EmuParadise has removed its entire library of retro game ROMs and ISOs

[John Stamos Mullet]

So... I'm a troll now because we don't agree on politics? You should be able to not let my preferences affect your ability to associate with me on a video game message board.

you should keep your political preferences to yourself, since the board rules flat out state you're not supposed to discuss politics of any kind. So knowing that and you still persist on "joking" about your preferences (while making sure everyone knows what your preferences are) - yes, that's pretty much the definition of trolling.

 

I agree with you about roms and sharing. But you know what the board rules are about politics. Don't play coy.

Edited September 4, 2018 by John Stamos Mullet

[mr_me]

That's what I've done for a very very long time, even when I still did actively pirate crap 20 years ago, stuff that I did own I still did make archival backups. I just remembered as that link said, run just the one copy, sell the legit and destroy the backup. I mean why not if you're done with it right? I've had a few cases where I've got games even now I have to use the backup because the media itself is unreadable due to one problem or another, but my zipped copy I can still decompress and run using some tool. Without that provision I'd have a few games I couldn't use anymore I do own.

What if your backup failed or you didn't have one. Let's say your friend owned a copy of the same game and you used their copy to make your backup. Is that illegal. What if you found a copy on the internet and used that to make your backup.

[RevEng]

What if your backup failed or you didn't have one. Let's say your friend owned a copy of the same game and you used their copy to make your backup. Is that illegal. What if you found a copy on the internet and used that to make your backup.

I know it seems contrary to common sense (since bit for bit it's the same copy as your destroyed original) but for both of your examples cases, the copying isn't exempt under the US copyright software archival exemption rules (section 117). Your friend would also need to give you his original, and destroy any backups of his own, to qualify under 117.

 

BTW, it actually gets a bit worse for cartridge based copies. There's case law (Atari v JS&A) with a ruling that cartridges with mask rom aren't covered by the software backup copyright exemptions.

 

One could argue fair use in your first example, and it would probably stick in court. It might even for the second case too, provided you didn't distribute the rom at the same time (as with bittorrent). I say "might" for the second case, because it likely involves commercial benefit for the person sharing the rom (ie. advertising). Even without the advertising, the fact that your (argued) legitimate use came from an infringing copy would certainly hurt the case for fair use.

 

In both cases you'd need some way of proving you had purchased the original prior to copy being made. I don't believe mere possession of an original after the accusation would fly in court.

[JBerel]

[John Stamos Mullet]

In both cases you'd need some way of proving you had purchased the original prior to copy being made. I don't believe mere possession of an original after the accusation would fly in court.

This is the key right here. You have to be able to prove legal purchase and possession of a physical copy before a backup was obtained, and the backup needs to be verified as coming from your owned copy, not the internet. Basic chain of evidence.

[mr_me]

I know it seems contrary to common sense (since bit for bit it's the same copy as your destroyed original) but for both of your examples cases, the copying isn't exempt under the US copyright software archival exemption rules (section 117). Your friend would also need to give you his original, and destroy any backups of his own, to qualify under 117.

 

BTW, it actually gets a bit worse for cartridge based copies. There's case law (Atari v JS&A) with a ruling that cartridges with mask rom aren't covered by the software backup copyright exemptions.

 

One could argue fair use in your first example, and it would probably stick in court. It might even for the second case too, provided you didn't distribute the rom at the same time (as with bittorrent). I say "might" for the second case, because it likely involves commercial benefit for the person sharing the rom (ie. advertising). Even without the advertising, the fact that your (argued) legitimate use came from an infringing copy would certainly hurt the case for fair use.

 

In both cases you'd need some way of proving you had purchased the original prior to copy being made. I don't believe mere possession of an original after the accusation would fly in court.

As you say common sense and the law don't always follow, nevertheless the law doesn't say anything about the copy you make your backup from has to be your copy. It only says that the owner of the copy can make a backup copy or authorise someone to do it for them. Is there more information on this? And yes, you have to be a lawful owner of the software, that goes without saying. I would be surprised if a judge rules against an individual who is a legitimate owner of the software regardless of how they made their backup copy.

 

There are some issues with the Atari vs JS&A case. The judge referenced something that was proposed but never made it into law. The sentence is "This would include the right to load it into a computer and to prepare archival copies of it to guard against destruction or damage by mechanical or electrical failure." First this was proposed but never made it into law, and second it is an example of the use and not restrictive of the use. The judge also explains that a cartridge rom is not susceptible to mechanical or electrical failure. Is that even true? Further this case is about a company selling a cartridge copying device that clearly would have contributed to software piracy. The judge was reaching to find a way to rule against it and the defense did a poor job. If it were a user on trial it might have been different. According to this judge if you lose your software in a fire, the backups would be illegal. A lawyer once told me that there's always a 20% chance a judge will do something unexpected.

 

I don't know if copying for the purpose of backup is a strong case for fair use. The judge usually weighs the benefit of the use against the rights of the copyright holder. In these cases a user benefits from not having to re-purchase something they already own against the copyright owner losing a sale. It's not clear in either side's favour. That's why section 117 was created specifically for computer software because the existing laws wasn't clear enough. And the lawmakers were smart to word it so it was open to all types of technology and uses, including those that couldn't even be foreseen at the time.

[RevEng]

As you say common sense and the law don't always follow, nevertheless the law doesn't say anything about the copy you make your backup from has to be your copy. It only says that the owner of the copy can make a backup copy or authorise someone to do it for them. Is there more information on this? And yes, you have to be a lawful owner of the software, that goes without saying.

One ground rule here. Copyright law works by saying you have no right to copy someone else's artistic work, and then grants some exemptions to this situation. If your case isn't exactly exempted, then the general "you're forbidden" is the catch-all.

 

Explicitly, 117 says you it's legal for the owner of a copy to make (or authorize) another copy specific for archival purposes. In no legal stretch do you own the specific copy of software on the website. When you download, you're copying from a copy you don't lawfully own. You may think, "same diff, it's 1:1 identical", but 117 doesn't specifically state that.

 

Lest you think this is some contortion I'm making up, copyright.gov specifically interprets the sale and purchase of backup copies by third parties to not be covered by 117, with this same reasoning.

 

 

I would be surprised if a judge rules against an individual who is a legitimate owner of the software regardless of how they made their backup copy.

If you induced other copies to be made (ie. torrent) or contributed to commercial copyright infringement (sites with ads) then it would weigh against you. As I said, I believe this is all outside 117, so the nature of the copy would have to be weighted against the 4 factors, and the person in the black robes would make the ultimate call.

 

I agree that the Atari vs JS&A case might shift due to modern understanding of bitrot, but maybe not. We only have the one ruling to look at right now.

 

If you rely on "Fair Use", it really has to be a slam dunk with 3 or all 4 factors clearly in your favor, otherwise you're just rolling the dice.

[phoenixdownita]

Honestly I don't think the "backup" part is what matters here. I think it is great that there are exemptions but the bulk of it stays, arguing if the say 20 games I already own (and still posses, if I trashed them then no dice sorry) are OK to be downloaded or not does not even begin to address the actual extent of the matter.

 

People by far download ROMs of games they don't have (and never had) because they are curious and want to see them (not necessarily own them at all) or because the few ways to get them legit are too expensive (i.e.: eBay scalpers) or they were never released in their country (which is within the right of a publisher by the way).

A big part is played by convenience (one smokemonster pack to rule them all so to speak), another part is played by plain&simple human hoarding habits (you never know when you'll want to play Superman on N64 ... except that you do [that would be "never again"] but nonetheless).

Even if we allow everyone with a legit copy to download it again and again (like they allow you to do with digital only licenses for in as long as the servers stay up) the real core of the issue would not change, and that is you need to legitimately own before even thinking about a copy. Given that each download IS a copy I want to reiterate that as of now there's no fair use for those unless you already own them to begin with (and yes I am discounting education, critics, libraries etc... as that is not the point of the matter here).

[zzip]

You had me until the last bit, which comes off as entitled and whiny. We also have stores for old & rare books, antique jewelry, furniture. Just because games are easily copied (which was not possible for the average person when they were new) shouldn't make them any less protected.

The games I owned in the 80s where almost all copy protected. Also half of them have degraded to the point they won't even boot, even though I stored them in a cool, dark dry place. If I was to buy new copies from old stores, whose to say they aren't also degraded? If not now, then soon? Nobody is producing reissues of most of these. The only way I can play them again is to get cracked versions from rom sites. I'm not in favor of denying anyone money for their hard work, but sometimes I just want a M.U.L.E fix or something, and that's the only way to get it.

 

We also have patents on things like drugs. Maybe old software should have a process to "go generic" and be playable on emulators after a period of time if the rights holders let things go.

That's what a lot of us are saying should happen. If you want to point fingers and say what we are doing is illegal, then at least provide a legal path to obtain these things. If not then a black/gray market is bound to spring up to serve an unmet desire.

[John Stamos Mullet]

The games I owned in the 80s where almost all copy protected. Also half of them have degraded to the point they won't even boot, even though I stored them in a cool, dark dry place.

You know what?

 

Too Bad. That's how everything in life is. Cars die. Pets die. Trees fall down. Televisions die. Stereos stop working. Shit happens.

 

You're not entitled to unending perpetual access to cheap consumer products from 30-40 years ago. That's why these things typically only carry a 90 day warranty on them.

[JBerel]

Again, not a legal argument, but I'll decide what I'm entitled to by God, not some corporate overlords who stand to make a buck. Now hand me the grog. Avast ye lip-flapping scalawags!

 

[Flojomojo]

[phoenixdownita]

You know what?

 

Too Bad. That's how everything in life is. Cars die. Pets die. Trees fall down. Televisions die. Stereos stop working. Shit happens.

 

You're not entitled to unending perpetual access to cheap consumer products from 30-40 years ago. That's why these things typically only carry a 90 day warranty on them.

By that token we would not be able to listen to Bach, Beethoven or read the Bible or the Quran or the Divine Comedy etc...etc...

Copy in itself is not the issue, when possible (wouldn't want to literally copy the Coliseum but a full 3D scan should be allowed). And although I agree with you that one does not buy the rights to have access in perpetuity (even if no non-perishable good has an actual stamped expiration date, and digital goods in particular can be maintained pretty much indefinitely) I also think there should be an avenue available to legally enjoy whatever allows "free copy" (anything digital really) past their sale period and past price gouging (scarcity should not be an issue in the digital age as it does not make sense).

 

For "entertainment" related artifacts (like music, art, games etc...) there should be a set date after which they enter the public domain or some sort of controlled guardianship rather than being left for dead and causing all sorts of conundrums for people that want to experience them but have no legal way to do so (and there are all sorts of exceptions to this I reckon wrt the authors having the right to maintain reasonable control to their characters/mythology/etc.... so as to continue to decide how to evolve it, this in particular applies to derivative works and maybe the two, as in copy vs derivative work, should be split and treated separately).

[Flojomojo]

Yes, all that

 

and

 

it's easy enough to find abandonware online, much simpler than it would be for the rights holders to prosecute the violators.

 

Legal or not, nature finds a way

[Andromeda Stardust]

Again, not a legal argument, but I'll decide what I'm entitled to by God, not some corporate overlords who stand to make a buck. Now hand me the grog. Avast ye lip-flapping scalawags!

 

I am a fan of spiced rum. That grog looks really good right about now...

[PlaysWithWolves]

This is the digital age; new rules need to be made. I propose ownership should be guaranteed for life plus seventy-five years.

[Tanooki]

Between that bottle and all the bitching about 117 nuances one or the other of my bottles of maker's mark are looking fairly good right now.

[phoenixdownita]

This is the digital age; new rules need to be made. I propose ownership should be guaranteed for life plus seventy-five years.

Yes please, I'm counting on those 75 years of additional playing time since the date of my death. Oh the joy of finally resting in peace while playing my favorites

[PlaysWithWolves]

Yes please, I'm counting on those 75 years of additional playing time since the date of my death. Oh the joy of finally resting in peace while playing my favorites

 

It transfers to your children or pets after you move on to the great video game in the sky.

[phoenixdownita]

 

It transfers to your children or pets after you move on to the great video game in the sky.

Definitely, my pet platypus is telling my pet alligator he's gonna kick his butt at Tekken 4 once I'm dead and buried, and my pet alligator is looking at me funny this very moment.

[Flojomojo]

This is the digital age; new rules need to be made. I propose ownership should be guaranteed for life plus seventy-five years.

This is the digital age, things move quickly and change fast. 5 years is plenty of time to monetize a standalone piece of software. Just like a book: a year for the hardcover (initial release and DLC), a year for the paperback (GOTY edition at half price), maybe the movie rights and a tie-in cover (HD remaster). Just sell cheap subscriptions to the whole back catalog and throw a few pennies to the royalty holders based on actual sales, like streaming music. There, I fixed it.

[+thanatos]

I went over the speed limit today for a bit.

 

And might have a couple ROMs on an old Zip disk.

[Crimefighter]

Ahem - someone will replace Emuparadise.

[mr_me]

One ground rule here. Copyright law works by saying you have no right to copy someone else's artistic work, and then grants some exemptions to this situation. If your case isn't exactly exempted, then the general "you're forbidden" is the catch-all.

 

Explicitly, 117 says you it's legal for the owner of a copy to make (or authorize) another copy specific for archival purposes. In no legal stretch do you own the specific copy of software on the website. When you download, you're copying from a copy you don't lawfully own. You may think, "same diff, it's 1:1 identical", but 117 doesn't specifically state that.

 

Lest you think this is some contortion I'm making up, copyright.gov specifically interprets the sale and purchase of backup copies by third parties to not be covered by 117, with this same reasoning.

 

...

Sure, the burden of proof is on the user, which includes proving legitimate ownership of a copy. You're suggesting that they somehow have to prove the backup copy they had made was from their copy not someone else's copy, if that is even possible. If not, they are SOL and have to pay thousands in damages for having their backup. That may be the case, but I'm not sure if the lawmakers wanted people to be SOL; the wording doesn't look like it. In the end, only a judge can make this decision.

 

The job of the copyright office is to process copyright registrations, not to make laws. Laws are made through legislation and by judges through court cases. The copyright office do have lawyers; lawyers often write contracts to persuade certain behaviours knowing full well that it won't hold up in court.

 

This isn't just about backups. The same section of US copyright law applies to people who want to use their cartridge roms with emulators and how they source their rom files. If a judge does not want people to dump their cartridges and use it with emulators they can certainly rule it into law.

 

Honestly I don't think the "backup" part is what matters here. I think it is great that there are exemptions but the bulk of it stays, arguing if the say 20 games I already own (and still posses, if I trashed them then no dice sorry) are OK to be downloaded or not does not even begin to address the actual extent of the matter.

 

People by far download ROMs of games they don't have (and never had) because they are curious and want to see them (not necessarily own them at all) or because the few ways to get them legit are too expensive (i.e.: eBay scalpers) or they were never released in their country (which is within the right of a publisher by the way).

A big part is played by convenience (one smokemonster pack to rule them all so to speak), another part is played by plain&simple human hoarding habits (you never know when you'll want to play Superman on N64 ... except that you do [that would be "never again"] but nonetheless).

Even if we allow everyone with a legit copy to download it again and again (like they allow you to do with digital only licenses for in as long as the servers stay up) the real core of the issue would not change, and that is you need to legitimately own before even thinking about a copy. Given that each download IS a copy I want to reiterate that as of now there's no fair use for those unless you already own them to begin with (and yes I am discounting education, critics, libraries etc... as that is not the point of the matter here).

I mentioned orphaned works before. I think there is a strong case for fair use. The benefits to the public are weighed against the rights of the copyright owner and with orphaned works the copyright owner doesn't exist.

 

When the copyright owner does exist but just doesn't care, doesn't respond to inquiries, the case for fair use is less convincing. I still say the collector market driving high prices and dealing with unreliable hardware you can't reasonably service weighs in the user's favour. None of this is an issue if the copyright holder simply sells their rom files.

 

How about a fair use defence for previewing or testing software. The problem with downloading a copy for preview is that there isn't much of a wider benefit. And you better delete the copy or buy it or your story is not believable. It's not a good fair use defence.

 

An acceptable fair use defence is copying for the purpose of commentary. This probably happens a lot on atariage. Somebody mentions a game and others download copies for the purpose of writing comments. The comments do have a wider benefit outweighing a single sale for the copyright holder. There's an argument there but be sure to delete the files when finished.

 

Yes, it's true about hoarding rom files. They're small, why delete them even if you never use them. Is it a problem for the copyright holder? Most people will pay for the rom files they use, if they are available for purchase.

Edited September 5, 2018 by mr_me

[AMenard]

You know what?

 

Too Bad. That's how everything in life is. Cars die. Pets die. Trees fall down. Televisions die. Stereos stop working. Shit happens.

 

You're not entitled to unending perpetual access to cheap consumer products from 30-40 years ago. That's why these things typically only carry a 90 day warranty on them.

 

Stereos can be easilly repaired, cars too. plenty of aftermarket for parts. Pets and trees are living things, not consumer goods. Old computers/consoles can also be repaired and keep running, this is why site like this exist. Media can also be transfered unto a newer medium.

 

And, yes, having bought the damn thing I'm sure well entitled to enjoy it perpetually as long as I can keep it running even if I have to fix it and replace every part, including medium, to keep it running. No amount of playing devil's advocate will change that fact.