Homebrew Piracy, what is legal?

[Grimalkin]

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.

I don't want to take all the credit, I merely read through what was important. There's a lot more I could have found out about these issues, and I'm probably going to continue to do so.

 

[Kingwad]

The title cracks me up... Piracy, what is legal!
Mail fraud, what is legal...
Break and Entering, what is legal...

...Wait... I didn't read the whole thing... is it legal for me to fly my pirate flag on my car?

Seriously this article (which I did read, btw, and you did NOT mention my pirate flag) should be a sticky must read here. Some people just don't get it that piracy is illegal. The "But I can't afford real game!"s that always justify their piracy really need to learn that "I can't afford it" often means "Buck up and live without it."

You do not have the right to play all the best games for free. If the poor can get everything for free, what's the motivation for getting rich?

 

[Lukeage]

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.

Not true in Australia. EULAs are invalid here unless they are presented before the purchase (so pretty much never for software since you have to open the package). Any contract presented after the point of sale is invalid.

 

[Grimalkin]

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.

Not true in Australia. EULAs are invalid here unless they are presented before the purchase (so pretty much never for software since you have to open the package). Any contract presented after the point of sale is invalid.

Well, since Australia also agrees with the Berne Convention and WTO's TRIPs, the EULA can still be enforced by the copyright owners in court. In Australia, the copyright owner's have "exclusive rights" that are much more strict than other countries -- infringement of those exclusive rights will occur if you do not adhere to the copyright owner's terms of fair use (which are usually detailed in their EULA and/or website).

Also, Australia has amended the WIPO Internet Treaties and the Us-Australia Free Trade Agreement. The new FTA also outlines a similar function of the DMCA in the United States.

 

[Lukeage]

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.

Not true in Australia. EULAs are invalid here unless they are presented before the purchase (so pretty much never for software since you have to open the package). Any contract presented after the point of sale is invalid.

Well, since Australia also agrees with the Berne Convention and WTO's TRIPs, the EULA can still be enforced by the copyright owners in court. In Australia, the copyright owner's have "exclusive rights" that are much more strict than other countries -- infringement of those exclusive rights will occur if you do not adhere to the copyright owner's terms of fair use (which are usually detailed in their EULA and/or website).

Also, Australia has amended the WIPO Internet Treaties and the Us-Australia Free Trade Agreement. The new FTA also outlines a similar function of the DCMA in the United States.

While I'm not making a blanket statement to cover the entire EULA validity, since we are talking backups:

"The back-up copy may be made whether or not the copyright owner makes an express direction to the contrary at
or before the time of purchase, for example on the package."

As stated in the latest downloadable document from the Australian Copyright site. (Link (pdf))

So this goes even further than I had originally thought.

Now I have ignored for now the previous part which says:

"Also, the provisions do not apply if the licence governing the use of the original has expired or been terminated."

Now the EULA state the conditions to terminate the license, and this might be upheld, but unless someone can point to me something to the contrary, under Australian Contract Law (which is where the EULA falls, not Copyright) any additional terms and conditions may not be presented after the point of sale, unless stated in a previous contract.

As with a lot of these things, it really comes down to interpretation of the law (and having a good laywer).

 

[vincom2]

Doesn't 17 USC 117 state that an end-user has the right to make archival copies of software he legally owns? The EULA is illegal if it contravenes the law.

I believe RIAA v. Diamond is precedent that shifting things you purchased in a certain format to another format is legal.
And Sony v. Connectix seems to permit emulation, at least from my cursory skimming.

 

[Trolly]

This is useful stuff to take note of, so thanks for making it clear what's legal and illegal. (Or kind of clear, though everyone else seems to be disagreeing).

 

[Grimalkin]

This is useful stuff to take note of, so thanks for making it clear what's legal and illegal. (Or kind of clear, though everyone else seems to be disagreeing).

I noticed some discrepancies from the notes I took while making this document and the ones I have now (which may or may not affect all of you). I'm going to eventually finish this though and add in whatever I missed or wasn't clear on.

 

[Jaejae]

I just re-read this, and even with an EULA explicitly stating that I cannot make a backup, in a New Zealand court, even with the shittiest defense lawyer, no jury will convict you for making a backup, because while an End User License Agreement may override local laws (I'm unsure whether it does or not here), NZ law dictates that I can make a backup.

I have no idea whether this is true for other countries, so only apply this to NZ

 

[RobbieTheStiff]

And also:

Commercial distribution (Taken from Wikipedia)

Commercial distribution of copyrighted games without the consent of the copyright holder is generally illegal in almost all countries, with those who take part in that activity being liable for both criminal and civil penalties.

Online auction sites such as eBay have sometimes been used by sellers to sell unauthorised copies of games which are advertised as legitimate copies. Such sellers, in addition to violating copyright laws, may also be prosecuted for fraud and/or false advertising.

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).

Couple of things I noticed --

Generally speaking, I think EB or GameStop would have no trouble obtaining consent from the copyright holder if that issue ever came up, or for that matter any retailer that was obtaining their products from legimate sources and of course following any other applicable laws regarding retail practices. And I don't think they need explicit consent from the copyright holder either -- e.g. a document from the copyright holder specifically stating that they are allowed to sell a specific copyrighted work. Can you imagine the amount of effort that would be required by both the copyright holder and the commercial distributor to ensure they had explicit consent to distribute every single copyrighted work they sold? Although it is possible that at some much higher level, both parties would have some sort of agreement in place that covers this area. I think the reason why we need such protection in place is to ensure the copyright holder is properly compensated for the sale of their work - but as mentioned before, in typical above-the-board retail practices this would normally occur, although maybe not at the retail level.

Secondly, I doubt trading/selling/buying used games, because they are originals and not copies would raise any legal red flags. I think the important part to note there is the mention of "unauthorised copies". Obviously people selling pirated/counterfeit copies of game or other software as legimate versions are on the wrong side of the law. However, I think what is trying to be said is that since you are not the original copyright holder, you don't have the right to profit from the sale of the copyrighted material. In that case, you might argue that what is being bought or sold is the rights of ownership to the media, or the media itself, as opposed to the copyrighted material contained within. But I don't know if the laws allow for such a distinction to be made...

 

[Sonicslasher]

o lawdy, who let the dogs out!

 

[Rayder]

I know ROMs and emulators are illegal, but I don't really care. Free better than pay, especially when you can't take a game back if it sucks or doesn't run in your PC. At least I don't feel so bad if I DL'd it and doesn't work. I'd rather delete a downloaded file than lose $30-$60 of my cash.

I'm not trying to justify my actions, but like I said, I don't really care what people think. Waste your money if you want, I refuse to to do that. I spent enough years of my life wasting money on suck games. No more! I feel much less burned by slurping up a suck game for free than wasting my money on them.

Fine me! You can have ALL my pocket lint. Put me in jail, threaten me with 3 square meals a day and a guaranteed roof over my head! Oh! The horror! Take all my stuff, most of it is my brothers anyway.

The way I see it, they don't want me DL'ing copyrighted stuff off the net? Take those sites down that let me get what I want with a mouse click. Shut down the file hosting sites then. Don't come to me whining and threatening and prosecuting me for copyrights.

It's THEIR (the "man's") fault for giving the general public the ability to do such things (PC's). Now that it's biting them in the ass, they want to whine about it and call our actions criminal. WAHHHH! I think it's criminal to charge so much for games they KNOW are derivative or just plain suck.

It's up to them to stop me from being able to slurp them up for free, not hassle me when I see a link on a website and take advantage of it.

 

[Grimalkin]

Generally speaking, I think EB or GameStop would have no trouble obtaining consent from the copyright holder if that issue ever came up, or for that matter any retailer that was obtaining their products from legimate sources and of course following any other applicable laws regarding retail practices. And I don't think they need explicit consent from the copyright holder either -- e.g. a document from the copyright holder specifically stating that they are allowed to sell a specific copyrighted work. Can you imagine the amount of effort that would be required by both the copyright holder and the commercial distributor to ensure they had explicit consent to distribute every single copyrighted work they sold? Although it is possible that at some much higher level, both parties would have some sort of agreement in place that covers this area. I think the reason why we need such protection in place is to ensure the copyright holder is properly compensated for the sale of their work - but as mentioned before, in typical above-the-board retail practices this would normally occur, although maybe not at the retail level.

Secondly, I doubt trading/selling/buying used games, because they are originals and not copies would raise any legal red flags. I think the important part to note there is the mention of "unauthorised copies". Obviously people selling pirated/counterfeit copies of game or other software as legimate versions are on the wrong side of the law. However, I think what is trying to be said is that since you are not the original copyright holder, you don't have the right to profit from the sale of the copyrighted material. In that case, you might argue that what is being bought or sold is the rights of ownership to the media, or the media itself, as opposed to the copyrighted material contained within. But I don't know if the laws allow for such a distinction to be made...

Well, they never explicitly define what are the fair terms for this purpose. That's why I included it in the document, unless someone can quote me in that specific regard to how someone can fairly trade their original copy, then the document would be correct. (I do hope that someone else will take interest in this topic and contribute, so this may be something you can add into the topic.)

@Rayder: Watch the movie: Steal this Movie I/II; Distribution of information is life, and would not exist without it. Language, behavior, instincts, we all copy it from another person. By technicality purposes, piracy is another form of distributing information and no company can stop it.

 

[Jaejae]

Companies can try and stop piracy, but it sure as shit isn't working.

 

[quinterrya]

Piracy might be illegal, but you would be surprised how much money is made from it than lost. Internet Providers, Newsgroups, Duplicator Companies, Modchip Providers, Flash Cart Sells, DVD/CD Media and Media Storage Device have all seen an increase in sells and profits because of piracy.

The RIAA or any other anti-piracy company can easily make an example out of a few websites and people, but that's just to make the society think about piracy.

 

[RobbieTheStiff]

Piracy might be illegal, but you would be surprised how much money is made from it than lost. Internet Providers, Newsgroups, Duplicator Companies, Modchip Providers, Flash Cart Sells, DVD/CD Media and Media Storage Device have all seen an increase in sells and profits because of piracy.


Hard to argue with that, but the people who don't benefit are the ones who are actually producing the material being pirated, and they're the ones that are crying foul.

I don't see modchip manufacturers complaining that they have lost money because of pirating ...

I know ROMs and emulators are illegal, but I don't really care. Free better than pay, especially when you can't take a game back if it sucks or doesn't run in your PC. At least I don't feel so bad if I DL'd it and doesn't work. I'd rather delete a downloaded file than lose $30-$60 of my cash.

In a lot of cases there are demos for PC games you can either download for free off the internet, or get bundled with a magazine. Even the latest gen consoles have downloadable demos, including the DS (although very limited). And of course rentals are another option, although you do have to pay a little bit more up-front. But at least if you don't like the game, you're not out $30 - $60 like you said.

There have been occasionally the odd game that is broken straight out of the box, e.g. SNK vs Capcom Card Fighters on DS, or Guitar Hero for Wii. But a few minor exceptions hardly justfies piracy... which leads to -->

I'm not trying to justify my actions, but like I said, I don't really care what people think. Waste your money if you want, I refuse to to do that. I spent enough years of my life wasting money on suck games. No more! I feel much less burned by slurping up a suck game for free than wasting my money on them.

Actually, justifying your actions is exactly what you're trying to do, at least by what you've written here.

Just saying, let's call a spade a spade -- if you pirate, then at least be honest about it and don't try to hide behind what you consider justification for it.

The way I see it, they don't want me DL'ing copyrighted stuff off the net? Take those sites down that let me get what I want with a mouse click. Shut down the file hosting sites then. Don't come to me whining and threatening and prosecuting me for copyrights.

I think the studios/publishers really are trying to help in this area -- the major American networks allow you to watch previously-aired episodes of popular TV shows on their websites for free (although only if you live in the US), and for games there are great services like GameTap or Steam on the PC, XBOX Live Marketplace, etc. And I'm pretty sure there are movie download services now as well? Haven't looked into it...

QUOTE(Rayder @ Jan 14 2008, 05:01 PM)

It's THEIR (the "man's") fault for giving the general public the ability to do such things (PC's). Now that it's biting them in the ass, they want to whine about it and call our actions criminal. WAHHHH! I think it's criminal to charge so much for games they KNOW are derivative or just plain suck.

It's up to them to stop me from being able to slurp them up for free, not hassle me when I see a link on a website and take advantage of it.

At the end of the day, if you're pirating because you don't want to pay for something when you can get it elsewhere for free, then just say it. Theres nothing inherently wrong with that attitude -- shopping around for a better deal is one of the things that drives a free market economy -- but of course if "getting it for free" involves some kind of illegal activity, you should at least be prepared to accept the consequences.

Sinkhead Edit: Double post merged.

 

[RobbieTheStiff]

I know ROMs and emulators are illegal, but I don't really care. Free better than pay, especially when you can't take a game back if it sucks or doesn't run in your PC. At least I don't feel so bad if I DL'd it and doesn't work. I'd rather delete a downloaded file than lose $30-$60 of my cash.

In a lot of cases there are demos for PC games you can either download for free off the internet, or get bundled with a magazine. Even the latest gen consoles have downloadable demos, including the DS (although very limited). And of course rentals are another option, although you do have to pay a little bit more up-front. But at least if you don't like the game, you're not out $30 - $60 like you said.

There have been occasionally the odd game that is broken straight out of the box, e.g. SNK vs Capcom Card Fighters on DS, or Guitar Hero for Wii. But a few minor exceptions hardly justfies piracy... which leads to -->

I'm not trying to justify my actions, but like I said, I don't really care what people think. Waste your money if you want, I refuse to to do that. I spent enough years of my life wasting money on suck games. No more! I feel much less burned by slurping up a suck game for free than wasting my money on them.

Actually, justifying your actions is exactly what you're trying to do, at least by what you've written here.

Just saying, let's call a spade a spade -- if you pirate, then at least be honest about it and don't try to hide behind what you consider justification for it.

The way I see it, they don't want me DL'ing copyrighted stuff off the net? Take those sites down that let me get what I want with a mouse click. Shut down the file hosting sites then. Don't come to me whining and threatening and prosecuting me for copyrights.

I think the studios/publishers really are trying to help in this area -- the major American networks allow you to watch previously-aired episodes of popular TV shows on their websites for free (although only if you live in the US), and for games there are great services like GameTap or Steam on the PC, XBOX Live Marketplace, etc. And I'm pretty sure there are movie download services now as well? Haven't looked into it...

QUOTE(Rayder @ Jan 14 2008, 05:01 PM)

It's THEIR (the "man's") fault for giving the general public the ability to do such things (PC's). Now that it's biting them in the ass, they want to whine about it and call our actions criminal. WAHHHH! I think it's criminal to charge so much for games they KNOW are derivative or just plain suck.

It's up to them to stop me from being able to slurp them up for free, not hassle me when I see a link on a website and take advantage of it.

At the end of the day, if you're pirating because you don't want to pay for something when you can get it elsewhere for free, then just say it. Theres nothing inherently wrong with that attitude -- shopping around for a better deal is one of the things that drives a free market economy -- but of course if "getting it for free" involves some kind of illegal activity, you should at least be prepared to accept the consequences.

 

[fateastray]

I read on this forum, yesterday, about a guy who actually asked SONY about making copies.

If, you own a game, like FF8 for PC, you own, in fact, a licence to play it. Thus, when like CD3 is damaged, you are actually allowed to download CD3. Legally Allowed.

Well, that's the answer SONY gave that guy..

I have no proof or a quote, I just read it...

(admit your piracy like a man!! Ore wa kaizoku ou ni naru otoko da!!!)

 

[Talaria]

Interesting read its nice to know whats legal and whats not. Its good to know us pirates can't justify ourselves. But how bad does piracy have to be to land you in court? If they investigated all of my students at my school and searched there houses the majority would have some form of pirated "Intellectual Property". Whether it be chipped consoles, emulators on the computer, a disk with ripped movies or tv episodes or several to thousands of pirated songs on ipods. The same would be for many work places, school's and cities. Piracy is well widespread and if they really tried they could proabably convict half of my country for having or making pirated "Intellectual Property".

 

[Perseid]

I hesitate to revive such an old thread, but it was linked to in a recent post, so here I go:

Emulators have been shown to be legal in multiple court cases:

http://en.wikipedia.org/wiki/Virtual_Game_Station
http://en.wikipedia.org/wiki/Bleem

Carrying the Grokster argument to this is thin at best because there are definitely legitimate uses for emulators that are entirely legal. Also, if I recall, one of Grokster's main problems was that they basically advertised their service as a way to get free music. That is why they were found to be enablers for illegal file sharing.