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MAME and legality-who decides what's legal to play?...


ataridave

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Yes, that's covered under fair-use. Specifically it's a backup copy, though I suppose it could also be considered format-shifting. Either way, both have been recognized as valid fair-use defences.

 

To qualify to the letter of the law, you'd need to download/transfer the roms from your licensed media, rather than some rom site.

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Yes, that's covered under fair-use. Specifically it's a backup copy, though I suppose it could also be considered format-shifting. Either way, both have been recognized as valid fair-use defences.

 

To qualify to the letter of the law, you'd need to download/transfer the roms from your licensed media, rather than some rom site.

 

It's not just fair use, there's a specific exemption for computer programs. From my reading of the law (IANAL) if you own "a copy", you are authorized to make "another copy" for use on "a machine". Nothing in the law states that you have to make that other copy from the copy you own.

 

So as a downloader, you should be in the clear as you have an exemption to make that copy for your own use. As an uploader though, you're still potentially in trouble as there's no exemption for making copies for other people's use.

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It's not just fair use, there's a specific exemption for computer programs. From my reading of the law (IANAL) if you own "a copy", you are authorized to make "another copy" for use on "a machine".

Agreed, but with the provision that the media is perishable - as far as case law goes.

 

Nothing in the law states that you have to make that other copy from the copy you own.

It doesn't need to. Copyright law states that no copy is allowed without permission of the holder, except for the stated exemptions. So what isn't expressly allowed is forbidden.

 

You have no stated legal right to someone else's copy, even if you own identical media. No matter how much it may fly in the face of common sense.

 

No case law here AFAIK, but for what it's worth (not a whole lot) copyright.gov agrees with me on the point.

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They simplified the language a bit, but it's pretty clear when you read the law. You're granted the right to make a copy, by downloading you have made a copy.

I've read the act many times. There's no exemption for making a copy of someone else's copy - to the contrary, the exemption states that you must be the lawful owner of the copy to make an additional copy.

 

The man in the robes may buy your defense of owning another lawful copy as well, or he may not. If he follows the letter of the law, he won't.

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The courts don't get hung up on technicalities. It's why you see stuff like "reasonable man tests" and the like applied to words that have ambiguity.

 

As far as case law, in Atari v. JS&A the court ruled that rom/cartridge backups were not covered by section 17 USC 117(a)(2).

Edited by RevEng
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the exemption states that you must be the lawful owner of the copy to make an additional copy.

 

 

It does not. It says "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program".

 

It does not say "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that copy of that computer program"

 

See the difference?

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It does not. It says "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program".

 

It does not say "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that copy of that computer program"

 

See the difference?

Sure, I was paraphrasing.

 

The difference is not the crux of my disagreement with your interpretation of the exemption.

 

I say "of that computer program" means the item that you purchased and have in your possession.

 

Your interpretation of "of that computer program" (as I understand it) is the program code, or any implementation of that computer program.

 

I say that's overreaching.

 

While admittedly they are a biased source, copyright.gov seems to agree with my interpretation.

 

Another supporting view here: https://security.usf.edu/copyright/copyrightsoftware.php

Edited by RevEng
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Fair enough. Given the fungibility of computer files, I think that's a silly interpretation. The program is the sequence of bits, not the particular instance of the sequence of bits. If I own a copy of Mario Bros. the law allows me to make a copy of Mario Bros. By downloading a ROM, I have made a copy of Mario Bros. I wouldn't put it past a judge to rule otherwise, as technically nonsensical as it may be. It's moot anyways, this question is unlikely to ever be litigated.

 

It's worth pointing out that Title 17 defines "computer program" as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." It doesn't say anything about a particular instance.

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Fair enough. Given the fungibility of computer files, I think that's a silly interpretation.

Well, I assert that the law itself is silly. I did mention that it flew in the face of common sense, right?

Anyway, I managed to track down some case law that hinged on 117(1). (mostly lifted from from this pdf)

 

In Micro-Sparc, Inc. v. Amtype Corp., the court pretty much nullified the whole authorizing of copies text in 117(1) by making it impractical...

 

Micro-Spark published Nibble Magazine. Nibble had programs the users could type-in, and for an additional fee they would also sell the users a diskette with the programs on it. Amtype offered to sell the magazine-purchasers a "type-in" service, in which they'd sell the magazine purchasers a diskette with the programs for less than Nibble was charging.

 

The court ruled that the sole purpose of 117(1) was to authorize the owners to input computer programs into computers. (!) The court then reasoned that section 117 did not permit subscribers to authorize Amtype to prepare diskette copies for them, because Amtype did not itself input the copies into the subscribers' computers. Instead, the subscriber used the dis­kette to input the computer program into the computer.

 

So Amtype made backups, no doubt, but because they didn't make backups on the user's computers, they weren't exempt under 117.

 

Besides the fact that the case makes authorized backups under 117 impractical, it also illustrates nicely that the source of the bytes (however identical to the end result) is critical when considering a case.

 

To quote Dickens, "the law is an ass."

Edited by RevEng
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That's essentially my question-there are games out there that have no home ports, and that no one is making money off of anymore, and yet when you play them on MAME, you're told that it's illegal to do so unless you own the actual game. Of course, no one's going to arrest me, but who decides that it's illegal, and is it a matter of international copyright law, or is it something different? In other words, why is it illegal?? Or is it, really?

 

A very good friend of mine thinks emulation is fine, as long as no one's making money off of the game.

 

It's only my opinion I think if you aren't operating commercially "trying to make money with the ROMS" they prob don't mind with

the older non franchise games if anything it's keeping interest alive in something that would be lost otherwise.Think about it like

obscure Youtube music videos the record companies don't mind so much because if somebody likes the music video they might go

out and buy the album.

 

 

thats something I dont understand about youtube: how some artists hate it. well, videos were made to promote a song or artist. they werent meant to make them money. why would an artist get mad if thier video were on youtube, like Prince. where else can one see a prince video now? mtv doesnt play videos and its not like prince is selling his videos on the dvd/blue ray market.

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