Does the man disaprove of ROM sites?

February 21, 2006 11:40 AM

I was wondering about the exact legality of distributing video game ROMS on the internet? Is it legal? Does the "delete it in 24 hours" statement really shield a site from legal action? All ROMS sites seem really shady with a lot of layers of pages to go through to get to their content. Some insist it is perfectly fine, while others disagree I searched and only found these two threads. Thanks!
posted by Blandanomics to computers & internet (20 comments total)

[hyperlinked links]
posted by jessamyn at 11:54 AM on February 21, 2006

It's copyright infringement, and no, those statements do not give any kind of "get-out-of-jail-free card". It's kind of funny how all these site owners believe in these weird magical talismans to avoid getting sued. Another one that gives me a chuckle is "if you are employed by any law enforcement agency, you are NOT ALLOWED to enter this site!" Sure, that'll hold up in court, genius.
posted by evariste at 11:55 AM on February 21, 2006

By the way: you are in very little danger if you download them. The big crime is distributing them.
posted by evariste at 11:57 AM on February 21, 2006

Unless the copyright holders have explicitly put it in the public domain, licensed it in a fashion that permits redistribution (e.g. creative commons), or explicitly permitted its distribution, it ain't legal, and won't be until the work passes into the public domain (which takes a long time these days.)

There are several cases with dead companies in which copyright ownership would be difficult to sort out. It's also the case for some of these that one could attempt to claim that the owner had failed to protect the copyright by vigilantly ceasing-and-desisting redistributors, and, thus it had fallen into the public domain -- I think that would take a court ruling, but I'm not sure. Anyone?
posted by Zed_Lopez at 12:00 PM on February 21, 2006

It's illegal. All video game ROMs, without exception[1], are copyrighted works. If you, for example, distribute 1 or more copies of such files with a retail value of more than $1000, you're committing a crime worth one year in jail - 3 years in jail if they're worth more than $2,500. Multiply the retail price for these games times the download numbers and you reach $1000 very very quickly.

Besides the *criminal* violation, distributing these files will also be a *civil* violation - the copyright owner can sue for monetary damages, damages which are, in a word, crippling. This threat doesn't exist if the company has gone out of business and no one has bought the rights to their games at auction, but the criminal threat still does.

The various ROM sites have many layers because they're not distributing the files themselves, but rather they link to files hosted in another country, particularly ones which are unfriendly to American law enforcement. Providing information about where to find copyrighted content is not yet illegal.

[1] Exception: there could be games produced by the U.S. Government (no copyright) or explicitly made available for internet sharing (via GPL or similar license). Even if the company that made the game is defunct, it's still under copyright.
posted by jellicle at 12:10 PM on February 21, 2006

No, you don't lose your copyright if you fail to protect it. (I think something like that applies to trademarks, but I don't know much about trademark law.)
posted by reynaert at 12:11 PM on February 21, 2006

Reynaert's right; I was wrong. Scratch what I said about a "failed to protect it" defense.
posted by Zed_Lopez at 12:16 PM on February 21, 2006

Reynaert is correct: trademarks may enter the public domain if the trademark owner does not diligently enforce its trademark against infringers, but that is not true of copyrights (or patents, for that matter). Copyright and patent owners are free to enforce or not enforce their rights against infringers as they see fit, without giving up any right to go after infringers in the future.
posted by DevilsAdvocate at 12:18 PM on February 21, 2006

Zed_Lopez writes "won't be until the work passes into the public domain (which takes a long time these days.)"

90 years in this case. So your great grand children will be legally able to play those classic Atari / NES games; if they haven't completely disappeared because no-one was allowed to copy them in the intervening time.

Zed_Lopez writes "It's also the case for some of these that one could attempt to claim that the owner had failed to protect the copyright by vigilantly ceasing-and-desisting redistributors, and, thus it had fallen into the public domain"

You could claim that but it's not true, copyrights do not require defence only trademarks.
posted by Mitheral at 12:28 PM on February 21, 2006

jellicle writes "Exception: there could be games produced by the U.S. Government (no copyright)"

America's Army.
posted by Mitheral at 12:31 PM on February 21, 2006

It is illegal, but (IMO) the reason that people keep doing it is that it's one of those only-illegal-if-you-get-caught justifications. Plus the economics are out of whack - the cost of researching & acquiring a legitimate license for redistribution off these ROMs would greatly exceed any revenue you could probably generate. Many of the rights holders for these ROMs are out of business or may not realize that they hold the rights and so are unable to mount legal action.

But all that aside, it's unambiguously illegal.
posted by GuyZero at 1:10 PM on February 21, 2006

Here's the official rules from the United States Copyright Office. These rules were issued in 2003 and to the best of my knowledge have not been changed or overruled. The bit that is relevant to this discussion is:

The four classes of works exempted are:

[snip]

(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

The way I read this, it is perfectly legal to circumvent the DRM of and use video game ROMs in the United States. The disclaimers and warnings may be to comply with European regulations, or just to avoid overzealous prosecutors here in the states.
posted by ilsa at 1:15 PM on February 21, 2006

ilsa, your exemptions likely don't apply. First they are exemptions from the DMCA's anti-circumvention rules, not exemptions from copyright laws. Secondly, because those video game ROMs ARE still made available commercially, witness the large number of Intellivision and Atari game collections sold for Xbox/etc.

Those exemptions are for libraries and researchers, and are very specifically written to only allow them specific exemptions where no other viable academic method exists. Stealing ROMs so you play your childhood favorite is not the same thing, not even close.
posted by nomisxid at 1:34 PM on February 21, 2006

jellicle writes "Exception: there could be games produced by the U.S. Government (no copyright)"

Quandaries.
posted by matkline at 3:44 PM on February 21, 2006

A lot of people confuse the DMCA for copyright law. The DMCA specifies ways in which copyright law, defined elsewhere, is enforced, basicaly, and it provides laws illegalizing the production of circumvention.

It aperas that the law on criminal copyright infringement was recently changed. From the DOJ site:

# by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

Which is odd. Even if they can prove you copied or distributed, its not enough to make you guilty. So what is "willful" infringement. I would imagine it just means if you know you are violating copyright, which you should.

In fact, an "you must delete this in 24 hours" would work to your disadvantage, because it would prove that you knew the stuff was under copyright.
posted by delmoi at 4:56 PM on February 21, 2006

I wish ilsa's comment hadn't been posted, as it just muddies the waters. The Digital Millennium Copyright Act, despite the name, has almost nothing to do with regular copyright law. The question as posted has nothing to do with the DMCA.
posted by jellicle at 5:30 PM on February 21, 2006

Willful, in criminal law, means something like "knew that you were doing the act". Not that you knew it was illegal, but that you knew you were doing the act that happens to be illegal.

So, if a virus took over your computer and started serving copies of Microsoft Office 2006 without your knowledge, you would not be willfully distributing a copyrighted work, etc. etc., and you wouldn't be criminally liable. However, if you intentionally distributed a work, without necessarily knowing that it was illegal to do so, that would still be a willful violation of the law.

Also, just for clarification: America's Army is *probably* under copyright. I don't know for sure, but I would strongly guess that the U.S. Army paid a contractor to develop the game. Their Licensing page isn't informative, but the very existence of such a page suggests the game is copyrighted and thus canNOT be legally distributed by you. Quandaries does look to be freeware, though.
posted by jellicle at 5:39 PM on February 21, 2006

The way I read this, it is perfectly legal to circumvent the DRM of and use video game ROMs in the United States. The disclaimers and warnings may be to comply with European regulations, or just to avoid overzealous prosecutors here in the states.--ilsa

I wish ilsa's comment hadn't been posted, as it just muddies the waters. The Digital Millennium Copyright Act, despite the name, has almost nothing to do with regular copyright law. The question as posted has nothing to do with the DMCA.

Right, basically what you can do is circumvent copyright protection technology, DRM in order to play old games if you own them, and you can't find a console.
posted by delmoi at 6:52 PM on February 21, 2006 [1 favorite]

So I guess this is one issue that is not black and white, can anyone run this by a lawyer friend?
posted by Blandanomics at 8:42 PM on February 21, 2006

FYI, the author of the 1981 Bally Midway game Robby Roto says it's okay to distribute the ROM (28k zip file playable on MAME) as long as you didn't charge for it.
posted by blueberry at 2:55 PM on February 22, 2006