Did Nintendo download a Mario ROM and sell it back to us?

Re:Did Nintendo download a Mario ROM and sell it back to us? by pjlegato on Friday January 20, 2017 @07:40PM (#13448121)

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

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Re:Did Nintendo download a Mario ROM and sell it back to us? by kbutler on Tuesday January 24, 2017 @10:36AM (#13472143)

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).

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