Piracy, what is legal?

Discussion in 'NDS - Emulation and Homebrew' started by Grimalkin, Dec 15, 2007.

Dec 15, 2007

Piracy, what is legal? by Grimalkin at 8:56 PM (8,040 Views / 0 Likes) 47 replies

  1. Grimalkin
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    Member Grimalkin Waaaaaaaah!

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    Piracy, what's legal and what's not By no means should this document be used as a legal reference in court
    Things to do (or in the process of researching): Patents, Trademarks and Emulators
    This document is deemed public domain and can be reproduced, or altered freely by anyone. If you have any other information that discredits or contradicts information in this document, PM me on GBATEMP and we'll discuss which has more credibility and I'll add it into this document.

    This is a simple report that I have researched (and used a lot of my work time to complete) in order to stop the f**king flaming in stupid legality battles over GBATEMP. This thread is meant only for discussion of facts and is not up for debate. Data used will be facts and not personal opinion. I am by no means, a legal expert and is only interpreting data obtained via internet or by publication.

    So, how do we know if it is copyrighted?

    In 1952, most, if not all major developed countries met at Geneva and agreed, accepted of acceeded to the Universal Copyright Convention; However, since most of the nations are now part of the World Trade Organization (WTO), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) had been accepted as the international agreement which is now dominent for all nations globally. The TRIPS outlined requirements that each nation's law must meet, such as: copyright rights (including rights of performers, producers of sound recording and broadcasting organizations), geographical indications, integrated circuit layout-designs, patents, monopolies for the developers of new plant varieties, trademarks, trade dress, and undisclosed or confidential information.

    A TRIPS member requires their states to provide strong protection for intellectual property.
    How to tell if your country is a TRIPS member: your country trades to the United States. Unless under certain circumstances such as war, financial and/or poverty aid.

    -Copyright terms must extend to 50 years after the death of the author, although films and photographs are only required to have fixed 50 and to be at least 25 year terms, respectively.(Art.7(2),(4))

    Also note that Anonymous work will expire 50 years after the work was deemed public.

    -Copyright must be granted automatically, and not based upon any "formality", such as registrations or systems of renewal. (Wait, does that mean this article is copyright too?)

    Apparently if the original author dies, the copyright is automatically transferred to closest relative and/or publications office (for another 50 years). I'm not actually sure about this one, but I'll find some sort of source for it later...

    -Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.

    -Patents must be granted in all "fields of technology," although exceptions for certain public interests are allowed (Art. 27.2 and 27.3 [1]) and must be enforceable for at least 20 years (Art 33).

    -Exceptions to patent law must be limited almost as strictly as those to copyright law.

    -In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPs signatories by the principles of national treatment (with certain limited exceptions, Art. 3 and 5 [2]).

    This is Article 10 (obviously) from the WTO Official Text, which signifies all work/code/compilations/etc. are considered as literary works. What does it mean? Wait, what does it mean...

    If we look at the Berne Convention on literary works:

    The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright, which was first adopted in Berne, Switzerland in 1886.

    So under the Berne Convention would cover all aspects of the media, such as: music, graphics (including Three-Dimentional Works), and the coding itself (regardless if it were in machine readable code, meaning the product in it's entirety).

    Since the Berne Convention is gigantic, I'll let you guys decide what else is important. Berne Convention Reference In summary, all aspects of the media (which would include ROMs) is held under copyright. Also...

    And by "work" we mean...

    So, we can't even record the sound or images (means video too) of the "work". So, if one were to make a video of the game, record sound from it, or take pictures, we'd be doing something illegal. Even more legal trouble if we try to broadcast it (via spoken, loadspeaker, or through wired-broadcast [including the internet]) we'd be in even more trouble. I'm also assuming that ROMs would fall under accordance to the Berne Convention as a recording of the original publication, which would mean: ROMs are illegal. However, I have yet to uncover anything about owning a copy and making a backup of the original publication(s). But, this would definitely be a loophole a lawyer in court would use against you. The Berne Convention takes priority before the TRIPS (because it was based accordingly to agree with the Berne Convention).

    Now back to the WTO and TRIPS...

    Wait... so the original publication can be prohibited from rental? I never knew that. But... the last sentence is a contradiction to the previous statement, how do we deem what's "essential" to the rental or not?

    Well, I guess I found my answer to my previous inquiry about the expiration of the copyright. So, 50 years is the minimum term of protection, what about the maximum? Such information is not answered in either Berne Convention or WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights.

    End: Copyrights

    ROMs, are they legal?

    ROMs by itself are not illegal (well, not exactly)..

    In some countries, it is legal to make a "backup" copy of the original work. However, this backup cannot be used for entertainment purposes. This copy is to be used to prove that you own the game as an insurance against the original publication owners if the copy of the media is unreadable. In short, if the label falls off of your game cart, it breaks and you try to get a warrenty claim for it, but you can't prove that you owned it originally.

    But, guess what?

    In the United States, since 1983, it is illegal to make backup copies of video game media to other game cards (Sigh... flash cards). Which was the main precedence in the court case of Atari versus JS&A that their product allowed to create a ROM backup copy to a blank cartidge. In this battle JS&A argued that their product was used for archival purposes only, but the court disagreed, noting that ROM media was not subject to the same volatility as magnetic media.

    Poor US, but what about the rest of the world? Still, no luck for anyone...

    All manufactured software contains a End-User License Agreement (EULA). This document takes precedence above all media laws because it is a document that deems "fair-use" which is created by the "copyright owners" (See: So, how do we know it's copyrighted?). In most cases (if not all of them, and especially Nintendo), they print inside their game manuals that they disallow backups or archival copies.

    After looking through a few of my legal media: Yeah, it's all there, and in normal print too. Now, whether these printings are valid through legal clause in terms of fair dealing; Not sure, but I personally don't want to bring them to court about it. Cases against copyright owners usually favor the copyright owner.

    The 24-Hour Claim

    Some websites claim that you may obtain ROMs for exactly 24-hours and is deemed "fair use". This claim is completely, and undeniably false. There has never been such a law.

    Officially Licensed, Freely Licensed and Unlicensed ROMs, Oh my!

    Now, there are some ROMs that have been officially licensed. Atari had made many of their original arcade games available in ROM for to work on the emulator MAME. Nintendo also provides a similar service on their Virtual Console. These are "legal" ROMs.

    Freely Licensed ROMs are games/media that is no longer manufactured. However, they only become freely licensed when the original copyright owner announces that the media is "freely licensed" or the copyright holder(s) die and the Terms of Protection officially end (by end of calendar date of 50 years after the death(s)). Freely Licensed ROMs also include Homebrew.

    Unlicensed ROMs are games that no longer make any profit and/or no longer able to be obtained in legal form. Legality varies between many countries; however, non-commercial and research use is permitted and legal. Still, some countries ensure that this practice is illegal, downloading abandonware is in vast majority, legal. In fact, there's no law about it in any North American convention!

    That said, the legality of some of the NES, GB, SNES and older systems of the 80s and 90s would be legal. However, the games that can be obtained (whether or not it's for the same console) is still illegal. Games such as Super Mario World, which can be obtained on the GBA, would be still illegal -- downloading (note: I did not say distribute) games such as Final Fight, or E.V.O. would be legal until the copyright owner brings the game back into circulation. Unless, the copyright holder states that you are not allowed to download such ROMs. (Yay for loopholes).

    Also relevant:

    And also:

    So, I took a look into the previous quote from Wikipedia, apparently, we cannot sell media that we own. It is deemed commercial distribution and very illegal by copyright standards. Which is also funny, what if we trade in our games at a GameStop or EBGames? Technically, that would be commercial distribution on the consumer end. (Who knows, I'll add that to my list of things to research).

    End of Document: I'll add patents, trademarks and emulators later, but I'll tell you something before I post it. Emulators are illegal, regardless of it's purpose and how the end-user uses the software. (Unless it was created by patent/copyright holder and licensed)

    REFERENCES:
    The WTO official text, retrieved via internet, Dec 15, 2007, http://www.wto.org
    The Berne Convention Cross-Reference, retrieved via internet, Dec 15, 2007, http://www.law-ref.org/BERN/index.html
    Nintendo's Intellectual Property FAQ, retrieved via internet, Dec 15, 2007, http://www.nintendo.com/corp/legal.jsp
    10 Big Myths about copyright explained, retrieved via internet, Dec 15, 2007, http://www.templetons.com/brad/copymyths.html
    Copyright FAQ: 25 Common Myths and Misconceptions, retrieved via internet, Dec 15, 2007, http://users.goldengate.net/~kbrady/copyright.html
     


  2. Jackreyes

    Jackreyes Newbie

    Nice to know.
    Well done.

    So we now know what is legal and what isn't,
    the question is... is anyone here going to take any notice?
     
  3. Grimalkin
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    Member Grimalkin Waaaaaaaah!

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    Probably not, but now we know it's set in stone here at gbatemp.
     
  4. BoneMonkey

    Banned BoneMonkey The cheese stash is a lie.

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    your just tring to justifing stealing games

    and you are wrong ROMS ARE ILLEGAL
     
  5. Grimalkin
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    Member Grimalkin Waaaaaaaah!

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    Read the fucking article, or stfu.
     
  6. Sinkhead

    Former Staff Sinkhead yay p1ngpong.

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    Nice article, I'm looking forward to further research...

    - Sam
     
  7. Jackreyes

    Jackreyes Newbie

    I agree Grimalkin...
    he should read before posting
     
  8. xJonny

    Member xJonny ...

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    Yeah, basically people try to hide the common sense with bs like the 24-hour fair-use period and that its legal to use backups etc but its obvious you can't really get around law

    Note that some games that might seem like abandonware are protected by the ESA
     
  9. Grimalkin
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    Member Grimalkin Waaaaaaaah!

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    Of course, if you actually take 5 minutes to read the initial summary of the Berne Convention, there's a lot of information there (if you can think about how it would be used in a courtroom) that signifies how illegal game backups are. Also, read the last reference link, there's a lot of misconceptions that this guy outlines, I emailed him a few times during my research to get some information(although he never replied, I got enough information from his webpage). The link itself is mainly for the united states, but I doubt it would be different globally (if you think logically).
     
  10. jumpman17

    Former Staff jumpman17 He's a semi-aquatic egg laying mammal of action!

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    Thank you so much for including the 24 hour rule. It drives me nuts when people say that.
     
  11. Urza

    Member Urza hi

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    Incorrect.
     
  12. cruddybuddy

    Banned cruddybuddy Group: Banned!

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    I agree. I hate it when people try to make me feel like I'm not breaking the law.
     
  13. Grimalkin
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    Member Grimalkin Waaaaaaaah!

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    Why emulators are illegal will be explained in my next section.
     
  14. xJonny

    Member xJonny ...

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    Yeah, I scan read through it [​IMG]
     
  15. Urza

    Member Urza hi

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    The ruling on MGM vs Grokster is pretty unclear. Emulators have substantial legal uses and most of the developers aren't helping the end-user conduct copyright infringement, nor are they actively advertising the software.
     
  16. Grimalkin
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    Member Grimalkin Waaaaaaaah!

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    True. But don't get all conclusive yet, like I said before. It'll be explained later, after I gather all the facts about patent laws.

    EDIT: Anyone notice how I never used the DMCA as a reference yet? Stupid useless law. Well, not useless, I just can't find use for it globally.
     
  17. lil-devil

    Member lil-devil GBAtemp Regular

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    didn't exaclty go though your whole post, but the information i read, i do agree with it and believe it's true
    and good job man =)


    PS: whats DMCA >_>;
     
  18. Grimalkin
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    Member Grimalkin Waaaaaaaah!

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    The Digital Millennium Copyrights Act, it's a bill that was passed in the united states before 2000. Also, it seems that the American government is pushing the Canadian Government to create a similar bill of the same name.
     
  19. Opium

    Former Staff Opium PogoShell it to me ™

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    You can download a .doc copy of my paper HERE.
     
  20. golden

    Member golden What a Digital Dummy!!!

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    Thank goodness someone else has done their homework. Nice job Grimalkin, now I know there is someone else and others reading that will learn these important facts.
     

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