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.