Copyright Access Exemption Granted for Obsolete Videogames??

[+kisrael]

From GameSutra:

In response to a filing by Brewster Kahle of The Internet Archive, Lawrence Lessig of Creative Commons, and others, the Librarian of Congress granted access exemptions from copyright protection measures in the Digital Millennium Copyright Act to obsolete videogames. The exemption applies to games that require the original media or hardware as a condition of access, and it determines a format 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.”

 

According to the original filing, the exemption was proposed in order to migrate degraded and obsolete works to modern storage systems, and enable “archiving, future scholarship, and commentary.”

Whaddya think? I guess companies that ARE making and selling emulators still can protect their copyright, but if this ruling is real, I think it's great for video game archivists...it certainly matches my personal guidelines for when emulation is "right".

[Dav]

It's just an exemption to the dmca. It means I can legally crack the protection on ms pacman for it's inclusion in mame. This is very good for emulators and makers of replacement parts for arcade machines as the dmca makes them illegal. However it doesn't mean anyone can distribute the ms pacman roms. All copyrights are still protected by the berne convention.

[Flojomojo]

Whoa there ... I'm not a lawyer, but I don't think this means that MAME ROMs are suddenly kosher. I believe it's more likely that "original media" refers to disk-based copy protection, especially when said disks are 5.25" floppies or 400K single-sided 3.5" disks, neither of which is readable in modern drives, even if the media were in perfect condition.

 

That said, preservation is going to have to be given the attention it deserves, and this certainly seems to be a step in the right direction.

 

Hm, maybe I should go RTFA now.

[goatdan]

It's just an exemption to the dmca.  It means I can legally crack the protection on ms pacman for it's inclusion in mame.  This is very good for emulators and makers of replacement parts for arcade machines as the dmca makes them  illegal.  However it doesn't mean anyone can distribute the ms pacman roms.  All copyrights are still protected by the berne convention.

 

No, not true.

 

This exemption has been around since the DMCA was passed or near to it and I actually studied it in school. You/they missed this:

 

...it determines a format 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.”

 

Can you claim that a Nintendo system is not reasonably available? Looking it up on eBay just now, I found 1122 entries for the search "NES System." eBay is a commercial marketplace. Or you could go to a local store and get one. Or an online store. I know for a fact that the GOAT Store has them and so do many other places. Hell, I could even find a copy of Ms. Pac-Man for the arcade if I looked in the right place.

 

What is reasonably available? Pretty much, it means that if I can prove in court that I can find it, I can prove that it doesn't apply. This exemption has absolutely no teeth.

 

Besides that, it gives no person the right to crack the protection on the games, if there is such a protection. Games like Atari 2600 games don't have any protection, but games like the NES and up that do can only be legally reverse engineered (see the decisions of Nintendo vs. Tengen and Sega vs. Accolade for details on this ruling). It does not give the rights for someone to crack the encryption by any illegal way.

 

The whole DMCA was made to specifically give business more and more rights than they have ever had before to protect their copyrights. These exemptions are simply for the transferring of old media that is degrading -- computer disks and so on, as were mentioned in librarys for archiving. Not so Joe Schmoe can download every NES and SNES game and play them on an emulator. I wish that the copyright laws were different, but as long as people can make money on their old material (See Disney -> Snow White as the reason for a LOT of this...), they will make sure to keep their copyrights and fight for them.

 

Any lawyer could stop ROM pirating with this... and they have since it was passed.

[Cootster]

Maybe I'm reading this wrong, but the very existence of emulation makes this mean precisely squat. . . Every console fails this test, because it is possible to play them without the original media or hardware now . . . Same for just about any computer system one could think of . . .

 

At best, it would mean that someone who owns something that remains undumped has every right to dump it without being hopped on by copyright police. . . So, a good thing for the prototype aficionados, but nothing otherwise, really.

[Godzilla]

they just need to grant all the rights to me, and ill make em free to everyone. cause that's just the kind of guy that am i.

 

all information should be free! cyberpunks!

[goatdan]

Maybe I'm reading this wrong, but the very existence of emulation makes this mean precisely squat. . .  Every console fails this test, because it is possible to play them without the original media or hardware now . . . Same for just about any computer system one could think of . . .

 

If I'm understanding you correctly... I think you're wrong. Emulation doesn't mean that a format is obsolete. There is an Xbox emulator that I've heard can play the opening animation of Halo. Does that mean that the Xbox's DVD media is obsolete? Of course not.

 

At best, it would mean that someone who owns something that remains undumped has every right to dump it without being hopped on by copyright police. . . So, a good thing for the prototype aficionados, but nothing otherwise, really.

 

Now this is something interesting to think about. The exemption doesn't grant it to prototypes, but a good lawyer could probably argue that a prototype is in a format that is not available in the commercial marketplace... Although that exemption is applied to the system, which I don't think you'll be able to fight as much.

 

It *could* be read to grant you the rights to dump and distribute protos, but any company with deep enough pockets that wanted to could stop you in court regardless of if it was legal or not. See Sony vs. BleemCast! for proof of this...

[PackratVG]

From what I understand, this exemption came about because of a request from www.archive.org. Here's the link:

 

http://www.archive.org/about/dmca.php

 

It sounds like they archive old software from floppies. If you look closely at the page, they have a picture of Q*Bert and a few other games.

 

Best,

Jarett

[goatdan]

True, again though...

 

What is an "obsolete" file storage system? Don't USB keys work on the same general principal as a NES game? A lawyer could successfully argue that for any console.

 

If you can prove that you are a library saving games for technological purposes, you won't get sued. If you're a regular person playing ROMs on your computer of your old NES collection...

 

As long as you're not caught and Nintendo doesn't care to prosecute, you're fine.

 

There are too many laws made this way, unfortunately. Those with the deepest pockets (Nintendo, Sega, Atari, etc.) will always win. The copyright law was basically written by Disney to protect their rights to every Disney cartoon ever made. Companies like Nintendo aren't going to allow their games to _not_ fall under that umbrella.

[Hydian]

I don't think thrift stores and ebay count as "commercially available" as they are by definition a second hand market.

 

But lets be clear. This exemption only allows you to disreguard the portion of the DMCA that prevents you from circumventing the protection. It does not allow you to do anything else that is not covered under the fair use laws (or other portions of the DMCA.)

[goatdan]

I don't think thrift stores and ebay count as "commercially available" as they are by definition a second hand market.

 

Well... lets see. From Dictionary.com

 

"commercially" means "of or relating to commerce" and commerce means "The buying and selling of goods, especially on a large scale, as between cities or nations." (Interestingly enough, it also means sexual intercourse.)

 

"available" means "Present and ready for use; at hand; accessible"

 

Therefore, a good that is "commercially available" means that it is a "good that is present and ready for use." If you can find a good on eBay, which is a commercial marketplace, you therefore have a place where you can buy and sell goods with a reasonable availablity.

 

If there were no stores online and places like EB stopped carrying them, you could argue that the games weren't commercially available. How it stands, it would be an easy argument for a lawyer to make.

 

I've said this before, but it is the bottom line -- these laws were made to benefit large business and not the consumer. It does not cover the pirating of ROMs.

[Cootster]

Maybe I'm reading this wrong, but the very existence of emulation makes this mean precisely squat. . .  Every console fails this test, because it is possible to play them without the original media or hardware now . . . Same for just about any computer system one could think of . . .

 

If I'm understanding you correctly... I think you're wrong. Emulation doesn't mean that a format is obsolete. There is an Xbox emulator that I've heard can play the opening animation of Halo. Does that mean that the Xbox's DVD media is obsolete? Of course not.

 

No, because obviously they're still being made.* NES carts, Namco custom arcade boards, 8-inch floppies, et al, are not being made and therefore the contents need to be preserved in some form. But we can still play these contents, thanks to emulation. . . That exemption, as written, doesn't apply to things that are already out there.

 

* Of course, so are 2600 carts, and every title in the library except like 6 (Pitfall II and the ones that use RAM) can be made by anyone with the hardware, and basically have been.

 

 

 

At best, it would mean that someone who owns something that remains undumped has every right to dump it without being hopped on by copyright police. . . So, a good thing for the prototype aficionados, but nothing otherwise, really.

 

Now this is something interesting to think about.  The exemption doesn't grant it to prototypes, but a good lawyer could probably argue that a prototype is in a format that is not available in the commercial marketplace...  Although that exemption is applied to the system, which I don't think you'll be able to fight as much.

 

Well, an arcade proto may exist on an unique hardware configuration, and would require the original board and system in order to function, especially if some details of its function were unknown.

[goatdan]

If I'm understanding you correctly...  I think you're wrong.  Emulation doesn't mean that a format is obsolete.  There is an Xbox emulator that I've heard can play the opening animation of Halo.  Does that mean that the Xbox's DVD media is obsolete?  Of course not.

 

No, because obviously they're still being made.* NES carts, Namco custom arcade boards, 8-inch floppies, et al, are not being made and therefore the contents need to be preserved in some form. But we can still play these contents, thanks to emulation. . . That exemption, as written, doesn't apply to things that are already out there.

 

Yes, except that the definition of obsolete isn't if they are being made or not, but that they are "No longer in use." (Source: Dictionary.com)

 

So if you can get stores, eBay, etc. to stop selling Atari 2600 games, Namco custom arcade boards, NES games and so on, you could argue that since there is no marketplace for these that they are obsolete and therefore should be preserved in a new format.

 

If you look up ' floppy 8" ' on eBay, you get 26 hits, over half are things like '8 3.5" floppy drives' and stuff like that. Because you can no longer easily obtan 8" floppies, they would be a perfect example of what this does exempt. If you look up NES on the other hand, you get 9777 items.

 

If NES sales drop to less than a handful per week, then the format is probably obsolete.

 

[Just a note -- as you can probably tell by my numerous postings to this thread, this is a topic that I take great interest in and I've studied quite a bit. I actually wrote a 15 page paper for college on the legality of producing new games for old systems after the rulings of Atari Vs. Activision, Nintendo Vs. Tengen and Sega Vs. Accolade, and what the DMCA meant to these rulings. And, of course, why Bleem! won in court but still got taken off the marketplace. ]

[Artlover]

Because you can no longer easily obtan 8" floppies,

 

http://www.totalmedia.com/catalog/catalog_...CID=&bustype=01

 

[Dav]

Buying junk on ebay a piece at a time does not mean something is commercialy availible. For example last week someone asked me for 45 of the custom chips for pacman boards. Where am I going to get them? Suppose I want to stock 2600 missle command in my game store? Do you have a link for someone that can send me 200 of them right away? Tested, and with instructions oc course. Before you say I'm being silly remember your the one that said especially in large quanities.

 

Your definition of obsolete is a little suspect too. If they meant your definition why bother writing the exception since there will always be someone who still uses something occasionally. In the technical world we use obsoete all the time to mean outmoded. For example any electronic manufacter will tell you if a chip or part is obsolete or not. Obviosly they aren't saying no one uses it or even that you can't buy them new from your supplier. They're saying they've quit making it.

[Starman]

Think about this - how could you NOT separate second-hand and "commercially available"? The clause would essentially be useless since EVERYTHING can be bought on eBay! The only items you could probably never find on eBay are Computer Space machines. Everything else is there on eBay - 1122 Nintendos. BUT, they're not being manufactured anymore by the original manufacturer and that's where the distinction lies. I think it's quite obvious.

 

Mike

[Flojomojo]

If I'm understanding you correctly...  I think you're wrong.  Emulation doesn't mean that a format is obsolete.  There is an Xbox emulator that I've heard can play the opening animation of Halo.  Does that mean that the Xbox's DVD media is obsolete?  Of course not.

 

No, because obviously they're still being made.* NES carts, Namco custom arcade boards, 8-inch floppies, et al, are not being made and therefore the contents need to be preserved in some form. But we can still play these contents, thanks to emulation. . . That exemption, as written, doesn't apply to things that are already out there.

 

Yes, except that the definition of obsolete isn't if they are being made or not, but that they are "No longer in use." (Source: Dictionary.com)

 

So if you can get stores, eBay, etc. to stop selling Atari 2600 games, Namco custom arcade boards, NES games and so on, you could argue that since there is no marketplace for these that they are obsolete and therefore should be preserved in a new format.

Dan, we know that the oldies are near and dear to your heart, but a dictionary definition of a term is not the same as a legal or technical definition. Atari games can be both obsolete and enjoyable -- the two terms are not mutually exclusive.

 

If a technology is no longer produced or supported by its manufacturer, particularly a proprietary format, I'd call that a pretty good definition of "obsolete." I agree -- just because you can buy any old junk on Ebay doesn't mean said junk is not obsolete.

[goatdan]

Buying junk on ebay a piece at a time does not mean something is commercialy availible. [*snip*]  Before you say I'm being silly remember your the one that said especially in large quanities.

 

I disagree with you on this point. Just because you can't buy 200 things at once doesn't mean that it isn't commercially available. I could walk into my local Wal*Mart and ask to purchase 200 Playstation 2's. Just because they don't have 200 in stock doesn't mean that they aren't available. For an older game system, you might just have to spend more time to obtain them.

 

Think about this - how could you NOT separate second-hand and "commercially available"? The clause would essentially be useless since EVERYTHING can be bought on eBay! The only items you could probably never find on eBay are Computer Space machines. Everything else is there on eBay - 1122 Nintendos. BUT, they're not being manufactured anymore by the original manufacturer and that's where the distinction lies. I think it's quite obvious.

 

I agree with everything that you said up until the final two sentances. You can't base something as being obsolete or not based on if it is manufactured currently or not. Nintendo for a time this past year stopped manufacturing the GameCube because they had an excess in stock. They weren't producing the system, but it wasn't obsolete.

 

The clause is essentially useless.

 

This clause basically boils down to the fact that libraries can backup data for the purpose of archiving it and it would fight any company that said it wasn't legal for libraries to do this. Really though, this backup of data for a library -- which would be "migrating" degraded and obsolete works, not "obtaining them" -- should fall under the fair use doctrine. The fair use doctrine would not allow you to copy your Sega Saturn collection and distribute for free throughout the Internet.

 

Dan, we know that the oldies are near and dear to your heart, but a dictionary definition of a term is not the same as a legal or technical definition. Atari games can be both obsolete and enjoyable -- the two terms are not mutually exclusive.

 

Actually, this has nothing to do with the oldies being "near and dead to my heart" but just the way that the law is written. I never said that Atari games couldn't be obsolete and enjoyable at the same time either. Where are you getting that from?

 

If a technology is no longer produced or supported by its manufacturer, particularly a proprietary format, I'd call that a pretty good definition of "obsolete." I agree -- just because you can buy any old junk on Ebay doesn't mean said junk is not obsolete.

 

When it boils down to someone standing in court and arguing these two points, the person who downloads a bunch of ROMs on their computer and says that "obsolete" means that it is no longer produced or supported by the manufacturer will probably not win out over the big-business lawyer who pulls out a dictionary and explains what the official definition of obsolete is.

 

Also, just to point this out... here is some support information on the Genesis, Saturn and Dreamcast from Sega.com:

 

http://www.sega.com/support/supportsys.php...support_systems

 

Here is a Nintendo page where you can get customer service for every Nintendo system ever made:

 

http://www.nintendo.com/consumer/index.jsp

 

You are in a very gray area here, and if Disney can get the laws rewritten to be precisely how they want them to be, I'm sure that Nintendo or Sega could stop you from trading ROMs with the same law.

 

And if you want some more info on DMCA Abuses, but what this thing can do against free speech, check out this page:

 

http://www-2.cs.cmu.edu/~dst/DMCA/Gallery/

 

You'll even see an issue where Nintendo sued over a program that can download the ROM from a GameBoy cartridge to a computer... and won.

 

The DMCA is _not_ a good law for consumers. And no one had people that stored ROMs in mind when this law was passed. Period. And I'm no saint either -- I have a few MAME ROMs and a ton of Pinball ROMs in my possesion... but this amendment doesn't mean it's suddenly legal for me to have them. Just that no one has come to sue me yet.

[Hydian]

The exemption has nothing to do with trading ROMs. That is still illegal under normal copyright laws. The exemption was specifically crafted for the archiving of games where the required hardware is no longer available in the mainstream (that is what is considered to be commercial...if it is no longer available from the retail channel or the manufacturer it is no longer commercially available...I can buy stuff from a crack addict in the projects, but that does not make it commercially available.)

 

The exemption simply means that you cannot be touched under the DMCA anti-circumvention clause if you make backups of media. Otherwise, that is exactly what Nintendo (or whomever) would do since the DMCA is much more business friendly than even copyright laws are with higher penalties and more leeway in terms of how brutal the enforcement is.