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.
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.
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.
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.
EDIT: apparently this is not true for the US, I briefly checked but apparently missed something, my bad. It is for example in Germany.
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
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.
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)?
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.
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).
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
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.
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.
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.
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.
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).
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.
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.)
“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.
Nintendo either downloaded the ROM or used pirate tools to make it.
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.
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.