If they actually did what this video is suggesting, it's interesting, but there's nothing actually wrong with it. Yes, Nintendo says that third-party emulation is something they disagree with. But Nintendo isn't a third party. They actually own the system and games in question. If they actually did download a ROM (and I'm not convinced they did, they could have used the same tools and produced an identical ROM), while they say it's illegal for the ROM provider to provide said ROM, it's not illegal for Nintendo to use the ROM since it's their intellectual property.

I generally agree, but then there's the matter of lying about it. Why do that, if they're in the right?

I think the answer is that there are some subtle ways that doing this sends a message they don't want to send. Like, for example, that the illegal emulation community facilitated the existence of Virtual Console. That's a bad message for their point of view, because it legitimizes the idea that ROM sharing serves the archival purpose that some of its proponents claim it serves.

And that's a legitimate point. So what's wrong with what they've done is nuanced, but I think it's definitely there.

Maybe they're not lying.

Or, alternatively, maybe a contractor was responsible for this (even the video suggests this explanation), and simply told Nintendo they didn't download the ROM.

Lying about it makes perfect sense from a reputational perspective. Just because they're right legally, doesn't mean they'll be perceived to be in the right morally by potential customers.

They would profiting from other people's voluntary labour. That fact that labour might have been performed illegally, in violation of Nintendo's intellectual rights, won't detract from that fact for many.

There's nothing legally wrong with it, but it's hypocritical for them to benefit from services provided by hobbyists while at the same time vilifying those hobbyists.

Indeed, the wrong here is from a moral perspective, not legal.

Although, well… a ROM may be a derivative of an illegal copy of Nintendo's original work, but does that prevent copyright nonetheless applying to the derivative? If it doesn't, then there's probably a threshold-of-originality thing applying (the header is tiny and its content obvious), but I do wonder.

I don't see any moral fault in taking a file which has robbed the company of significant yen and then using it to save a bit of yen.

Suppose the person who illegally ripped the ROM also altered it in some way. Does this constitute derivative work, with that person holding partial copyright to the result? Or does the illegal copying preclude such possibility?

If it is complex/original enough to qualify then generally yes, the person modifying also has rights on the result. A typical example would be a translation of a text.

EDIT: apparently this is not true for the US, I briefly checked but apparently missed something, my bad. It is for example in Germany.

No, legal derivative works can only be made with the authorization of the copyright holder[1]. The question was specifically about an unauthorized derivation.

Creating any unauthorized derivative work is illegal and thus ineligible for copyright protection, including the preparation of unauthorized translations (other than under fair use exemptions such as for news reporting, research, or scholarly purposes).[2]

[1] https://www.law.cornell.edu/uscode/text/17/106 [2] http://www.unc.edu/~unclng/copy-corner73.htm

As I understand it, there are two different issues, copyright in the derivative work, and legality of the act of creating the derivative work.

Copyright of a derivative work that itself meets the standard for copyrightability rests with the creator of the derivative, because, under law, any copyrightable work has a copyright that belongs to the creator at the moment it is created.

A derivative created without proper permission is also a violation of the copyright of the original, but that's a separate issue.

Just saw your other comment and edited, apparently I didn't check thoroughly enough for the US (Here in Germany the permission isn't needed in most cases. Without permission you can't do much with your derivative work afterwards of course)

how can people do these kinds of work on a speculative basis then? surely their work is protected by copyright even though if they were to reproduce it, it would be infringing. I am sure it's in their copyright when they try to sell it to the company they've derived it from.

otherwise how could anyone do spec work!

EDIT: I mean unsolicited spec work - the company they're pitching doesn't even know they're pitching them until they send their pitch. Surely their pitch is still protected by copyright, even though as it's unauthorized the person producing it wouldn't have the right to publish their pitch without approval (if it's a derivative of the company's assets)?

In general, no, such an unauthorized copy is not legally a derivative work, and therefore the pirate cannot claim any rights over it -- according to 17 U.S.C. § 106[1], derivative works can only be made by or with the authorization of the owner of the copyright.

Adding substantial new content does qualify it as an derivative work -- but it's still infringing, since any derivative works made without authorization are illegal.

[1] https://www.law.cornell.edu/uscode/text/17/106

You seem to be making an unjustified leap that an unlicensed work is ineligible for copyright protection.

If I create a derivative work, e.g., a Star Trek "fanfic", I may not have rights to publish that work commercially, because of the copyright of creator of the base work.

However, the original copyright holder cannot simply take my work and publish it, because I have rights in my own creation.

This leaves the derived work in an awkward position where it cannot be published commercially without consent of both parties, or until expiration of the copyright on the original work (if that ever happens again).

I wonder what was the license of the original emulator. There might be a violation there as well

I don't think you understand. ROMs aren't emulators. They're just a copy of the game. You need an emulator to run the ROM. Nintendo has an emulator. They didn't steal their emulator. They probably built it in-house, but even if they licensed it (which they probably didn't), that's perfectly legal.

> I don't think you understand.

No, I understand it perfectly

> You need an emulator to run the ROM. Nintendo has an emulator. They didn't steal

They're using an emulator which reads a certain format of ROM file, as demonstrated.

That would not be necessary if they wrote their own emulator

Yes it would. There needs to be some format for the file that the emulator can read. Nintendo could have made up their own brand new format, but why bother when the iNES format already exists and works perfectly well?

Also worth pointing out, the format in question is just a 16-byte header, the rest of the file is data dumped from the cartridge and would be the same regardless of the format involved.

Exactly, I don't see the problem here. It's their intellectual property, they can do whatever they want with it. Just because somebody else dumped it from a cartridge and uploaded it, doesn't mean they own any kind of copyright or anything--Nintendo still does.

There's code in there that Nintendo didn't write and thus doesn't own. The .NES header which tells the machines how to set up the machine state.

Basically, this means Nintendo is selling code it didn't write and has no authorization to resell. Doesn't matter if the game is theirs or not, the specific code added which they are using for virtual console is not their property.

That's a 16 byte header which contains configuration flags describing the hardware of the cartridge and which target should be emulated, that's hardly "code" or copyrightable.

https://wiki.nesdev.com/w/index.php/INES#iNES_file_format

Somebody had to come up with that originally so that everyone else would follow the format.

BTW, your preferred data source is horribly lacking. No mention of NESticle in the popular emulators? No mention that the first NES emulator (where this header comes from/was made for) was a COMMERCIAL emulator?

I think you need to pick a better source for your data.

That somebody had to come up with the format does not mean they have any rights on or over files using that format. Not sure why it would be relevant that iNES is commercial either.

By your argument, the person who created the JPEG format now owns all JPEGs.

No, by my argument, they own the FILE FORMAT. Did Nintendo create the .NES header required for emulators to work with their games? No? Then where is their legal license to commercially use that header data which they did not create?

No, nobody owns the file format. When applicable, file formats are protected by patents, not copyrights, but you can't actually even patent a file format, any relevant patent would be on algorithms used to encode the data that is then used in the file format (and that's not applicable here).

I said NOTHING about the file format being owned. The code inside, the header which EVERY EMULATOR USES, is the unique thing, and can be protected.

By the way, every ROM ripping tool explicitly states "Non-commercial purposes" so Nintendo still violates a specific licensing limitation by using a ROM made using those tools, whether they own the property or not. Any way you try twisting this argument, you're going to lose, hard.

Source: I own patents, have successfully defended my IP in court, and I actually read those little things that nobody else apparently does that LEGALLY puts restrictions upon the software use.

No, the header cannot be protected. File formats cannot themselves be protected at all. What you can do is patent algorithms that are used to produce the data for the format. But there's nothing in the 16-byte iNES header that would qualify for patent protection (and of course the format author didn't seek protection in the first place).

As for ROM ripping tools, you're assuming that Nintendo took someone else's non-commercial ROM ripping tool and used it, instead of dumping the ROM themselves. Besides, where do you even get the info that "every ROM ripping tool" is for Non-commercial purposes? I just searched for a NSES rom dumper and found something called the Kazzo cartridge "INL Retro" NES Dumper-Programmer and there's no sign anywhere on the page or the readme.txt of it being restricted to non-commercial purposes.

> Source: I own patents

Then you should know that you actually have to file for patents in order to have them, which the author of the iNES format didn't do (and couldn't even do, because there's nothing in there that qualifies for patent protection).

> The code inside, the header which EVERY EMULATOR USES, is the unique thing, and can be protected.

In my interpretation the bytes in the file are just a description of facts, and it is highly unlikely that the act of writing down facts about the cartridge in a specific way is enough to create a work on its own that could be protected. Calling them "code" IMHO would be quite misleading, since that would lead to confusion with a program or the executable code in the image. (Larger data sets/ROM collections might be protectable under database copyright laws in jurisdictions where those exist)

Just to be sure: If you mean a software implementation reading/writing said header, that of course could have copyright protection.

> By the way, every ROM ripping tool explicitly states "Non-commercial purposes"

There are open-source (BSD licensed) tools that have no such limitations.

Opps, I did say something about file format being owned but that's not what I meant.

And if nobody can own a file format, please explain Adobe's patent on the PSD or DNG formats themselves (owning the specification = owning the format.)

Quoting Adobe on DNG and patents:

“Essential Claim” means a claim of a patent, whenever and wherever issued, that Adobe has the right to license without payment of royalty or other fee that is unavoidably infringed by implementation of the DNG Specification (from https://helpx.adobe.com/photoshop/digital-negative.html#dng)

The patents are not on the file format, but cover techniques required to implement an application reading it. Similar to how you have to pay to use e.g. MPEG4, since various companies have patented parts of the compression mechanisms. The patents don't cover just MPEG4, but any video format using these mechanisms.

I'm not familiar with that header, but by the sound of it, it sounds like it would be sort of a C struct with info about the ROM, not code. Isn't it possible that, if Nintendo had written the header in the ROM they're selling, it would be exactly the same as any other ROM dump from out there?

No. There's a string to identify the header in the file then a series of bit flags. You wouldn't create an identical header by accident

Nintendo either downloaded the ROM or used pirate tools to make it.

Or they just re-used the format because it already exists and works perfectly well. Don't forget, the "format" in question is just a 16-byte header, it's trivial enough that it would actually be more effort to come up with a brand new format (with absolutely no benefit) than to just re-use the existing 16-byte header definition.

Well, as an analogy.

1 - You are a painter

2 - someone says makes a copy of one of your paintings

3 - That's wrong you say

4 - you take the copy and sign your name at the bottom

5 - you sell the copy to someone else

See the thing is, copyright for something that takes basically zero effort to copy (like digital goods), soon enters in these kind of loopholes.

If Nintendo policy was: "ROM dumping is wrong IF you don't own the original cartridge", well, I could be on Nintendo side.

But Nintendo policy is: "ROM dumping is wrong, period! There will be no discussion about it!" Then, they actually become hypocrites if they use a ROM dumping from a 3rd party.

If someone photocopies your painting, it's indistinguishable from a photocopy that you yourself made. And if you get one of the copies that someone else made, you still own the copyright to the work and it's perfectly fine for you to sell it. You could have made the copy yourself, you just didn't bother because someone else gave you a copy they made.

That's the same thing here. For all we know, Nintendo actually did dump the ROM themselves. The evidence suggesting they downloaded it from the internet is all circumstantial. But even if they didn't, they could have done so, and since they own the copyright to the game, it's perfectly reasonable for them to sell the ROM, however it was actually obtained.

You are conveniently skipping the part of the analogy where you just sign the photocopy and sell it as your painting.

..because it is your painting.

The ROM is their copyright, so this is the same thing as someone at Universal records 'torrenting one of their artist's discographies and selling it on a DVD instead of using their own archives (though this analogy holds true only if Nintendo acquired an originally unauthorized ROM dump made by an unaffiliated third-party and simply repackaged it in the Virtual Console - it could also just be the case that Nintendo made their own ROM dump but used the same tools as the scurvy pirates, that way it would still have the same ROM file header).

I'm far more interested to learn if the Virtual Console itself uses any open-source code to power the emulator - and if it means there's a potential GPL or other copyleft license violation going on - because that would be deliciously ironic for their very strong anti-(unauthorized)-emulation stance - what better endorsement than to have your own open-source emulator repurposed by Nintendo themselves?

It's a little more than the torrenting analogy. The ROM is in a format that was developed by and for emulators that they claim should not exist. They relied on the work put in by emulator creators that they tried to fight into nonexistence.

Your last paragraph is pertinent question. But even if not an infringement, it is surely hypocrisy of the highest order.

How is it hypocritical? Hypocritical would be if Nintendo was caught illegally writing emulators of someone else's software.

All they're doing is cutting their losses, they haven't done anything that conflicts with their stance on emulators.

ROM dump people argue making a ROM is proper software archival, Nintendo disagree with that.

The thing is, if Nintendo needed the ROM for whatever reason because it was an archive, then Nintendo would be wrong in saying ROM is not archival.

They used a format someone else defined. I don't know why you think that's hypocritical. It's not like defining a new file format is especially hard. If the format hadn't already existed, they could have created their own equivalent format. But since it does exist, it seems perfectly reasonable for Nintendo to re-use that format.

The format isn't the hypocrisy. Nintendo has always been very consistently anti-emulation. They always attempt to frame emulators as software that enables "downloading illegally copied software"[1] to be played on "unauthorized hardware"[1].

Of course they never mention the word "emulator" when talking about their "virtual console" games or their GBA "ports" of NES games that simply emulated the original ROM.

[1] https://www.nintendo.com/corp/legal.jsp#emulator

Virtual console and the NES classic are legally copied software played on authorized hardware, so it's not the same thing as what they've vivified. If you stuff illegally copied roms onto your mini NES, they're not really going to be happy either - I don't see how this is hypocritical.

This isn't about legal status. It's Nintendo's well-known bad attitude towards any use of their products that is even slightly outside their intended use.

(Also, copyright is generally civil, not criminal. Copying a copyright protected work shouldn't be described as "illegal" or a crime, but may make you civilly liable for damages.)

>> They always attempt to frame emulators as [...]

For many, many years Nintendo tried to pain emulators as only being used to infringe copyright. They are have been dissembling about emulation (and copyright) for >15 years. "Emulator" is a bad word to Nintendo, far more so than other video game companies.

This is why they called the network downloads on the Wii a "Virtual Console" (it's kind of like the original console, just "virtual"). They claim that the NES Classic "...is a miniaturized version of the groundbreaking NES, originally released in 1985."[1] which implies that they may have something resembling an actual 6502 when it's actually an Allwinner R16 SoC running Linux[2] and a software NES emulator.

[1] http://www.nintendo.com/nes-classic/

[2] http://hackaday.com/2016/11/13/linux-on-your-nes-classic-edi...

You're being overly pedantic. Yes, Nintendo says emulators are used to copyright infringement, but it should be blindingly obvious that they mean third-party emulators. Nintendo owns the actual hardware AND the games in question, so there's nothing at all wrong with them doing their own emulation, because they're obviously not infringing upon their own copyright.

> there's nothing at all wrong with them doing their own emulation

I never claimed otherwise.

> they're obviously not infringing upon their own copyright.

Obviously. Nobody is claiming otherwise.

> You're being overly pedantic.

Perhaps, if you're referring to the straw man you're creating.

I'm talking about their attitude and their attempt to frame "emulation" as "piracy". Just like the movie studios that try to frame bittorrent as only a pirate tool, Nintendo has consistently refused to even acknowledge the existence of non-piracy uses of emulation. Now, many years later, Nintendo is just barely starting to understand that emulators have more uses than what their own rhetoric has claiming.

The conversation in the past has always been about third parties emulating hardware they don't own the copyright to, in order to play software they don't own the copyright to. Nintendo owns both the hardware and software, so even if they're using emulation technologies under the hood rather than actually porting the game to the new hardware, what difference does that make?

See Reddit thread when the article was posted yesterday: https://reddit.com/r/Games/comments/5oxgd3/eurogamer_did_nin...

Consensus is that this is OK since Nintendo technically has copyright still.

The speculation I read in that thread was basically that if ripped properly into the .NES format, you would wind up with identical versions (for that game, and many--but not all--others).

No. NES files as used today contain a few dozen bytes at the start which are used to tell emulators a little bit about the type of hardware that needs to be emulated. This header appears in the ROMs that Nintendo is selling. Nintendo would not have invented precisely the same header as is used by unofficial emulators by chance.

Note that no one is claiming that this is illegal on Nintendo's part.

Nobody's suggesting that they chanced upon the same header. That's ridiculous. The suggestion is that they're using the same tools to rip the ROM, and/or they're just re-using the format because it's a pre-existing format that does the job.

Midway downloaded a ROM of Spy Hunter to get access to the game's sound effects for a pre-smartphone mobile port, and then had the ROM site shut down for copyright infringement.

Happens all the time.

I recall in the N64 emulation days (back when the best that anyone could accomplish was emulate the loading intro sequence), emu writers would get recruited by Nintendo, and then be forced to drop the project due to "conflict of interest".

I'm curious if they were hired for their skills, or just to kill their side-projects.

Probably started far earlier than the N64 days.

The guys that made Starfox got hired based on their ability to circumvent the copy protection on the gameboy [1].

So Nintendo, like many software companies do hire hackers based on things that Nintendo don't condone.

Proud of his team's sneaky subterfuge, San wasted no time getting the results in front of Nintendo's key staff. "I turned up at Nintendo's booth at that year's CES and tried to find the most senior person at Nintendo at that time, which turned out to be Don James," he says. "I walked up to him and showed him our game, and his jaw dropped - both for the demo itself and also the way it defeated their protection. He roped in Wayne Shirk and Tony Harman to see the demo and they were extremely impressed with what we could do, and our enthusiasm. I told them we wanted to work with them and had a talented team in London, and that we were good at 3D games."

[1] http://www.eurogamer.net/articles/2013-07-04-born-slippy-the...

Poacher-turned-gamekeeper is an age-old practice.

I want to know why wouldn't Nintendo put the effort into doing their own ROM dumps?

Why bother? Who knows how much work it might be to get a physical copy of a 20+ year old game and the hardware to dump it.

It also might have been outsourced and the developer just took a lazy shortcut.

I'd hope Nintendo has copy of Super Mario Bros. in their possession.

Since they made the system that read the cartridges in the first place. Modding it to dump ROMs shouldn't be much trouble

Why did the page redirect me to http://www.moddb.com/games/superhot/makeitsuperhot ?!

This reminds me of when I used to do outdoor movie setups for a municipality's parks/culture group. We would obtain the necessary license for public performance of the film, and with that came a loaner DVD, but then I'd feed the projector from a laptop using a torrented Bluray rip for the higher quality. I'd then delete the file without playing it under any other circumstance. Not piracy, amirite?

What about the cases where the film distributors charge $x for the DVD version and $y (where $y > $x) for the BD version? - and you licensed the DVD version but played a BD torrent?

I hate those DVDs with a passion... the password protection is a bit much.

It wasn't so long ago that they still came on VHS, too.

I actually didn't know about the password... we were popping them into a consumer DVD player and they just played. But between fiddling with remotes and the audience seeing the OSD play/pause I just got sick of it and switched over to the laptop... which has no optical drive, but does have a torrent client :)

Ah, might just be certain distributors or studios then. I did a similar movies in the park event many times and we tended to show Disney movies.

I miss wrangling giant inflatable screens sometimes but quickly come to my senses.

[Edit: nevermind, I think I misread]

You've left out the context of that quote to invert what the sentence actually said. Fayzullin's entire statement was:

    "[...] If you see that your .NES file DOES NOT match any
     of the ones found online, it is likely to be their own ROM dump.
     I have cut the ROM content out of the Wii file
     you sent me and it indeed matches the .NES file found online."

> it does not appear that they downloaded a Mario ROM

That is literally the opposite of what Fayzullin said.

The very next sentence in that paragraph goes on to say: " I have cut the ROM content out of the Wii file you sent me and it indeed matches the .NES file found online"

Here's some data that indicates that this "law" is generally not valid:

https://github.com/matslina/matslina.github.com/blob/master/...

https://news.ycombinator.com/item?id=9232419

Uh... of _course_ it's going to match a ROM found online -- because it's the same ROM, from the same cartridge. It'd be weird if it didn't match.

As the article comments, ROMs are not just bit-identical copies of the cart chips, but also contain various header metadata and eccentricities of how they're formatted based on what dumping tool you used, which exact cart, etc, and this one verbatim matches one found online.

Even in the cartridge days, game-devs still worked on patches and improvements for later publishing runs, so there can be many different versions of a cartridge game - and maybe the devs might have had even more recent builds of games that never got published because the publisher ended the run - so it's odd for Nintendo to go for the 'easy' route of repackaging an arbitrary version found online, compared to going through their own archives for something more recent, and presumably, of higher quality.

Sure, Nintendo make several versions of each cartridge. But they've all been dumped and put on the internet. Whichever version Nintendo chooses to release in their new emulator, it'll already have been dumped by someone else years before.