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Comment by aplose | Hacker News Reader

> If I bought the game in 1989 I can still legally play it in digital form, yes?

No, that's not how copyright works. That's a myth. In some cases you can make a backup of the game if you do it yourself. But you still can't download someone else's copy.

> I'm not sure why copyright now means a company can charge me 100 times for the same product in different forms.

Because copyright means the company that sold you the product retains the right to copy it. That's not a right you bought when you paid for the game.

> It didn't used to and I'm not sure how this changed mindset in any way helps creators or society.

I'm not sure it's been a help either. Someone should change the laws to align them with modern society. But this isn't the way to do it.

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https://www.copyright.gov/help/faq/faq-digital.html "Under section 117, you or someone you authorize may make a copy of an original computer program if: the new copy is being made for archival (i.e., backup) purposes only; you are the legal owner of the copy; and any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred."

Someone can do it for you. Also, this doesn't even have anything to do with copyright since it is actually like your friend letting you play a copy of his nintendo with a copy of his game. Totally different paradigm.

IANAL, but:

Someone else can do it with the legitimate copy you own, e.g. I take my cartridge to the copy shop and the tech copies it to a floppy for me. The fact that someone online could send me exactly the same data is irrelevant.

Legally I'm pretty sure that lending a physical copy and making a digital copy are incomparable. And to be sure, a copy is made when the server sends you the ROM.

https://www.law.cornell.edu/uscode/text/17/117

"(a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, 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 provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful."

Where does it say that the copy must come from your original? If two people own the program, one may make a copy of his/her original for the other because the others original may have been destroyed. Remember, this law was written in the days of cds, records, etc.

It is clear that you can lend an original copy but not an archival copy. If you lend the original copy, you physically cannot be using it(needless to say, you cannot legally use your archival copy while you are lending you original copy).

>one may make a copy of his/her original for the other because the others original may have been destroyed

But then how would you prove you owned the original in the first place?

I could claim to have at one point owned every Sega Genesis game but unfortunately set the box down while moving and ran it over with a truck while backing out the driveway. I of course did not keep this box of now shattered carts and I also bought it with cash from a man on Craigslist so there really isn't a paper trail.

Is there a court case within the last 10 years we can reference that dealt with this kind of situation of once owning the original but it ended up destroyed?

> But then how would you prove you owned the original in the first place?

Are we arguing about how it ought to work now? I'm just telling you how it does work. Burden of proof is on the plaintiff, so no one has to prove that they owned a copy of anything unless for some reason the burden of proof changes at trial. You could make the claim in your example and get away with it. That's why few of these cases are substantiated.

Your first point is not so clear cut. A ROM is a ROM is a ROM. Do you have any citations where you own a physical copy and use an identical digital copy from a different physical source a breach of copyright?

Not sure about the legality of downloading it, but it's established that providing it (uploading it to someone else) is where you're usually in hot water.

> Do you have any citations where you own a physical copy and use an identical digital copy from a different physical source a breach of copyright?

https://www.nintendo.com/corp/legal.jsp#copy_illegal

The party in question saying "Yes yes, that's illegal" isn't worth the bytes used to transmit the message.

I see your point. However, these are the lawyers of the party that sold their consumers the license to play the game. Remember, you don't actually own the game. You own a license to play the game on the medium you purchased. If the company that sold you the license also says that copying the game to a different medium and playing it there is not part of the original license, they kind of are allowed to say that.

Note: I'm not saying I like it! I'm just saying it is the way it is.

This "you have no rights but what we decide you have" view of ownership is what Nintendo would like you to think, but it's untrue in varying degrees depending on jurisdiction.

You own a license to play the game on the medium you purchased.

https://www.law.cornell.edu/uscode/text/17/107

That's not a very useful citation. Nintendo takes an extremely expansive view of copyright (for example, they try to prevent commentators from using clips from their games in YouTube videos), is not an authoritative source, and is not exactly an impartial commentator on this matter.

I didn't mean it as a source of commentary on the matter. I meant it as a statement on the legality of making copies from the company that sold the licenses for playing the games to the general public.

If I say you are legally obligated to give me $100 if you read my comments, and link to the comment where I said it as proof that you're obligated, will you believe you're obligated to give me $100? I own the copyright on my writings, after all.

Copyright holders are not gods. The idea that their word is gospel is patently false. And in the specific case of Nintendo, they are even less reliable then most in terms of accurately communicating your rights to you. Nintendo have very little respect for copyright law as it actually exists, and instead try to assert whatever rights they wish they had and hope nobody fights them on it.

Reading over your response, I think we are talking about two different things. You appear to be talking about copyright protection. Remember that when you purchase a game, you don't purchase the copyright. You purchase a license to play a copyrighted game on a particular medium. (That part of the game instruction manual we all skipped past as kids.)

I don't have access to one of those licenses at the moment but if you happen to have one of them from one of the old NES games, I would be very interested in knowing if it has a section that states that the consumer has a right to backup the game onto another medium and play it there.

Again, you seem to be talking about copyright. I'm talking about the legal rights of the consumer when they purchased the license (game) from Nintendo. This is a good discussion, though.

Copyright is the only reason the license exists at all. If we ignore copyright, then the license is completely meaningless, because Nintendo has no rights to the work.

The point is that the EULA does not give Nintendo absolute power just because you played the game. They can't, for example, stick "You owe 30 years of indentured servitude to Nintendo" in the back of the Zelda manual and expect to get a bunch of free work out of the deal.

Nintendo have a very aspirational view of how much control they get over people who buy their stuff, and the law may even bear them out in some cases, but you can't take their word as law just because they wrote a license.

> You purchase a license to play a copyrighted game on a particular medium.

The default right is ours, to be permitted to retell stories, replay musical works we've heard, and even reproduce works of art like video games.

We -- from whom the power to govern comes -- cede this freedom for the sake of promoting arts and sciences. But we do so in a limited fashion. See Article I, Section 8, Clause 8:

> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Our representatives scribbled in "but 'limited Times' means a century or two lol" underneath this and called it "Title 17".

As chc states, the copyright gives its holder the ability to grant us licenses. But we could make the case that the limited-monopoly we granted them to begin with has expired or is no longer valid. The copyright holder has concluded that it's not worth their time to continue to offer this work to anyone. So, who then, can curate this work of art that is now an element of our culture? In the mid twentieth-century, if the materials to produce the yellow, green, blue pigments featured in "The Scream" were licensed to painting copiers by Munch's estate, would we be obligated to source those pigments from them? What if his estate no longer sold them?

The point I'm trying to hit upon is that you're drawing a distinction between copyright and the consumer's legal rights. But the copyright is merely the instrument by which our freedoms are limited to those specific terms. If we reject the copyright claim, then the license's terms are moot.

The right to backup stems from copyright, and on theory cannot be denied by copyright holders. DMCA'S anti-circumvention unfortunately limits this - if circumventing "access controls" is part of the path to backing up media, you may only do it 100% yourself (or acquire "illegal" tools made by others to do so), but you may not legally tell others how to do it.

You're permitted to make your own archival copy, or allow someone to make an archival copy for you, from your physical copy of the software. Apparently, "the new copy is being made for archival (i.e., backup) purposes only". It sounds like you aren't permitted to run the backup copy, although I'd assume that if the original copy were destroyed, you'd be within your rights to write the backup to a blank cartridge, or something.

Nintendo's interpretation is some real B.S. though. Basically, that copying devices are illegal, emulators are illegal, and so on.

> A ROM is a ROM is a ROM.

Legally, from my understanding, there's also metadata about the provenance of the data. Where did it come from? Did you read it from a memory chip yourself, or download it from the internet? The data could be identical, but is the data legal if it was acquired illegally?

It's good enough for Nintendo: http://www.eurogamer.net/articles/2017-01-18-did-nintendo-do...

Do you have any citations where you own a physical copy and use an identical digital copy from a different physical source a breach of copyright?

https://en.wikipedia.org/wiki/UMG_Recordings,_Inc._v._MP3.co....

However I cannot make a backup of a NES/SNES cartridge that I legally own so this is the only method open to most people to actually obtain a digital backup of software they legally own.

There exist cart copiers, and not just the old ones. It is legally possible to dump your own games.

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