Nintendo issues CnD to tournament organizers for using "project slippi" an emulation mod allowing a 20 yr old game to be played online

[Lord Vile]

On 11/20/2020 at 5:40 PM, wanderingfool2 said:

 

You're blurring the lines between copyright and trademark.  Trademarks you need to actively try preventing people from using it...copyright not really.  If they allow older games, but pursue just the newer ones they don't really lose much legal authority or even make their case more difficult.  Trademark infringement, people are allowed to point to other examples though and use it to build a case to weak a trademark.

 

In regards to the topic, I totally understand why Nintendo would drop out and stop sponsoring it (and wouldn't blame them for doing so).  The C&D letter is really bad though, and really dislike the usage like that...with that said the organizer's were a bit stupid.  They are using illegally copied games...at the very least they should have required participants to own the copy (and then just do a rom patch)...it would have at least put them on a ground where a C&D might not have been possible.  [And if the contestants so happened to get their copies on the modified patched rom without owning it...well that wouldn't be on the organizers and no one would have known]

They have both trademark and copyright on the product and both apply. 
 

A ROM patch would still infringe a EULA where it almost certainly has something along the lines of the user not being allowed to modify the software. 

[Arika]

On 11/23/2020 at 1:18 PM, krakkpott said:

Nintendo's anti-consumer behaviour never got any backlash, that's why they keep doing it.

To be fair, I don't blame Nintendo for trying to distance themselves from the smash community.....I feel like they really dodged a bullet by not endorsing any of these tournaments. 

[Delicieuxz]

2 hours ago, Lord Vile said:

They have both trademark and copyright on the product and both apply. 
 

A ROM patch would still infringe a EULA where it almost certainly has something along the lines of the user not being allowed to modify the software. 

EULAs count for nothing as they have no authority to override actual laws concerning people's people's rights over their property. People are fundamentally allowed to modify their own property, even if a software publisher claims otherwise.

 

Further information on that is in this post: Understanding software licenses and EULAs: You own the software that you purchase

[Delicieuxz]

6 hours ago, Kisai said:

It's against Twitch's ToS to play pirated games. End point. There is physically no way to do the thing without everyone playing the same rom image, hence they are required to be playing a pirated copy of the game.

Pirating means stealing. But people who own a game have a right to play that game. So, if they play the game via one copy or another, what are they stealing?

 

The wish of some publishers, misguided and incongruous with the law as it is, is that people wouldn't own their software but only own a license to play the software. If people don't own the software but simply own a right to play it, then it is irrelevant which copy is played with - they are enacting their right to play the game no matter which copy of it is played.

 

But as people do own their copies of their game, the might be a question of 'what is a copy of a game?'

 

It would be the particular organization of information, the data, that makes-up that game. That data doesn't have physical permanence even when it's downloaded directly from the digital retailer it was originally purchased from. When a person uninstalls it and reinstalls it, the uninstalled formation of that data isn't resurrected, there's an entirely new formation of the data that forms a copy of the game for the person who owns an intangible copy of the game to exercise their right to play it with.

 

So, what difference does it make if that formation of the data which comprises the game comes from a download, a backup, or a ROM? A person who owns a copy of the game should be able to access their one copy from any source and have it still be their one copy of the game.

 

Quote

Slippi is a custom version of the Dolphin emulator for netplay. I can guarantee you, 0% people playing it are using legally obtained disc images. Because there are zero legal disc images, Nintendo hasn't authorized any. You also can't tell me people legitimately know how to backup their discs because the drives that can do it haven't been sold in a decade, and the other method requires modifying the console.

I don't know which needed drives haven't been sold in a decade, but it looks to me like backing them up is feasible:

 

https://ellisworkshop.com/dump-nintendo-discs-gamecube-wii-wiiu-games/

[SpaceGhostC2C]

6 hours ago, Technous285 said:

The US has loopholes in DMCA to let people who own original media "protected" by DRM to crack the DRM to make a personal-use backup copy of original media.

Australian Consumer Law outright says "you own a piece of media; it doesn't matter what DRM is used to 'protect' it, you're within your rights to break the DRM and make a copy of the media to use regularly whilst you store the original media away to preserve it. However if you transfer away ownership of the original media you must hand over the backup copy or otherwise destroy it.", which covers ALL forms of Audio-Visual media from things like 45RPM records, to compact cassette, 8-track, Laser Disc, VHS, Betamax, CDs, DVDs, BDs, and all forms of video game carts and discs.

 

If only more people understood that "piracy" (i.e., copyright infringement) is a distribution crime, not a consumption crime...

[xAcid9]

Ah yes, Nintendo shitting on their own die hard fans... again. Whoever make this decision need a slap in the face and wake up.

 

[wanderingfool2]

11 hours ago, Technous285 said:

Just because Nintendo doesn't provide ISO's and other dumps of games on their system, doesn't make it illegal for someone who owns original media to say "fuck you" and make their own dump of their copy of original media.

[-snip-]

 

That means, no matter how much Nintendo wants to bitch, whine and moan about it; I as an Australian can go online and buy & import something to dump something as old as a NES/Famicom cart or as new as a DS or Switch cart, and I'm protected by law to use that device to make the dump, play the dump in emulator or on a flashcart, and put the original media away in its box for collection purposes as long as I do NOT share the dump.

And guess what? I've actually had to procure a DS cart dumping USB device to make copies of my DS-era Pokemon games so I could load them on to a flashcart that I kept in my DSi whilst my original carts were stored away safely at home, before the carts started to fail.

Let's be clear, just because making a backup/dump of a game is legal in Australia and most certainly legal in the US.  That does not mean it's legal to use it.  I didn't read through all of the Austrian copyright law in regards to backups but from what I've seen it's referring to backup and recovery (if you have any good links that refers to the actual use of the backups please provide).  That would imply that using it, while still having a viable option isn't actually legal.  If you are protected by law to play the dumped game in an emulator, show the law that allows it (again, all laws I've seen are for backups, not utilizing the backup).  It's like saying, I can make backup copies of Windows and put it on 5 different machines that I daily drive...it's not allowed.

 

Bypassing DRM has little to do with this.  It's copyright laws.  What is bothering me is it's like the "fair use" argument, so many people think because they are talking over entire movies with it playing it's considered fair use, which in reality it isn't.

 

5 hours ago, Delicieuxz said:

I don't know which needed drives haven't been sold in a decade, but it looks to me like backing them up is feasible:

 

https://ellisworkshop.com/dump-nintendo-discs-gamecube-wii-wiiu-games/

While I don't agree with a 0% statement, it's I'm assuming a hyperbole (or rather a statement that in theory using an ISO may not be legal at all).  Either way, they actually were going to play with version 1.02, and my guess would be that a vast majority of people don't actually RIP their games themselves (for use in tournament play).

 

5 hours ago, SpaceGhostC2C said:

 

If only more people understood that "piracy" (i.e., copyright infringement) is a distribution crime, not a consumption crime...

Depends how you want to define piracy, but yea distribution.  Lots of people use piracy though as a catchall term for copyright infringement.  Copyright infringement can also be a consumption crime.

[Lord Vile]

17 minutes ago, wanderingfool2 said:

Depends how you want to define piracy, but yea distribution.  Lots of people use piracy though as a catchall term for copyright infringement.  Copyright infringement can also be a consumption crime.

As an example if you rent some form of media then rip it for consumption it’s still piracy. You haven’t distributed anything but have still pirated content. 

[SpaceGhostC2C]

Just now, wanderingfool2 said:

Copyright infringement can also be a consumption crime.

That is the mistake: it is not.

Copyright infringement is the violation of a legally granted monopoly. It requires you to act as a (ilegal) supplier. When my friend burns a copy of his CD for me, he is infringing copyright at that point, not I when I listen to it. 

 

(It's also why it's call copy-right in the first place: back when the printing press became popular, and before the industry conflated intellectual property with copyright, monopolistic rights to sell copies of books were granted. These (copy) rights could be limited to a number of years. However, you remain the author -retained the intelectual property- forever, and anyone misrepresenting himself as the author would be guilty of plagiarism, the true crime against intelectual property. Reading books, on the other hand, was not a crime -well, except when it was a different crime ).

 

I can buy a Batman comic, draw a mustache and a monocle on batman on every frame, then say I created Britishman, our new hero. It's not copyright infringement as long as I keep it to myself. It's not a matter of fair use, but of private use (I bring is up due to the "modifying software" bit of this thread's discussion).

 

Robinson Crusoe cannot violate copyright.

(well, until rescued)

[Phoned_]

MoistCr1tikal just released a video on this and had a great point, what's it gonna do when they have an emulator for a game that is 20 years old and barely makes them money.

[Lord Vile]

Just now, Phoned_ said:

MoistCr1tikal just released a video on this and had a great point, what's it gonna do when they have an emulator for a game that is 20 years old and barely makes them money.

Doesn’t matter. Still piracy. 

[wanderingfool2]

8 minutes ago, SpaceGhostC2C said:

That is the mistake: it is not.

Copyright infringement is the violation of a legally granted monopoly. It requires you to act as a (ilegal) supplier. When my friend burns a copy of his CD for me, he is infringing copyright at that point, not I when I listen to it. 

I can't get the exact URL for this on the government Canada website, but here is a quote from the gc.ca website regarding copyright (Actually found another site, https://www.heerlaw.com/copyright-faq)

Quote

Copyright infringement occurs where a person wrongfully uses your work without your permission or does anything only an owner is allowed to do, as stated in the Copyright Act . Infringement may include acts such as copying, performing, selling/distributing or posting your work on the internet without your permission.

i.e. If I go and steal a copy of a game, play it, and return the copy of the stolen game (without anyone knowing it was stolen)...it is still copyright infringement

 

Copyright infringement is when someone uses a your work in a way that you did not want (and in a way that is protected by the law)...so yes, it can be a crime of consumption.

[CarlBar]

12 hours ago, Kisai said:

and the other method requires modifying the console.

 

Which speedrunners and some competitive gamers routinely do. Seriously how do you think things like crowd control and randomiser races work. they eitheir involve modding the console or inserting somthing between the console and the media to modify the data as the console reads it.

[SpaceGhostC2C]

2 minutes ago, wanderingfool2 said:

 a person wrongfully uses your work without your permission 

This is as vague as it gets. Like, if i grab a hammer by its head and hit with the handle, without asking its manufacturer, I'm "wrongfully using their work without their permission"  

It gets more specific when it says:

 

2 minutes ago, wanderingfool2 said:

Infringement may include acts such as copying, performing, selling/distributing or posting your work on the internet without your permission.

all of which confirm it as a distribution crime.

2 minutes ago, wanderingfool2 said:

i.e. If I go and steal a copy of a game,

that's most certainly theft.

 

2 minutes ago, wanderingfool2 said:

Copyright infringement is when someone uses a your work in a way that you did not want

Once again, that's the most vague and overreaching statement possible. Of course it's not that.

2 minutes ago, wanderingfool2 said:

(and in a way that is protected by the law)

Oh, that's the meat. So, what does the law actually say?

 

2 minutes ago, wanderingfool2 said:

...so yes, it can be a crime of consumption.

You've provided no support of that, si as you can imagine I'll hardly accept that as a conclusion, especially knowing what copyright actually is.

[wanderingfool2]

9 minutes ago, SpaceGhostC2C said:

You've provided no support of that, si as you can imagine I'll hardly accept that as a conclusion, especially knowing what copyright actually is.

And you offer no support at all...convenient.  If you download a copyrighted game, play it and delete it (without distributing to anyone), it is a copyright infringement. (And that isn't distribution, that's consumption).  It doesn't matter if the government Canada had a vague line, it still puts it in consumption as well.

 

The purpose of this anyways in regards to the topic is that using ROM's might not be legal under the current copyright system (backups are legal, but using those backups to play games might not be).

[Lord Vile]

14 minutes ago, SpaceGhostC2C said:

This is as vague as it gets. Like, if i grab a hammer by its head and hit with the handle, without asking its manufacturer, I'm "wrongfully using their work without their permission"  

If you use it like that it voids warranty. Most spades/shovels have that condition when used for prying.

[Master Delta Chief]

Considering the continuing discussion on this particular topic,  at the end of the day, all that matters is that this action taken by Nintendo is just pathetic and unnecessary and shows how the current IP laws needs changing so it's less of a complicated mess as it is right now and can become more consumer friendly rather than benefitting large corporates.  

[SpaceGhostC2C]

11 minutes ago, wanderingfool2 said:

IF you download a copyrighted game, play it and delete it (without distributing to anyone), it is a copyright infringement.

i think that's true in Japanese law. Elsewhere I know about, no it isn't. Downloading isn't copyright infringement. The person uploading is the one infringing, and copyright enforcement has been acting accordingly, prosecuting uploaders, links sites, etc. That's also why copyright management firms seeking out-of-court compensations use torrent to obtain IP addresses of people uploading and send them letters. People get confused because when you download a torrent you are simultaneously uploading the bits you already got, so they think "I was downloading somethign and I got the letter!". Wrong. You were uploading the parts you've already downloaded, and that's what got you the letter.

 

Quote

 

(And that isn't distribution, that's consumption). 

Exactly, see above. It's the textbook example of consumption (downloading an playing) not being copyright infringement while distribution (uploading so I can download an play) being copyright infringement.

That's also why they sent the lawyers after Napster, but only stupid Metallica ads after its users.

 

 

Quote

 

It doesn't matter if the government Canada had a vague line, it still puts it in consumption as well.

It does not. The only content it provides clearly points to distribution, as it should.

 

Quote

The purpose of this anyways in regards to the topic is that using ROM's might not be legal under the current copyright system (backups are legal, but using those backups to play games might not be).

The statement "you can make a backup, as long as you don't use it therefore making it as good as not having a backup" is Kafkian.

Of course you can use your own backup in any way you want, provided said way keeps it entirely private (back to Robinson).

[wanderingfool2]

16 minutes ago, SpaceGhostC2C said:

i think that's true in Japanese law. Elsewhere I know about, no it isn't. Downloading isn't copyright infringement. The person uploading is the one infringing, and copyright enforcement has been acting accordingly, prosecuting uploaders, links sites, etc. That's also why copyright management firms seeking out-of-court compensations use torrent to obtain IP addresses of people uploading and send them letters. People get confused because when you download a torrent you are simultaneously uploading the bits you already got, so they think "I was downloading somethign and I got the letter!". Wrong. You were uploading the parts you've already downloaded, and that's what got you the letter.

 

Exactly, see above. It's the textbook example of consumption (downloading an playing) not being copyright infringement while distribution (uploading so I can download an play) being copyright infringement.

That's also why they sent the lawyers after Napster, but only stupid Metallica ads after its users.

It's easier and more lucrative to go after uploaders (especially in the US...no so much in Canada, which is why there aren't really too many lawsuits).  The reason being that since it's distribution you can claim a lot more.  It's still an infringement though to download, it's just usually colloquially called theft (but again, the punishment is so small that it's not worthwhile pursuing).  Lawyers are expensive, you go after the ones who can make you the most return.

 

20 minutes ago, SpaceGhostC2C said:

The statement "you can make a backup, as long as you don't use it therefore making it as good as not having a backup" is Kafkian.

Of course you can use your own backup in any way you want, provided said way keeps it entirely private (back to Robinson).

And this is the statement that really is getting me mad, at the lack of understanding that some things have limits.  (i.e. just like people using "reaction" videos as fair use claims improperly).

 

Just because you are allowed making a backup, does not mean you can use that backup for any purpose you want!  Guess what you can use a backup for, recovering media...who would have thought such a novel concept.  There are limited things you are allowed to do with a backup, and the ease of use is not one of them.  The copyright system is literally saying that you can't make backup copies and use it as you wish.  It is why I am saying that it would have to be tested in court, because there is enough vagueness in the laws that you might be able to argue certain ways, but using ROM's may very well be violating copyright law in this context (e.g. of fair use of a ROM would be if your retail version no longer works)

 

Also, this is in a tournament setting, so no it's not private anyways.

[SpaceGhostC2C]

40 minutes ago, wanderingfool2 said:

It's easier and more lucrative to go after uploaders (especially in the US...no so much in Canada, which is why there aren't really too many lawsuits).  The reason being that since it's distribution you can claim a lot more.  It's still an infringement though to download

No, there is no controversy here, we really can't continue to discuss anything else if the example you put forward is precisely the one we know for sure to be a counter-example of what you are saying. I'm not going to cross the alternative facts' bridge.

 

 

[wanderingfool2]

8 minutes ago, SpaceGhostC2C said:

No, there is no controversy here, we really can't continue to discuss anything else if the example you put forward is precisely the one we know for sure to be a counter-example of what you are saying. I'm not going to cross the alternative facts' bridge.

 

 

It's not alternative facts.  Under the way you are saying, I could literally download a copy (not torrenting) of a copyrighted work without punishment which is not the case.

 

To say ROM is legal is just like all those who mindlessly spout fair use to defend reaction videos.

[SpaceGhostC2C]

9 minutes ago, wanderingfool2 said:

It's not alternative facts.  Under the way you are saying, I could literally download a copy (not torrenting) of a copyrighted work without punishment which is not the case.

Except it is the case (with some exceptions, like the case of Japan, which I already mention). You are correct in that there is copyright infringement in the act you describe, but you fail to attribute it to the right actor: the infringement is on the party supplying the file so you can download it.

You're just in denial at this point.

 

[wanderingfool2]

1 minute ago, SpaceGhostC2C said:

Except it is the case (with some exceptions, like the case of Japan, which I already mention). You are correct in that there is copyright infringement in the act you describe, but you fail to attribute it to the right actor: the infringement is on the party supplying the file so you can download it.

You're just in denial at this point.

 

No, because again if the host is in a place where copyright laws aren't held (i.e. the actor isn't in violation of local law) downloading it is still illegal.  You are also focusing on a singular point and missing the entire argument that backup's are only allowed to be used as backups (otherwise it does constitute as copyright infringement).

 

Anyways, here is the Canadian law in regards to backup copies (US and I'm assuming Australia have similar terminology)

Quote

29.24 (1) It is not an infringement of copyright in a work or other subject-matter for a person who owns — or has a licence to use — a copy of the work or subject-matter (in this section referred to as the “source copy”) to reproduce the source copy if

    (a) the person does so solely for backup purposes in case the source copy is lost, damaged or otherwise rendered unusable;

    (b) the source copy is not an infringing copy;

    (c) the person, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented; and

    (d) the person does not give any of the reproductions away.

All 4 statements must hold true and statement a clearly states that you are wrong that you are allowed doing whatever you want with the backup.

[DeScruff]

On 11/23/2020 at 6:06 PM, wanderingfool2 said:

Should it be, no...is it, maybe.

Using a personal backup is legal (In the US) as precedented by Sony Corp. of America v. Universal City Studios, Inc.
https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc.

It is a perfect case of someone making a legal backup in a different medium (Live broadcast -> VHS) for personal use at a time of convenience for that person.

This argument failed in A&M Records, Inc. v. Napster, Inc., and MGM Studios, Inc. v. Grokster, Ltd. because those involved distribution of those backups, which Bitter's example does not include.

[Delicieuxz]

1 hour ago, wanderingfool2 said:

No, because again if the host is in a place where copyright laws aren't held (i.e. the actor isn't in violation of local law) downloading it is still illegal.  You are also focusing on a singular point and missing the entire argument that backup's are only allowed to be used as backups (otherwise it does constitute as copyright infringement).

 

Anyways, here is the Canadian law in regards to backup copies (US and I'm assuming Australia have similar terminology)

All 4 statements must hold true and statement a clearly states that you are wrong that you are allowed doing whatever you want with the backup.

There's more about making copies of computer programs a little later in the Canadian copyright act. It does say that people may backup their computer programs and also modify them (which bypassing DRM would be a case of) as necessary in order to use them:

 

https://laws-lois.justice.gc.ca/eng/acts/C-42/page-13.html#docCont

Computer Programs

Marginal note:Permitted acts

30.6 It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright, or has a licence to use a copy of the computer program, to

• (a) reproduce the copy by adapting, modifying or converting it, or translating it into another computer language, if the person proves that the reproduced copy

  • (i) is essential for the compatibility of the computer program with a particular computer,

  • (ii) is solely for the person’s own use, and

  • (iii) was destroyed immediately after the person ceased to be the owner of the copy of the computer program or to have a licence to use it; or

• (b) reproduce for backup purposes the copy or a reproduced copy referred to in paragraph (a) if the person proves that the reproduction for backup purposes was destroyed immediately after the person ceased to be the owner of the copy of the computer program or to have a licence to use it.