Legalities of ROM Distribution in the U.S. Version 021499
By NO CARRIER
The IDSA has been enjoying a field day closing down ROM distribution sites all over the web. People are running in the streets in panic over these assaults. Some brave soles try to iron out "compromises" with maker of software designed for older systems like Atari 2600 because there is not profit to be made off of them. (Like I'm going to pay $10 for Centipede when I can get MegaManX 4 for the same price.)
But there is one force more powerful then the IDSA. A force that is unbiased and "blind" and designed under the philosophy of "For the people, by the people and of the people." That force is U.S. Law.
Instead of compromising with the IDSA, why not hit them in the head with the same thing that they have been trying to beat ours, the law. If we play by the law, there is nothing they can do, no mater how much they hate it and try to stop it. I have been keeping the following info to myself for a day when a dark cloud hung over the Emulation Scene. That day is now, and, well, if they want to play rough, we'll play rough, and nice and legal too.
Most of the legal information that I used to forge this document came from an article on ABCNEWS.COM during the legislation of the 1997 U.S. Anti-Pirarcy Act. The site containing the info is no longer up from what I could tell. Never the less, here's the law presented to you in plain English. I must warn you, I'm not a law student or a lawyer, so I might of interpreted something incorrectly, but here goes.
Rights of a software product owner
If you buy a copyrighted software, you are entitled to certain rights, weather that software be stored on CD-ROM, floppy disks, an EPROM chip or a ROM cart. They are all fall under one catagory: software.
U.S. law allows you, the owner of a software product, to have three (3) copies of that product at once: the original, an installed copy, and an archive copy. The law does not give a definition to these terms. So, in the sense of a ROM image, you can arguably say that the image on your harddisk is being used to play Zelda 1 is the "installed" copy, the cart that you bough 10 years ago is the "original" copy and a copy of the ROM image on a floppy disk, tape, website or other medium is a "back-up" copy. But, only one of them can be in use at once. So, playing the game on your NES and on the PC at the same time is ILLEGAL.
The law does not state how you can make an archive copy of your game either. So, there is nothing saying that if you have a guy in New Mexico duplicate Super Mario World for you on an SNES ROM copyer, and then have him send it to you after you prove that you own the game.
If you got a copy of a software product as a "gift" (see section below) it is ILLEGAL to duplicate it. Reason: you are not the original copyright holder.
"But Nintendo has this on all there game manuals:"
WARNING:Copying of any Nintendo game is illegal and is strictly prohibited by domestic and international copyright laws. "Back-up" or "archival" copies are not authorized and are not necessary to protect your software. Violators will be prosecuted.
Nintendo is trying to intimidate you. The law is the law, and you are allowed to have up to three copies of your software. If they don't like it, tough! If you didn't agree to their terms when you bough the software, then don't worry. If they don't like it, tough!
However, this would be legal if they made you "agreed" to wave your rights and accept their terms, by either breaking a seal on the box, opening a paper bag for the diskettes (a method used in the old days by software companies,) other some other method. I don't recall any Nintendo cart having anything like that. Definitely not a Genesis or 32X cart. (At least the ones I bought.) But lets say they did. If you bought a used copy of that game from say, Funco Land, chances are, they won't have the packaging forcing you to agree to those terms, so your off the hook because no one presented that into to you when you bough the game.
The "Gift Policy"
I didn't believe this when I read it. It took me several scans through one part of the bill to fully understand a section of the 1997 anti-pircay law that I will refer to as the "Gift Policy." I believe congress passed this part of the act because it is not right to arrest and/or fine someone who was sharing a program that they bought in the goodness of their heart to a friend. But a line had to be drawn, so there is a limit of how many friends you can have.
As owner of a software product, you are allowed to make up to 10 copies of your software and give it to someone as a "gift" to someone. You can distribute that many as long as the total purchase cost (the cost of the software when you bought it in the store,) of the duplicated software does not go over $1000. So, if you bought Zelda 64 for $85 and you have a ROM copying device, you can legally give that game to 10 friends. LEGALLY. (85 * 10 = 850 < 1,000)
And check this out, you can repeat this cycle every 180 days that you own the product. So, does that mean that if you bough Super Mario 3 10 years ago means you can give it to 200 "friends" on the web? No. You can only give ten copies of it every 180 days, assuming, of course that the total cost of the duplicated software does not go over $1000. (The game would of have to cost have cost over $99.99)
What if the software costs $500? I image that you could only make two copies (500 * 2 = 1,000) every 180 days. If it costs of the software is over $1000, I think you are out of luck.
So, that means that if a person put up a ROM image of Super Mario 3 on a web server and lets 200 people download it, he is violating US law. But, if he/she puts up a request form for people to "request" getting that ROM from them, he/she can email it to the 10 people of their choice and repeat this policy 180 day later, as long as they are the owner of the software. (US Law does not say how you can and can't distribute software.)
One final note: if you have received a copy of a ROM from someone using the "gift policy," you CANNOT make a duplicate of that ROM, even for backup purposes. Reason: you are NOT the owner of the ROM image. But is it legal if they ask you to duplicate that software and give it to someone else as long as it is within the original owners "180-day quota"? I'm not sure. But I can say on thing, ROMS sites that don't control how many people are downloading their ROMs can get into some deep trouble if someone can prove that more then 10 people are downloading them everyone 180 days.
Sorry to tell you folks, but unauthorized modification of software (ROM images) that you legally own is illegal. Personally, I think this law is unfair. After all, if you buy a car, you are allowed to screw around with it as much as you want, assuming you don't void your warrantee.
So, that means that translation patches and "hacks" of a ROM game are illegal, so USE AT YOUR OWN RISK! But, it doesn't say anything about programs that make unauthorized hacks into ROM images. They are legal.
The 24-Hour "Trial"
I remember a software distributing company that used to distribute full versions of programs to people based on a "24-hour trial" principle. It worked like this: they would mail you, say Doom 2, and you could test it out for 24-hours. If you liked it, you keep it. (They billed your credit card the price of the game in 30 days.) If you didn't like it, you had to remove it form your computer and send it back to them.
I have seen sites out the web that distribute ROM images and other copyrighted software packages using this rule. But, instead of billing you, they relied on the "honesty policy," where if you like the product, you must go out and purchase the original. As far as I know, this law does not exist in the US law books. In fact, I think it was removed during the 1997 Anti-Piracy bill, but I could be wrong.
Renting out a software product to someone without the permission from the people that made the software is illegal. So, if you charge your friend $5 to borrow Zelda overnight without Nintendo's permission, your violating the law. Rental stores like Blockbuster Video have an agreement to rent games out.
What About Emulation?
Is emulation legal? I haven't read enough legal mumbo-jumbo to conform or deny any side on this issue, nor do I have the time to do so. :-( Hopefully, my work will inspire someone else to research this info to the end.