a 200 mile radius of your home), the term "backup" is no longer correct (if it ever was).


But okay, let's forget that elephant for this thread (I've seen them enough in other threads). Let's say you make a perfect backup (certainly within ICT, this is relatively easy to accomplish). The very word 'copy' means that both are (near)-identical. It shouldn't matter which one is the original, since they are equal. They should both work.
Say I have this original wii game, and I want to play it on USB rather than on disc. So I rip it. I now have both a working game on USB as on disc. The way I see it, I can use my backup (the USB-data) as if it were the game itself, and keep the original disc as the archival copy.
I have to stress the "The way I see it", though. The ones you've been discussing with, @DiscostewSM, will probably point out that the very fact that I have both a version on USB as on disc, and that they are therefore different (and therefore not allowed). It's certainly a legal argument, though I don't know if it's in force in this region (or in the US, but TBH, I don't care much about copyright laws in other countries).

 

[Muffins]

If you want to talk pure legality, TaleWeaver, most digital copyright law centers around the data stored on a medium, and less the medium itself. As far as I am aware, the archival clause in copyright law operates under the assumption that what is being copied in terms of data remains binary-identical to the original copy. It's a clause that was enacted because the data storage media of the day (5 and 8 inch floppies) was notoriously unreliable. A person would not want to buy a $500 copy of a program and suddenly have it vanish because of a stray magnetic field.

In terms of the spirit of the law, you are only legally supposed to have one "active" copy at a time; what this means is that when you make your backup copy, you are supposed to take that backup and put it someplace safe just in case something happens to the original.

DiscoStew, I would advise not to get too heated up about arguments on GameFAQs. That place is... terrible.

 

[TecXero]

Unfortunately, that was created in a different age and leaves too much to interpretation. At least enough to where someone with a lot of money could bend things their way. Until a major case occurs involving it or someone pushes for it to be updated, that's how it will be. In the meantime, if you're dumping your own games, then I think you're morally fine. I also doubt you'll be pursued over all the blatant pirates that exist. Assuming anyone actually takes the time and money to try to pursue pirates.