Is this legal???

[Zeus]

Recently I reported an Ebay seller that was trying to sell CD-roms with every SNES and NES game burned into them. I know this is against ebay rules, and I do believe it is illegal as well. However, I received this response:

 

Please read http://www.copyright.gov/1201/ before you jump to conclusions.

 

Next time mind your own business!!!

 

If you follow the link, the seller seems to be implying that what is being done is perfectly legal. I would like to know the opinions of some of the more legal minded members here.

 

It is pretty fishy because A. They are all 1 day auctions. B. It said to contact the seller via email if interested. C. At the very least this could be considered a misrepresentation as it did not state that it was on a disk, as opposed to cartridges. Opinions please.

[Mindfield]

Interesting. The relevant portion he seems to be referring to is this:

 

On October 28, 2003, the Librarian of Congress, on the recommendation of the Register of Copyrights, announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. The four classes of works exempted are:

[...]

(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

 

Based on this, it would infer that any video game system that uses any media which is obsolete and which requires the original console in order to play (i.e. any cartridge or card-based system and its attendant software) and for which the original hardware is no longer reasonably available commercially is fair game as it is exempted from the DMCA under this clause for the next two years (at least -- if the rulemaking proceedings go ahead as planned and it becomes a permanent amendment to the DMCA then they will be permanently exempted).

 

I expect this would be heatedly challenged by parties affected by such an ammendment, though. Nintendo of America would likely be one of the largest proponents against such an amendment -- they protect their intellectual property with incredible ferocity.

 

I'm rather surprised to see such a thing, though. Intellectual Property (IP) is still a hot topic, and the whole arguement has been based around the intellectual property itself, rather than the format in which it was distributed and the devices required to render it functional. The biggest reason companies protect their IP despite it no longer being available in any usable format due to obsolescence is either to re-release it themselves in a compilation package either through emulation or modernization, or to retain the value of licensing that IP to another company that wants to do so. It seems to me that exempting a piece of IP simply because it was released in a format that is now obsolete and can only be used on hardware that is no longer commercially available would devalue it, since it would then become freely distributable for use within whatever modern framework WOULD make it functional (i.e. emulators)

 

Consider this: Exempting any obsolete video game from the DMCA would make it fair game for ANYONE to distribute it in ANY form they pleased -- even converting it into a format usable on modern hardware and then selling it.

 

Something about that just doesn't sound right.

[kheffington]

Interesting.  The relevant portion he seems to be referring to is this:

 

On October 28, 2003, the Librarian of Congress, on the recommendation of the Register of Copyrights, announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. The four classes of works exempted are:

[...]

(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

 

 

 

 

This is being taken out of context, this provision only applies to fair use rights. In other words if you have the original, you can circumvent the copy protection to make copies on these older formats without violating the DMCA. You still can not sell copies.

[Bryan]

Right. This guy is selling what doesn't belong to him. If you own all these Nintendo games in cartridge format, then you're free to make a CD out of them for personal use, not sell someone else's copyrighted material for profit.

 

-Bry

 

/goes to increment the ebay moron counter.

[Mindfield]

Ah, so it speaks to the fair use clause -- that makes a hell of a lot more sense. Much as I'd love to see an "if it's obsolete it's free" law passed, that just sounded way wrong.

 

And so just another moron who doesn't understand what he's doing.

[Super-Genius!]

Actually, here is what it means.....

 

The Digital Millennium Copyright Act makes it an infrindgement to reverse

engineer ANYTHING! Before that, it was not an infrindgement.

 

What Section 1201(a)(1) is saying, if one of the listed classes are

in question, it is fine to reverse engineer any part of it that holds a

copyright.

 

When this ruling came out, I questioned my copyright attorney, because

it was not clear in my mind what it actually meant....

 

 

Mark

[MrRetroGamer]

Keep reporting him and sooner or later the seller will become NARUed!

[kheffington]

Statement of the Librarian of Congress Relating to Section 1201 Rulemaking

   In accordance with section 1201(a)(1) of the copyright law, I am today issuing a final rule that sets out four classes of works that will be subject to exemptions for the next three years from the statute's prohibition against circumvention of technology that effectively controls access to a copyrighted work. This is the second time that I have issued such a rule, which the Digital Millennium Copyright Act (DMCA) requires that I do every three years. These exemptions expire after three years, unless proponents prove their case once again.

 

   As required by the DMCA, the Register of Copyrights has conducted a rulemaking and made a recommendation to me on this matter. I have accepted the Register's recommendation and determined that for the next three years, persons who engage in noninfringing uses of copyrighted works in these four classes will not be subject to the statutory prohibition against circumvention of access controls.

  1.  Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.

 

  2. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

 

  3. Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

 

  4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

 

Partial quote of Librarian of Congress above. The complete text of this is at

 

http://www.copyright.gov/1201/docs/librari...atement_01.html

 

Non-infringing is the important part. You can't sell them. You just have a right to access them if you have them. Fair Use.

[tantone56]

why report someone for that. Why should someone without a system be deprived of playing a game. If it's not hurting you than why bother?

[Mindfield]

why report someone for that.  Why should someone without a system be deprived of playing a game.  If it's not hurting you than why bother?

 

That's sort of the point. It could be argued in many cases that it is hurting someone -- the company that may stand to profit from the works being freely distributed. Nintendo is a big defender of this. They will vigorously attack anyone they deem is infringing on materials to which they hold copyright. They sort of have to -- if a court of law determines that the holder of the copyright is not actively defending it against infringement, then they will lose all rights to the infringed works. Furthermore with retrogaming being all the rage these days, a lot of companies are looking back to old works to which they own the copyright and are either bringing out updated versions of those titles, converting them, or emulating them, for play on modern systems. From their point of view, if the works are being freely distributed then it damages the value of the work and potentially costs them sales of any future publications of said works.

 

Not that I'm defending the point -- for obsolete systems I've always felt the software should be preserved in some playable form and freely available to enjoy where there is no longer any potential for the copyright holders to commercially benefit from it. I do understand their position, however, and the fact that they are obligated to uphold the defence of that which they own copyrights to, lest they lose them altogether.

[tantone56]

alot of these companys with the exception of activision deserve to loose the rights to the games. After not doing anything commercially with a game for lets say fifteen years the right to copy the code into emulation shold become free to the public. I just cant stand to see gaming history lost becase a companys to stubborn to put out a best of cd on a modern system or the fact that they just want to be assholes with there copyrights. I fully understand your points to but there has to be a happy median somewhere.