WTF Nintendo?

Discussion in 'Retro & Arcade' started by flu!d, Jul 22, 2018.

  1. xsive

    xsive Member

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    I don't get it. What does it mean to "purchase replacement software in the correct format" ? As I understand it, your license is tied to your physical cartridge. If it breaks or wears out you need to buy a new one. Your license doesn't exist separate from the item. That seems reasonable to me?

    I don't know what this means or how it relates to software.
     
  2. elvis

    elvis Old school old fool

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    I'm not sure that it is (and I'm not a lawyer, nor an expert on this, so I pose this as a question not a statement of fact).

    I was always under the impression that with music (which is not a video game, so this could be both correct and an invalid example) that the inherent license was the work of art itself, and not the medium, and that the end user was legally allowed to "format shift" here in Australia (different in other countries, of course, but again to my knowledge France and Holland shared similar laws, but the US does not). I'm also of the understand that this was the case some time ago (I first heard about it with vinyl records being copied to cassette tape), and it could well have changed since.

    I'm curious to know if anyone has any actual legal experience in this, or if the law specific to game media is documented.

    A ROM is clearly a representation of original work. It's ones and zeroes copied to a chip, no different to a ROM image on a USB thumbstick.

    There's certainly legal precedent for emulation INDEPENDENT TO ROMs - important to note that last bit. The emulator "Bleem!" famously got taken to court by Sony over their selling of a commercial emulator to allow Playstation games to play on Dreamcast, and Sony lost as Bleem! only allowed legitimate Playstation games to run, and didn't enable piracy. So very important in every discussion to differentiate a ROM image (i.e.: a copy or "format shift" of ROM data) from an actual emulator.

    What blurs the lines even more are consoles like the Retron5:
    https://hyperkin.com/Retron5/

    This console allows the use of original cartridges, and is sold (currently) legally. But internally the system actually dumps the ROM chip to internal storage, and plays that ROM. So technically every single time this thing is fired up, it "format shifts" (copies) the game away from the physical cartridge and on to a different media.

    While all of this seems pedantic, what then is the difference between me "format shifting" my cartridge to a ROM file, and using that on an emulator? Technologically, there is none. But is there some sort of legal difference due to the "manual" nature of this? And what if my original cartridge breaks, and I still have the ROM image? Do I need to destroy that image?

    I recognise that all of this is pedantic argument too, and not at all identical to the concept of downloading a ROM you never owned the rights to in the first place (cartridge or otherwise). But this whole sub-argument of licensing, I feel, needs to investigate all of these issues to be complete. We live in a world where legal, commercial emulation exists. Technically speaking games like the "Mega-Man Legacy Collection" contain a ROM of old Mega-Man games. I could read that direct off the disc (which, technically requires "format shifting" it from the optical media to my computer's RAM) and emulate it independently of the game console it was designed for (and/or the internal emulator provided if it's the PC version).

    So again, with all of that in mind, I ask - are licenses granted only around the physical life of the object the data is provided on? And what if that's digital, and can be moved computer to computer (when my old computer breaks, I can install my Steam games on a new computer, with completely new hardware)? And if it is limited to the physical cartridge, can I take measures to increase the life of that cartridge, as long as it's only me playing the games (similar to how I used to record my vinyl LPs to tape, listen to the tape in the car which had no LP player, and re-record it when the tape stretched due to the hot summer sun)?

    I really don't think there are simple answers to any of these. And I'd legitimately like to know if anyone has any clue about the actual letter of the AUSTRALIAN law around these items (remembering that US law can be quite different from our own at times).
     
  3. elvis

    elvis Old school old fool

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    Last edited: Aug 10, 2018
  4. badmofo

    badmofo Member

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    Haha there you go! I'm more of a PC man so am unable to judge - does this look like a reasonable deal?
     
  5. power

    power Member

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    it's inline with other services of it's type.
     
  6. elvis

    elvis Old school old fool

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    It's part of a bigger deal. It's equivalent to XBoxLive and PSN in terms of allowing network play and offering member discounts. But Nintendo are offering retro games as icing on the cake.
     
  7. power

    power Member

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    yes now you get to rent games instead of paying a one off fee - that's progress!
     
    nimmers and elvis like this.
  8. elvis

    elvis Old school old fool

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    I am not condoning, merely reporting.
     
  9. power

    power Member

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    yeah, there's a thread in the Nintendo sub. Quite frankly I'm amazed it took Nintendo so long to do this.

    Last gen was way more consumer friendly.
     
  10. OP
    OP
    flu!d

    flu!d Never perfect, always genuine

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    That's not how licensing works, hence the modern concept of digital downloads not tied to a physical format. Cartridge or not I'm fairly certain you'll find that you still own a license to use the software.
     
  11. elvis

    elvis Old school old fool

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    The problem with Nintendo is they are so incredible "oldschool Japanese". The secrecy within their own org, even from their own people, is incredible.

    We as the general public will never know their motivations for anything. I mean, I can sit here and spitball that they might not want to cannibalise the sale of their "Mini" consoles, or that they want to maximise profits from new games in the eShop, or maybe that they feel being laden down with 30+ year old IP is a risk due to all of the "copyright should be shorter" screaming going on around the Internet right now. Or, it could be something completely different all together.

    Nintendo and Apple are about the only two companies I can think of in 2018 who can get away with this sort of "no direct dialogue with their customers" kind of situation. And honestly, the familiarities between the companies go a lot deeper than that too (and not always in a positive way).
     
  12. xsive

    xsive Member

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    Terrific post. IANAL and I don't know if Australian law is specific on these issues. I decided to Google Nintendo's licensing however and came across this document which discusses the issue in plain English. It refers to the well known US-centric "backup" exception whereby you can copy a game you own for archival purposes.

    The text seems to be consistent with the idea that your license is tied to the physical cartridge but also suggest you can take limited steps to protect your license in case of damage of the original media. I assume this is the legal position under which the Retron5 and similar operate.

    Please see above. Also note that licenses have changed over time. Modern agreements are indeed sometimes for an ephermeral license and these are often specifically intended to apply to several devices or be transferable between devices but, AFAIK, only for as long as the seller decides to continue providing such a service. Anyway, I don't think you can project backwards and say this model has always been the intended model.
     
    Last edited: Aug 10, 2018
  13. elvis

    elvis Old school old fool

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    I've read Nintendo's page on emulators many times. What's most amusing about it is that the Wii and WiiU Virtual Console as well as the NES Mini contains ROM images with iNES headers in them - a format developed by "software pirates" to dump/copy ROMs. That suggests (not proves, merely suggests) that Nintendo either used pirate software tools to dump ROM images, or perhaps even that they downloaded ROMs off the Internet to distribute under the platforms.

    Ignoring that (because it's irrelevant how Nintendo copied their own material, regardless of amusement factor), I don't want to take Nintendo's US website as a source of fact for either emulation nor Australian copyright law, given both (a) Nintendo of America's focus on US law (ignoring more liberal copyright territories like The Netherlands and France that allow copying of data to different storage media for personal use), and (b) Nintendo's clearly anti-emulation bias.

    It's also important to note that an EULA is not legally binding. It allows the license provider to state the terms and conditions of support, but is not a document that can override either patent not copyright law.

    And to be blunt about if, if Nintendo had a leg to stand on legally to shut down projects like the Retron5, they would have already. It's clear they're not able to, by virtue of the fact that they still are available for legal sale in the US.

    With all that in mind, I'm still keen to find out what Australian copyright law says about all of this. I also know that those waters have been muddied since the US Fair Trade Agreement of 2005, which made substantial changes to how Australia deals with copyrights set in the USA, even if our laws were previously offered more freedoms.
     
    Last edited: Aug 10, 2018
  14. elvis

    elvis Old school old fool

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    Regardless of the spread of opinions on the matter, at least this is providing amusing memes. :)

    nintendo_no.png
     
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  15. xsive

    xsive Member

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    I wasn't talking about emulation. I was talking about whether purchasing an old game means you hold a license for that product that can be separated from the original physical product and whether that license allows you to access digital copies of the physical product for use on other platforms and devices. Nintendo's own website seems to confirm that yes, the physical product and license are different things, but also that their license only permits limited forms of reproduction consistent with established legal precedent -- in the US at least. Other posters, notably flu!d, have argued that because they have a (possibly not working?) copy of a physical retro game they also (paraphrasing, please correct if inaccurate) have a (moral?) right to download ROMs of games for the purpose of emulation because Nintendo no longer provides them with an avenue for replacing their original media.

    Honestly, I find this position a bit extreme. It's certainly your right (again, in the US at least) to make personal backups for the purposes of personal archival preservation but accessing some else's copies because your copy broke seems questionable to me. One issue stems from you accessing a different revision of the game than the one to which you hold a license for. Another issue is that physical products (and backups) have an implicit shelf life. They wear out and break and maintaining them (and your backups) for years on end requires substantial effort. I think it's an open question whether it's reasonable to assume that you can transfer at will your license for a physical product into a floating digital license that effectively grants you rights to the media in perpetuity. Such rights appear to me impossible to track. Also, what happens when your physical copy disintegrates? Do you still have a license? How do you prove it?

    I never argued otherwise? It seems to me like the Retron5 et al operate under the US' archival backup protections. One difference between their on-system emulation and simply downloading a ROM is that the Retron5 requires a physical cartridge to be inserted, which could be interpreted as confirming your existing legal right to access that game.

    Agreed. Any ideas?
     
    Last edited: Aug 14, 2018
  16. elvis

    elvis Old school old fool

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    I repeat my earlier words: I'd like to hear from someone with Australian copyright expertise on what the law is here. I'm not going to take Nintendo USA's website as an authority on software licensing as represented by a ROM chip.

    Consider that almost any video game purchased today can be transferred to a completely different computer - I can play legally purchased DOS games under FreeDOS on my Linux laptop purchased a decade or more after the game was first published.

    If the argument is that "you can't download a ROM, you can only dump your own", then I question how you prove whether something was dumped or downloaded, given that a dump is a bit-for-bit perfect replica of the ROM that is used in millions of copies of a game, and any checksum you could do to prove authenticity would be identical on either cartridge or downloaded ROM.

    I still don't think this issue is black and white. flu!d might be arguing more to one far direction, but I don't think the concepts you're counter-arguing are accurate either, and too far in the other direction. To the best of my knowledge, AUSTRALIAN law offers somewhere in the middle (at least it did to my knowledge, but I know various Free Trade Agreements muddy those waters), but to avoid pointless back and forth, I'd love to hear an actual expert's opinion on the matter.
     
  17. xsive

    xsive Member

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    Well, yes, me too. But since there is no legal expert forthcoming we can either (a) stop talking about this or (b) discuss the principles involved and how they seem to apply elsewhere. Of the two options, I prefer (b).

    I assume you still have the original installation media. Otherwise we're back in the same place as cartridges. Again, I'm not arguing your right to run your backups in an emulator.

    I think the answer again is the physical media which confirms your rights. There's also a moral gray area here whereby your original media breaks and you access someone else's bit-perfect replica because you don't have a backup. I think the license shouldn't extend this far.
     
    Last edited: Aug 14, 2018
  18. elvis

    elvis Old school old fool

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    And if they're on floppy disk and I don't have a floppy drive? Is the ownership of a third party reading device for the media a mandatory part of the license agreement?

    Seems odd that for me to play a ROM legally, I need a third party ROM dumper (something Nintendo doesn't approve) to actually comply to the law.
     
    Last edited: Aug 14, 2018
  19. xsive

    xsive Member

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    What you're describing is not related to your rights over that content but the limitations associated with the physical media which grants you those rights. If the media is outdated and you can't run it then you should seek a new copy -- or the services of someone with access to a floppy drive.
     
  20. power

    power Member

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    Nintendo and other rights holders only really care if

    a) you are making money from said game or
    b) they are losing money because you are giving everything away for free.

    all the minutiae is unimportant in reality.
     

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