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Nintendo shuts down www.snes9x.com
Alex W. Jackson writes "According to this email by Jerremy Koot of the SNES9x project, www.snes9x.com's server has pulled the plug after receiving an email from Nintendo to the effect that "Emulators are illegal." The email from Nintendo was not made available, but it apparently makes references to this so-called Legal FAQ. Someone with a legal background wanna take a stab at poking some holes in this thing?
"
Here's what's at the botom of the 'legal faq':
How Do I Report Sites that are Offering Illegal Software or Other Illegal Video Game Products?
Please either call and report that information to Nintendo of America Inc. at 1-800-633-3236 or e-mail us at noalegal@noa.nintendo.com.
please note the 1-800-633-3236... Yup, a toll free way to complain, and make your opinion heard. Whee
------------------
Sure, the reason people write emulators could be to figure out how their processors work, or just to see if they can, or just because they're there, or any of a dozen other reasons that have nothing to do with playing pirated games.
But I would hazard to guess that at least 90%, and probably closer to 99%, of the people who download them do so because they want to play pirated games. Take me, for example--I'm not a programmer; I don't even own a Nintendo, much less the necessary hardware to make ROM copies--what else could I do with them?
While I do like emulators, and support having them freely available, I have to be honest and admit that the ground on which I do so is legally, if not morally, shaky. I can definitely understand the company's point of view.
Editor Emeritus and Senior Writer, TeleRead.org
In a way, this is very much the same argument made by the RIAA about mp3 players. The contention that the availability of some mechanism that allows someone to play an mp3 (or a rom game) automatically constitutes an illegal act is based on a flawed assumption.
Since it is legal to make copies of music or games that you already own, and to use those copies if you wish, it is also legal to use whatever mechanism you like to play them.
In a way, you could compare it to having a gun. Target practice, for example, is legal, killing someone is not. To automatically label the gun as illegal completely misses the issue, as it is the one who uses the gun that is responsible.
In exactly the same fashion, if someone uses a game emulator to play a game they already own, they are behaving legally, and if they do not own the game, they are breaking the law. It is therefore the individual breaking the law that is responsible, and not the mechanism that they use to break it.
Nunc Tutus Exitus Computarus.
"An emulator is a software program that is designed to allow game play on a platform that it was not created for."
You may recall that a few years back, Nintendo released a device called the Super Game Boy. This plugged into your SNES and emulated a Gameboy. It was a hardware/software program that is/was designed to allow game play on a platform that it was not created for.
I'm sure many of you are confused over this like I am - is Nintendo really selling an illegal product? I recommend you write to them at noalegal@noa.nintendo.com if you are as confused as I. ;)
In the late 80's Atari made a number of carts under the tengen name. NOA took them to court on the basis that in order to play on their system (the NESat that time) the carts had to validate via some secret code and that code was copyright or patented by Nintendo. The court upheld and Atari was on the slippery slope to hell. Atari is now dead, don't even talk about the arcade machines that belongs to williams. Anyway This upheld the yakuza business model that ALL the japanese game companies work under. You must be an official licensee in order to develop for Nintendo/Sega/Sony. You Pay to be a licensee, the license states they have the right allow or deny you publishing your software based on their approval or disapproval. (This was all held up in OUR courts folks!)
They also get a royalty based on carts/cd produced not on those sold! TI tried a similar route with their home PC but no one would develop for it. Imagine Apple, Dell etc creating a bit of validation code and any software produced having to pay a fee to use the validation and Apple etc. having rufusal rights to any software developed for the platform. (or even worse M$ using the same argument to protect their OS)
This was deemed legal by the courts as they ruled that consoles are not cumputers! This happened when the license for tetris sued nintendo over tetris and lost on the basis that a console is not a computer and nintendo owned the license for consoles. I was there I worked with the guys. This all happened over ten years ago and I don't think that it has been argued since.
I beleive the entire console industry is based on an illegal standard that was held up in court because the court did not understand that consoles are and were computing devices. This has outraged me for many years and I beleive stifled the console software market. Look at the diversity in computer based software compared to console games. Since the console industry detirmines what can be published on their systems we end up with the drivel that they allow. Basically all the games look and play the same, and we all eat it up. Anyway this is thepart of the laws that should be attacked. Anyone with the desire should be allowed to create software for the platform without paying OR approval of the platform creator.
Don't you guys ever try to look at things from the other side?
/.
Emulators ARE providing a way for people to play games without buying the games. Nintendo, even though it is a mega-corp, IS losing revenue.
Now, emulators themselves shouldn't be illegal, because they are just another string of 1's and 0's. However, they are contributing to an amount of piracy.
"Hold on", I hear you saying. "I own the games, in cartridge form. Possessing and running the affiliated ROMs with an emulator shouldn't be illegal". Yup, you're right. In a way, this does infringe on your own personal freedoms. But let's just say that Nintendo wasn't such a big game vendor, but just a programmer somewhere who makes mighty good console games. Does he deserve to be protected? Does his protection exceed your right to run his games? (is this a bad analogy? Does size really make that big a difference? Before you say "yes", think about this: should big companies be attacked more fiercely just because they're big?)
This argument is identical to the MP3 debates...sure, you have a right to do whatever you want on your computer...but there are winners and losers in both battles. Who deserves to win, and who deserves to lose?
I think a there is the largest concentration of above average intelligent people on the internet here on slashdot. But every time I see a "screw the RIAA" or "screw Nintendo" without providing solutions that will appease both parties, I wonder where these people all disappeared to.
Before you flame, note that I'm playing devil's advocate more than defending the bad guys...the issues aren't as clear cut as you guys think it is. I think there's such thing as a possible win-win solution for these issues. If the solution is found, I'm sure it'll have something to do with
<tim><
Yes. All ROMs available on the Internet are unauthorized and infringing copies of copyrighted works
Sure, in practice most ROM's on the internet are going to be downloaded and used illegaly. The problem being, there is NO law in existence today that prevents users from placing backups of any software anywhere. Sure, its a stupid loophole in the law, but Nintendo's trying to stretch things a bit.
Can I Download a ROM from the Internet if I Already Own the Authentic Game?
There is a good deal of misinformation on the Internet regarding the backup/archival copy exception. It is not a "second copy" rule and is often mistakenly cited for the proposition that if you have one lawful copy of a copyrighted work, you are entitled to have a second copy of the copyrighted work even if that second copy is an infringing copy. That is utterly ridiculous and legally unsupported. Therefore, whether you have the authentic game or not, or whether you have possession of the ROM for a limited amount of time (24 hours), it is illegal and infringing of a copyright to download and play a ROM from the Internet.
The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction to the authentic. It is well established by judicial decisions in the United States that this limited exception does not apply to game data contained in ROM semiconductor chips in video game cartridges.
When pray tell was this decision made? Further, I'd be very curious to see anyone prove that a backup of software was made by anyone other than the user!
What is Nintendo's Position on the N64 Emulator, the UltraHLE?
The UltraHLE is illegal. The N64 emulator infringes Nintendo's intellectual property rights, including copyrights, and circumvents Nintendo's anti-piracy security system. I'm afraid this point is just blatantly false, as Sony's case with Connectix and Bleam has shown. As for Nintendo's "anti-piracy" system, this has been called legally suspect by many observers.
Does Nintendo Believe the UltraHLE Violates its Intellectual Property Rights?
Yes
I believe I'm still as in shape as I was in high school. Believing it doesn't make it true.
Does Nintendo Think Emulation Companies Promote Piracy? Why?
Yes. The only purpose of video game emulators are to play illegal copied games from the Internet
What a profound argument. That'll hold up in court.
Are "Game Copying Devices" such as the Dr.V64, Z64 and Others, Illegal?
Yes. Game copiers enable users to illegally copy video game software onto floppy disks, writeable compact disks or the hard drive of a personal computer. They enable the user to make, play and distribute illegal copies of video game software which violates Nintendo's copyrights and trademarks. These devices also allow for the uploading and downloading of ROMs to and from the Internet. Based upon the functions of these devices, they are illegal.
Huh? By that logic, my diskdrive is illegal because I can copy programs and "upload" them to the Internet!
The only thing even remotely on target was the comment about copyright law. Sure ISP's could be held liable if anything could be proven, but Nintendo's going to need a MUCH better argument than this(I suggest they look at the fact that Sony made the exact same arguments and lost twice).
Another AC about to be annhiliated by the TRUTH...
---BEGIN QUOTE---
USC, Title 17 Sec. 117.
Limitations on exclusive rights: Computer
programs
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to
make or authorize the making of another copy or adaptation of
that computer program provided:
(1) that such a new copy or adaptation is created as an
essential step in the utilization of the computer program
in conjunction with a machine and that it is used in no
other manner,
OR
(2) that such new copy or adaptation is for archival
purposes only and that all archival copies are destroyed
in the event that continued possession of the computer
program should cease to be rightful. Any exact copies
prepared in accordance with the provisions of this
section may be leased, sold, or otherwise transferred,
along with the copy from which such copies were
prepared, only as part of the lease, sale, or other
transfer of all rights in the program. Adaptations so
prepared may be transferred only with the authorization
of the copyright owner.
----END QUOTE----
Looks legal to me, and absolutely NO MENTION OF "durable media" so
this dispels heresay that you can backup floppies but not roms or CDs.
Note also, there's NO MENTION OF licensed sw, only the "owner of
a copy of the program". I did not buy the program. I am not the
owner of the program. I am the OWNER OF THE COPY of the program.
I bought a shiny silvery disc. I own the media. I own the copy,
but not what's on it. I CAN make a backup copy and the software
publishers cannot stop me unless we have a signed contract bearing
real signatures between us that prohibits this. Shrinkwrap licenses
are meaningless. If fact, the law specifically allows copying
licensed software since it says that copies must be transferred
to the new owner/licensee or destroyed if the LICENSE is transferred
terminated as well as sold. Only "adaptations" require permission
of the copyright owner, NOT MAKING ARCHIVAL COPIES. And adaptations
are not what we're talking about here.
Neither buisnesses nor the federal government can enforce laws preventing software from being developed or distributed unless it uses code or other software components that were protected under copyright. Like it or not, Nintendo couldn't even prevent another game company from making a nintendo "clone" if it used nothing but unprotected or independently developed resources. This is a competitive marketplace, and Nintendo, like it or not, can't say "You may not develop an emulator for our games", just like they can't say "You may not sell plain-text cheat books about our games" "You may not develop a console that can run our cartidges" or "You may not release games for the nintendo that do not get our seal of approval." If they wish to do that, they can not sell their product in the United States. We have laws and rights that encourage competition, and that is really all snes9x is. Competition. At least Nintendo should take the Microsoft point of view and BUY them out, there's much more honor and legal backing there.
Nintendo, emulators are not illegal. Emulation is not illegal either. Distributing copyrighted material is. If you don't get that straight right now, ya'll will probably regret it later. IP lawyers really love this stuff. Bottom line: Only two types of software is illegal. Pirated software and software that illegaly uses copyrighted code. snes9x was neither of those.
Saying "Emulators are illegal." is like Betty Crocker saying "Cookbooks that we don't make are illegal." You can not kill a product just because it can or may cut into profits, just like Microsoft can't kill Linux for the same reasons.
EmuHQ has this FAQ commented for a while. It's here.
What is Nintendo's Position on the N64 Emulator, the UltraHLE?
The UltraHLE is illegal. The N64 emulator infringes Nintendo's intellectual property rights, including copyrights, and circumvents Nintendo's anti-piracy security system
Does the UltraHLE (or any other emulator) actually include any Nintendo code? If not, it can't violate the copyright.
And Nintendo doesn't have an anti-piracy security system -- because the security system does not prevent illegal copies of the games from being made, or even played on an N64 (if you have the ability to manufacture cartriges). The so-called "anti-piracy security system" just prevents both legal and illegal copies from being executed on non-Nintendo machines.
On the other hand, imagine for a moment that one of the hardware cartridge copiers is adapted slightly to only load the code into your PC's RAM, where it is then executed by an emulator. This does not violate the Nintendo or cartridge copyrights at any point unless I've included actual Nintendo code in the emulator or copy the cartridge other than into RAM for execution, which I havent done. But the Nintendo "anti-piracy system" would prevent legal execution of the game -- unless my emulator circumvents it.
Accordingly, the "anti-piracy system" is not copy protection, so tools to circumvent it do not violate even the new U.S. copyright laws. So Nintendo can stuff it.
1. Since the N legal FAQ was obviously not written by a lawyer, and IANAL, I feel qualified to respond.
2. If someone could point me to a law which says copying devices are illegal to own/build, cable TV descramblers are illegal to own/build, I'd appreciate it. Truthfully, I don't have either, but as far as I know, it is illegal to use those devices to commit illegal acts of copyright infringement, but not illegal to have them. Will M$ start arguing that computers are illegal because they can be used to pirate their stuff? Didn't the motion picture industry try to use the same argument against VCRs?
As I understand the copyright laws, it would be perfectly legal for someone to buy a legit copy of a game, and then use the device to make a copy.
3. Emulators developed without containing the copyrightable elements of a product, are not copyright infringement. Copyrights do not protect from duplicating designs or functionality. Patents do. (If a lawyer had written their FAQ, they would have not tried to use a copyright argument to explain why emulators are illegal. Well, maybe it was a bad lawyer.)
But one thing is true, if it weren't for copyright infringement, there wouldn't be much point in having an emulator. There would be so little to run on it.
Forrest J. Cavalier III, Mib Software Voice 570-992-8824
The Reuse RocKeT Efficient awareness for software reuse: Free WWW site
lists over 6000 of the most popular open source libraries, functions, and applications.
From a corporate view, this seems to make some sense. Corporations wish to protect all of their assets, and the technology of their video games is an asset, but here is what interests me from the reading of this FAQ.
Does Nintendo Think Emulation Companies Promote Piracy? Why?
Yes. The only purpose of video game emulators are to play illegal copied games from the Internet.
This is not true. Most of the time the emulator is started by an author who wishes not nescessairly to play "illegal copied games from the internet" but to figure out how the CPU works. I can speak from experience that if I had source code to a fully working N64 emulator my last CPU I had to design for class would have been easier; we had to implement a MIPS cpu with bonus points for new instructions, I only wish I knew what new instructions to add. Its also interesting because I never remember having to agree to a licensing agreement saying I wouldn't reverse engineer my N64 or any of my games.
Haven't the Copyrights for Old Games Expired?
U.S. copyright laws state that copyrights owned by corporations are valid for 75 years from the date of first publication. Because video games have been around for less than three decades, the copyrights of all video games will not expire for many decades to come.
Nintendo may want to check on this, there was a small caveat made in I believe 1993 for software that DOES deal with its commercial exploitability. I realize that most roms sites think the rule is the holy grail (which it isn't) but it does affect this situation. Unfortunately I don't have a link to it right now.
Can Websites and/or Internet Service Providers (ISPs) be Held Liable for Violation of Intellectual Property Rights if they are Only Providing Links to Illegal Software and/or Other Illegal Devices?
Yes. The websites and/or ISPs for sites which link to ROMs, emulators and/or illegal copying devices can be held liable for copyright and trademark violations, regardless of whether the illegal software and/or devices are on their site or whether they are linking to the sites where the illegal items are found.
Nintendo may want to check on this. A person with a web page can be held responsible. But I don't believe that an ISP can nescessarily be held responsible, after all we still have GeoCitites don't we and lord knows how many roms they house (aside: wouldn't it be fun just to browse their hard drive and see all the fun files?)
it might also be worth some time for people to review the article "anarchism triumphant" by Eben Moglen, as some of its principles can be applied to thinking about this area.
My Slashdot account is old enough to drink...
The problem is that Nintendo, et al considers an old game worthless to them as soon as they can't charge $50 for it in cartridge form. But they still feel the need to enforce their "rights" against piracy, etc.
You can buy SNES and Sega Genesis games at a flea market or a place like FuncoLand for between $1 and $5 a pop, so the games obviously do have some comercial value. Plus people obviously are enjoying the games on the emulator scene.
The easist way for Nintendo to stop 90% of the piracy is to sell ROMS for the old games themselves at $.50 to $1 a pop. Everyone wins: Nintendo gets to make money on their otherwise worthless back catalog and gets essentially free advertising, emulator users can enjoy the games legally, and most ROM Warez sites would probably disappear because their services wouldn't be needed (although if you enjoy piracy, there would be nothing stopping you.)
The only thing that's missing is some sort of Debit system so you wouldn't need to make a credit card transaction for each 50 cent game.
--
Business. Numbers. Money. People. Computer World.
For now here is Jerremy's (owner of snes9x.com) comment on the situation:
'I just wanted to let everybody know what has happend to Snes9X.COM. According to my host they have shutdown the site because it has illegal content, after contacting my host, they have answered that they have taken offline my site because they have gotten an email from nintendo stating that emulators are illegal.
They are not allowing me access to the site, so until a new host is found, the site is offline ! What Nintendo has mailed to my host is unknown. The only thing I know is that Nintendo was referring to the following page: http://www.nintendo.com/corp/faqs/legal.html. Where they clearly state that their policy is that emulators are illegal, and thus Snes9x is illegal. They probably won't sue me directly since I live in The Netherlands and chances are that they would never be able to win the case !
Jerremy Koot'
You know, the one that extends copyright so long you won't ever see a classic become public domain within your great grandchildren's lifetime, the one that makes a thoughtcrime out of possessing software that could make other illegal-to-possess programs. Anything that could be used to reverse engineer precious intellectual property..
The monkey cage goes into a fit screeching at Microsoft for their attempts at lock-in but don't give a second thought to buying proprietary hardware to buy proprietary games. This is vertical lock-in, folks, what are you going to do if one company does create the ultimate console and the others dry up and blow away? Will anyone ever get back into this market when you feed at the trough of the this console maker, who demands that all games made for it be licensed only to it? Maybe not now, maybe not in a couple years... How about 5? How many new Sega titles do you see now?
Don't just boycott Nintendo, boycott consoles.
I've finally had it: until slashdot gets article moderation, I am not coming back.
Xerox Copiers are not illegal.
Copiers are used for the sole purpose of creating an exact copy of another peice of paper.
You can say that Xerox copier encourage piracy of copyrighted material.
However, you can't say that copiers are illegal because of whatever purpose they may be used for. "Possible Intent" has no bearing on the legality of any product......
It's not so open and shut as "emulators are legal, period."
Where did Nintendo say they were illegal? I read the same FAQ you did, and I don't see that anywhere. They did say they believe UltraHLE was illegal, and I remember this was because they said they had reason to believe the authors referred to the N64 software to create their EMU.
You're right, emulators are perfectly legal... but only if they are designed in a clean room, where none of the authors have seen the code for the software they are emulating. Some emulator authors have worked in clean room situations. Did the UltraHLE authors do this? I don't know, but Nintendo does not believe so. Have they proved it in a court of law yet? I don't think so.