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The Question of ROMs
by Chuck Cochems
special guest writer
Freedom and independence will survive capitalism.- Rush Limbaugh, The Rush Limbaugh Show, 13 January 2000, 13:56 CST
SICK AND TIRED
Comedian Bill Cosby has a routine in which he talks about the way he and his little brother Russell would often aggrevate his exasperated mother . "I'm sick of this," she would roar at them, and "tired always followed sick," Bill Cosby would add with a grin. "Sick and tired. Sick and tired. I am sick and tired ...." You get the picture.
You know, one day mother started into it. She said, "You make me sick." "And tired," I finished. [long pause while the audience laughs] I don't remember anything that happened that day.You want to know something? I'm sick. I'm tired, too. I'm sick and tired. I'm so sick and tired of all this. No, I'm not having any trouble remembering what this is. I know quite well why I'm sick and tired. Do you want to know why I'm sick and tired? Well, I'll tell you.
CODE IS CODE
We all know what
ROMs are. They're the old programs that you run on an emulator.
These are either binary dumps of code originally stored in ROM (hence the
name) or image files of old disks in obsolete formats. A run-of-the-mill
personal computer (PC for short) can't handle the originals directly without
specialized adapters, and these cost a lot of time and money to cook up.
It's a whole lot easier to convert that old package of programs into somethat
that my PC can handle. Besides, there will come a time when that
old system and that old program base is going to up and croak. You
won't be able to use it anymore unless you've converted it into a ROM for
use with an emulator That's not me talking, that's the physics of
entropy. That is the chief reason why ROMs exist, and that's also
the cause of the problem.
It's nice to know exactly where the vendors come up with their silly and cockamamie "exclusive rights" claims. I didn't know until last year that this falls under a specific provision of copyright law, 17 USC 106. Let's take a look at it, 'cause I want to make sure everybody's on the level before I go on.
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following ... (emphasis added - ed.)Now let's home in on section 2 of this provision, because here is where the problem lies.
Changing the format ... from the original cartridge to a disk format also violates Nintendo's rights to prepare derivative works under 17 USC 106.2.That, in a nutshell, is the primary argument of Nintendo and the rest of their ilk. They claim the absolute right of derivative works, which just so happens to include ROMs. You can't so much as sneeze on their programs without orders signed in triplicate, sent in, queried, sent back, revamped, sent in, sat on for a decade or so, and then lost in a filing cabinet stuck in a forgotten warehouse somewhere in the frozen tundra just outside of Vladivostok with a big fat padlock on the door. Performing a format change to a program that you have legitimately obtained? God forbid!
Subject to sections 107 through 120 ...What this means, in a nutshell, that a copyright owner's right to a derivative work is not absolute. Not duplication, not derivation, not adaptation, not performance - none of them are absolute. That's why the vendors have had to cook up this EULA nonsense - they're trying to force restrictions on you which, in most cases, they have only a limited right to do and in some cases (reverse engineering, etc.) absolutely no legal right to do. So you see, these so-called "exclusive rights" that Nintendo and other proprietary-minded vendors aren't so exclusive after all. In fact there are some well-known exceptions to these rights.
A NEW APPROACH TO AN OLD PROBLEM
So how do we get
around this quandary? How can emufans find a legitimate means of
coming up with ROMs of their legitimately purchased games for use with
an emulator? That's the US$64,000 question, isn't it?
You know, I must have spent at least two months or more arguing with the Scribe on this very issue, and believe me, I tried all the regular arguments. Backup theory ... public fair use ... development purposes ... operational adaption ... and so on. He shot me down every time because of that silly, way-too-narrow definition of "derivative work" that is embodied in copyright law (17 USC 106.2). Yes, I was getting sick and tired of this, too. Why was he doing this? Wasn't he supposed to be the emuscene's best friend? Our original discussion ended when he cut me off, claiming that I was positing dogma instead of arguing logic. I wasn't being dogmatic, I was just trying to prove my point. After a while, though, once things had cooled down, I began to re-read our arguments, and something that he said caught my eye.
If the emuscene is ever going to find justification for ROMs, cart dumps in particular, then they're going to have to find a new approach. None of the old arguments will work. Nintendo, Sony, the IDSA, and their allies have made sure of that. I think you're going about this the wrong way. If there is an answer, then I believe you'll find it in the Betamax case. That's the key to solving the problem.He's right, you know. We can't keep on defending ROMs the old way. Those defenses won't fly in court. We, the humble emufans, plain and ordinary average users, don't enjoy the same legal rights as do the emucoders. They're developers. They get to enjoy developer rights. We're users. We don't. I guess it's time we stopped bitching about it and get used to that sad fact, 'cause its not changing anytime soon.
THE BETAMAX CASE
In 1983, the U.S. Supreme Court issued a landmark ruling in the case of Sony v. Universal whose implications have dogged the monpolistic intentions of many a proprietary-minded vendor ever since. The so-called Betamax case is of particular interest to those looking for a legal means to make and use their own ROMs, because it is here where the concept of personal use was first defined. The case was argued on the merits of the fair use defense (17 USC 107), so I reproduce the statute for your convienence.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include --For now, I want you to sit back and watch the playback as the Supreme Court finds legal justifcation for the concept and act of personal use under the fair use statue (17 USC 107) of copyright law. In this particular case, we are dealing with the unauthorized recording of a live television broadcast by use of a potentially infringing technology, the Sony Betamax videotape recorder, in a manner other than that intended by the program's vendor (playback at a later time). You're going to hear references to "time-shifting," which was the court's legal shorthand for the primary issue at stake, so pay attention.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
- the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
- the nature of a copyrighted work.
- the amount and substantiality of the portion(s) used in relation to the copyrighted work as a whole.
- the effect of the use upon the potential market for or value of the copyrighted work.
[The fair use doctrine] identifies various factors that enable a Court to apply an "equitable rule of reason" analysis to particular claims of infringement. Although not conclusive, the first factor requires that "the commercial or nonprofit character of an activity" be weighted in any fair use decision. If the Betamax were used to make copies for a commercial or profit-making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court's findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one considers the nature of a televised copyrighted audiovisual work (17 USC 107.2), and that timeshifting merely enables a view to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced (17 USC 107.3) does not have its ordinary effect of use.Let's be clear right now about what the Supreme Court said. A noncommercial, nonprofit use qualifies for fair use. All personal use is by its very nature noncommercial and nonprofit. If you're going to go commercial, then you have to make the appropriate interpersonal arrangements. If you're going to make a profit, then you've got to have some form of commercial enterprise, legal or not. The concept of personal use is based on the principle that all activity involved rests solely with you. No one else is involved - not you family, not your friends, not your co-workers, not your email recipients - no one except you and you alone. Since no one else is involved, personal use cannot be considered commercial because you are lacking the one thing that drives commercial activity - the existence of a forum for commerce. You can't have a forum when there's only one participant; hence, all personal use is by its nature both noncommercial and nonprofit.
This is not, however, the end of the inquiry because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work" (17 USC 107.4). The purpose of copyright is to create incentives for creative effort. Even noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have, but a use that has no demonstrable effect upon the potential market for or the value of the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial use would merely inhibit access to ideas without any countervailing benefit.Sounds just like what a lot of us emufans of legitimate purpose have been going through these past two years, doesn't. A use that has no demonstrable effect upon the market ... or value ... need not be prohibited.... That's part four of the fair use test - the one that Raymond Nimmer said was the most important. We've already passed the rest of the test, and you know as well as I what that means.
Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial users are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is shown by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed; but if it is for a noncommercial purpose, the likelihood must be demonstrated.The Supreme Court realized that personal use is an entirely different matter, one quite different from commercial use, when it comes to potential intellectual property infringement. They acknowledged that personal use has the potential use to infringe, but not nearly as much as commercial infringement. Noncommercial uses, such as personal use, only have two hurdles to jump - "the particular use is harmful," and widespread activity "would adversely affect the potential market." This is why Bung lost their court battle with Nintendo over the Doctor V64 (Nintendo v. Bung), since Nintendo was able to prove that the device, while advertised as one that had personal uses, could obviously be used for infringing commercial purposes. I'm going to come back to cart dumpers a little later, but just remember this. Commercial use will always fail to jump these twin hurdles. Personal use is an entirely different manner. If a vendor wants to void the personal use defense, then it has the responsibility of proving potential harm. Sound familiar? It ought to. It's not your responsibility to establish noninfringement. It's the vendor's. They've got to prove that your activity goes beyond mere personal use.
In this case, respondents failed to carry their burden [of proof] with regard to home time-shifting. The District Court described respondent's evidence as follows: "Plantiffs' experts admitted at several points in the trial that the time-shifting without librarying would result in 'not a great deal of harm.' Plantiff's greatest concern about time-shifting is with 'a point of important philosophy that transcends even commercial judgement.' The fear [was] that with any Betamax usage, 'invisible boundaries are passed: 'the copyright holder has lost control over his program.'"Universal and its allies were arguing that they were losing control over their rights to their works - specifically, the time that they chose to dictate when and how their television programs could be viewed. Fortunately, the high court didn't buy that argument.
Most of the plantiff's predictions of harm hinge on speculation about audience viewing patterns and ratings, a measurement system which Sidney Sheinburg, MCA's president, calls 'a black art' because of the significant level of imprecision involved in the calculations.Whoa! Vendors cannot speculate about the potential harm of infringement! Why? Becasue speculative damages cannot be predicted with any accuracy! They have to provide reasonable proof, not wild assertions. Remember, one of the reasons Sony lost its lawsuit against Connectix was that it failed to prove infringement (Sony v. Connectix). Their own presumptive evidence was both contradictory and inconclusive, and the Court of Appeals nailed 'em on it. That means that the broad policy statements about "potential market impact" for which certain vendors (a-hem!) are just that - statements. They don't establish or prove a damn thing unless they provide the facts to back them up.
Alright, now that you hopefully understand the legal background, it's time to take the big leap. It's time to lay out the personal use defense for ROMs in easy-to-understand terms.
- Copyright law says that I have the legal right to archive computer software that I have legitimately obtained (17 USC 117). It says nothing whatsoever about preserving the original format of the software in question, nor does it require that I have to follow the vendor's intent in this matter. I can make my backup on any media and in any format I want. So much for disk image ROMs. Just because it's a disk image doesn't mean it's not a backup
- Case law has demonstrated that an uncirculated, unauthorized derivative work based upon a program originally stored in ROM can be noninfringing (Nintendo v. Galoob). As long as I paid for the original, and as long as that noninfringing derivative work remains with me, then no harm is done to the original vendor. So much for binary dump ROMs. They are not automatically infringing.
- Both copyright law and case law recognize a user's need to modify a given computer program in order that it may perform as designed irrespective of vendor desire (17 USC 117, Vault v. Quaid, Narrell v. Freeman). Such works are certainly derivative, but the courts have ruled them to be noninfringing. So much for the vendor's infringement claims. Just because a derivative work is made doesn't automatically mean it's infringing.
- The U.S. Supreme Court has ruled that the personal use of copyrighted material, irrespective of how those copies are made, or in what format they are stored - even if it differs from the original, is noninfringing (Sony v. Universal). Personal use is noncommercial use. The Supreme Court made the case that noncommerical use is noninfringing, so long as it does not cause harm to the vendor. Personal use does not cause harm to the vendor by its very nature - the vendor doesn't know about it and has no access to works derived under personal use. They can only speculate about its possibly infringing nature, and they are forbidden by the Supreme Court from engaging in speculation. If a ROM is made for the express purpose of personal use, then it qualifies for protection under the high court's Betamax decision.
ROMs made for personal use are noninfringing!
So now that we've established the legality of making ROMs from legitimately obtained originals under the concept of personal use, how do we go about actually doing it? Again, I quote from the Supreme Court's ruling.
One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.Well, guess what? The Copright Act has been amended to include the very "flat prohibition" that the court noted. It's not as simple as you might think to make your own ROMs due to the new law in town, the one that the Clinton Administration shoved down the users' throats with the gleeful cooperation of the vendors. What am I talking about? I'm talking about the Digital Millenium Copyright Act (DMCA), the 1998 amendment to the Copyright Act, and we have the Scribe to thank for informing us about an issue that has now become cold reality. It's the first part (17 USC 1201.a.1-3) that concerns us the most, and I reproduce it straight from the EmuFAQ.
A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.3. As used in this subsection,
B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title.
C) is marketed by that person or another acting in concert with that person, with that person's knowledge, for use in circumventing a technological measure that effectively controls access to a work protected under this title.
A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure without the authority of the copyright owner.
B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to that work.
Whatever the future percentage of legal versus illegal home-use recording might be, an injunction which seeks to deprive the public of the very tool or article of commerce capable of some noninfringing use would be an extremely harsh remedy, as well as one unprecedented in copyright law.If I'm reading this right, what we have in the DMCA is an unjust law. It goes against the very nature of copyrights, and sets up a fundamental contradiction in United States intellectual property law. There's a whole discussion we can go into on that subject, but I'm not going there. I'm not a legal scholar, and that's not my purpose. My purpose is to provide you with a legal means of making your own ROMs, and that's what I'm about to do.
As for using our newly made ROMs, what's the issue? None. That's what personal use is all about. These are my ROMs, made from my legitimately acquired games, using my equipment in the privacy of my home for my use only. I'm not going to sell them or give copies to friends. I'm defintely not going to upload them to the Internet. So I say again, what's the issue regarding the personal use of such ROMs? None! Period! That's the beauty of personal use! The key word is personal. These ROMs are made for personal use, not commercial use. No intent to distribute, no intent of profit - nothing. If I was going to do anything with them other than that, then I couldn't defend my actions under the concept of personal use. It's no longer personal. I'd have to use the concept of public use instead, and that's a road down which the courts have pretty much said we average users can't travel. We're not developers. We're not emucoders. We're users - acquiring, operating, and sometimes adapting these programs for our personal use. Again, quoting the Supreme Court,
A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.So tell me, does my personal use of ROMs derived from my legitimately purchased games qualify as "a particular use [that] is harmful" or one that "would adversely affect the pontental for that copyrighted work? The answer is NO. I've paid for the game, made the ROM on my own equipment, and I'm not going to pirate it to everybody in sight. No infringement. None. My personal use doesn't harm the vendor's potential market, and do you want to know why? Because the program's already bought and paid for, and all copies I make stay with me. That's why.
Running under emulation: As we all know by now, emulation is perfectly legal. It is a fact that many emulators are literally works-in-progress and require ROM forms of programs in order to work. It is a fact that developers and emucoders are the only ones who currently have the legal right to make as many ROMs as they need of whatever programs they want for their various projects (Sega v. Accolade). Guess what? I'm not an emucoder. I'm not a software developer. Why can't I make a ROM from a game that I've already bought or obtained through other legitimate means? I have the original sitting right here, and I have the means to make the ROM. I'm not about to start up a software piracy operation. All I want to do is run my legitmately obtained program on an emulator, which is my legal right. As long as it's going to be for personal use, then I have the right to make a non-infringing ROM of that program (Sony v. Universal) and run it on my non-infringing emulator (Sony v. Connectix)."Hey now, wait just a doggone minute!" scream the offended vendors. "My EULA say you can't do thus-and-so with my product. That's a legal contract, bub, and you're bound to honor it!" May I humbly remind the vendors that any overreaching provision of a EULA, one that violates my rights as a user or potential developer, have no legal grounds (Vault v. Quaid, Lasercomb v. Reynolds) and may therefore be ignored? Such provisions are often put in for the sole purpose of raising a barrier to legitimate competition, like, say, using an emulator instead of the actual intended hardware. I'm sure you've seen phrases like, "You may not rent or lease ..." and "You may not reverse engineer ..." and "Copying is illegal and strictly prohibited ..." in many EULAs. Newsflash, vendors - all of these activities are specifically permitted by copyright law, so any EULA clause to the contrary isn't worth the effort you took to set it down. Federal case law has ascertained that overreaching EULA provisions erect an arficial barrier that is against the spirit of copyright, since the end result is an absolute monopoly over your product's market - one which copyright law does not and cannot confer. Federal case law trumps your precious EULA every time, sweetheart. The same holds true for personal use. I have a legal right to personal use; therefore, I can do whatever the hell I want with your program, even if it violates that EULA, so long as I remain within the bounds of personal use. Your EULA says I can't change the format of your program, which may be required so I can run it on an emulator? Well, to hell with your EULA! I most certainly can and will, because I have the legal right to do so under personal use.
Operational adaption: Copyright law says that I can adapt a program as need requires in order to get it to work properly on my system (17 USC 117.a). The vendors say I can't make ROMs of my own software because adaption is their exclusive right (17 USC 106.2, c.f Nintendo v. Computer & Entertainment). Tell me something, Mr. Vendor - how else am I going to be able to use my legitimately purchased software on an emulator, which is my legal right (Sony v. Connectix), if the emulator that I want to use won't work with anything except ROMs? Huh?! Tell me! You can't, can you? Well, I can. It's just like what Sony did when they invented the Betamax. They had to come up with a way to record a live broadcast of a television program so the average viewer could have a convienent means of watching it at a later time. The Supreme Court said that was perfectly legal - i.e., no infringement was involved (Sony v. Universal). That videotape recording was for personal use, not commercial use. TV shows are broadcast to anybody with the equipment to receive them, but you have to record them onto magnetic media, such as a videotape, in order to watch them later. Is it just me, or does that sound awfully like that dreaded "format change" that certain vendors are always bitching about as their "exclusive right?" The Supreme Court said that the format change from live broadcast to videotape was perfectly legal for noncommercial use. Their ruling has been affirmed in other court cases involving personal use of other media, too, such as the Rio case (RIAA v. Diamond). It stands to reason that any format change involved in making my own ROMs from my legitimately obtained software for my own personal use is also perfectly legal. It is a legitmate, noninfringing operational adaption in order to exercise my legal right as an average user to run that program under an emulator.
Freedom from vendor constraint: One of the most curious rights on the list is being able to use a program "in a manner which the original vendor may not have intended" (Narrell v. Freeman). Let's face it - these guys never intended for their programs to be used in an emulated environment. It is a testament to the emucoders that many of these programs even work at all, given such conditions. While the vendors may have not intended to provide their programs to the emuscene, they can't stop the emuscene from enjoying them just as much as if emufans were using the intended platform instead. I have the legal right to operate my software irrespective of vendor desire, so long as I do not infringe upon their rights. My personal use of ROMs does not infringe upon their rights, because my actions are strictly personal. What I do in the privacy of my own home has no impact on their precious market share. I'm not affecting that market by my personal use, either directly or indirectly; therefore, my personal use does not infringe on their rights as a vendor.
Any individual may reproduce a copyrighted work for a "fair use;" the copyright owner does not possess the exclusive right to such a use.Well, well, now, how 'bout that? I guess developers aren't the only ones who are entitled to the fair use defense after all. Personal use qualifies as fair use, and is a protected act under the Betamax ruling! Very interesting ... very interesting, indeed. I hope the Scribe is reading this, because he may end up having to rewrite all that stuff in the EmuFAQ about ROMs.
With that, my
diatribe is over. I've proven my point. There exist a legitimate
means for the average user to make their own ROMs from their own leigitmately
obtained programs, and that is the protected freedom of personal use.
So stick that where the sun don't shine,
Mr. Repressed Vendor! That is, assuming you can get it past the royal
wedgie I've just given you. You can scream, "Software piracy!" all
you want, but it doesn't make one damn bit of difference. Not one.
As long as I'm making my ROMs for personal use, there's not a damn thing
you can do about it. If you don't believe me, then go argue with
the Supreme Court.
You want to know something? I own a Sony PlayStation. I own a couple of Nintendo consoles, the NES and Super NES. I own lots of original titles for these three consoles. Amost all emufans out there are in the same boat. Guess what? I can't take them with me everywhere I go. I can't enjoy your product experience whenever and wherever I want if I'm limited by your proprietary desires. Thanks to the Supreme Court, I am no longer shacked by your monopolistic constraints. Emulation has opened a whole new door whereby I can personally take pleasure in your products, and I'm not afraid anymore to assert my rights. The societal gain of fair competition, in this case emulation, outweighs any potential loss that you might try to claim. You want to keep bitching about it? Go right ahead! See if I care. In the meantime, though, I'm going to enjoy your products via my legal right to experience them through emulation. Good luck pressing your case! You're gonna need it.
l will not dispute
the claims of most vendors that they are often the victims of software
piracy. I will not dispute the fact, proven by certain vendors, that
so-called "console copiers," or "cartridge backup devices," or "high-speed
disk duplicators" sold on the market as such are in fact devices that are
frequently used and often implicitly advertised for the express purpose
of copyright infringement. Most of the people who buy such devices
do so with the intent to pirate. Such devices have no legitimate
role in producing noninfringing archival copies, and such has proven itself
in several notable court cases. It is an undisputable fact, however,
that these and other legal devices that share similar design and operation
can be used for entirely legitimate purposes. They can be used by
developers for the express purposes of reverse engineering and program
development, and that is a right protected by law. They can also
be used to make noninfringing personal copies of legitimately obtained
games, so long as these meet the criteria for personal use.
Hopefully, I have explained to one and all what personal use is all about, and all parties concerned now know that it can in no way infringe upon either the rights or marketability of a vendor's product. ROMs made for personal use may be derivative, but they are not infringing.
Anybody who is stupid enough to deal in illegitmate ROMs for any reason is a pirate and deserves to be treated as such. It should be obvious by now, though, that an emufan who follows the rules and generates a ROM for personal use neither breaks any law nor causes irrepairable harm to its original vendor. The U.S. Supreme Court long ago affirmed the principle of personal use as noninfringing (Sony v. Universal), and it works just as well for digital technology as it did for analog devices. The making and usage of a ROM can qualify for the Supreme Court's definition of personal use along the lines I've just finished discussing. This never has been nor never will be infringing, and you can take fact that all the way to the bank.
- Chuck Cochems
Time and again,
average everyday emufans has tried various ways of defending the ROMs that
they want to use with their favorite emulators. All of their arguments
have failed up to this point. While I must admit that I have certain
problems with some of Chuck's assertions, my gut instinct tells me that
he may be on to something here. It is a fact, as he asserts, that
the U.S. Supreme Court has already laid the basic foundations for the theory
of personal use in the now-infamous Betamax case (Sony v. Universal).
It is a fact that the personal use defense has already been applied successfully
in other venues, such as the audio recording industry (RIAA v. Diamond).
Whether or not the courts will recognize its validity with regards to ROMs
remains to be seen.
Let us assume for a moment that a personal use defense does exists for ROMs. If so, then what legal bounds would limit its potential use? Only one, insofar as I can see, but it is one that Chuck did not deal with in depth during his eloquent and impassioned arguments. I have discussed the matter with him, though, and it is one on which both he and I are in complete agreement. Personal use cannot and will never provide justification for nor a viable legal defense against unauthorized distribution of protected works. This fact is an inherent part of its makeup irrespective of the material involved, as the Supreme Court's dissenting opinion in the Betamax case made clear. Justice Blackmun notes,
I am aware of no case in which the reproduction of a copyrighted work for the sole benefit of the user has been held to be fair use.While this was written back in 1983-84, and such cases have indeed appeared for other forms of media, it still holds true today insofar as ROMs are concerned. You see, distribution implies that you are operating in a viable forum for commerce. According to current legal interpretation, a "viable forum for commerce" exists whenever you have two or more parties engaged in some form of transaction. It does not matter who (or what) the parties are, where each may be physically located, what medium of communication they employ to conduct their business, nor the material(s) involved in the transaction. If you have at least two individuals engaged in some kind of business, then a forum exists. The right of distribution for any copyrighted material is exclusive to the copyright owner (17 USC 106), and copyrights are the chief form of legal protection for computer programs such as ROMs. If you engage in a forum, and the subject of your transaction is an unauthorized copy of a protected work, then you are dealing in an infringing derivative work and your right to the personal use defense is automatically voided. Any actions you take in such a forum can only be conceivably defended by fair use, not personal use.
REVIEW QUESTIONS- Sam Pettus
1) What is the single most common complaint by vendors against the production and usage of ROMs?
2) According to your understanding of copyright law, what is a derivative work? What do derivative works have to do with ROMs? Why?
3) Explain in your own words the "code is code" argument and how that applies to the creation of ROMs. How does this apply to disk image ROMs? To binary image ROMs?
4) What does the Digital Revolution have to do with changing the format of a program?
5) Is the right to make derivative works absolute? Be sure to justify your answer.
6) Why do developers have greater freedom to work with ROMs than do users?
7) Explain in your own words the implications of the Betamax case, in which noncommercial use of copyrighted materials qualifies as fair use. How does personal use qualify as a noncommercial use? How does the Betamax case protect personal use regardless of potential infringement?
8) Why is any argument posited by a vendor regarding perceived potential harm of an infringing use of its product without merit?
9) State in your own words the logical proof of the personal use theory. How is this justified under statutory and case law?
10) What single law stands in the way of a user obtaining the materials needed through commercial channels to produce ROMs for personal use? Why was this law put into place?
11) Can the abovementioned law ever be used to prosecute personal use? Why or why not?
12) In what ways does personal use qualify for acceptance under the legal rights of the software user?
13) Can a vendor EULA be used to inhibit or even prohibit personal use? Why or why not? Be sure to justify your answer.
14) Can you state the personal use defense for ROMs? What aspects of ROMs does it cover? Be sure to justify your answer.
15) Why is it that "ROMs made for personal use may be derivative, but they are not infringing?"
16) What potential pitfall would void a user's right to the personal use defense? What are some various ways in which this legal tripwire might be crossed by a user?
THOUGHTS TO PONDER
1) Is it legal for you to download a ROM, provided you own a legitimate copy of the program in question? Why or why not?
2) Is it legal for ROM sites to claim the enabling of personal use in order to justify their existence? Why or why not?
3) Is it legal for a program vendor to deny its purchasers the right to derive a ROM from that product? Why or why not?
4) Is it illegal for you to invite your friends over to enjoy a game that you intend to play under emulation? Why or why not?
4) Is it illegal for a vendor to prohibit the personal use of ROMs? Why or why not?