Legal to have playable NES roms that cannot be downloaded?

Phunky · Aug 3, 2010

I came across a site called vNES many years ago and they allow people to play old nintendo games on their site. Now in the legal policy it says this:

vNES Copyright Policy

The staff of VirtualNES.com goes to great lengths to ensure the full legality of our services. Although we personally believe, in good faith, that we are fully within all applicable laws, there are some overly-litigious organizations that would say otherwise. In an effort to achieve transparency, we provide the following information to those who have questions about our legal process and bearings.

Summary of vNES Copyright Policy

The vNES program and the VirtualNES.com services act as an emulator of the Nintendo Entertainment System hardware, designed with the specific purpose of allowing fans all around the world to play vintage video games, whilst staying completely within applicable laws. The vNES program is expressly designed to not assist in the download of sensitive files, but rather load them on the fly when needed. The inner workings of this technology only allow these files to be loaded into temporary storage of a computer while playing. When you have stopped playing, the resource can no longer be accessed,
Due to substantial legal pressure, the staff of vNES International has gone to extensive lengths to continue operating within United States law, while still providing a quality product to our users. All of the games on VirtualNES.com that were released within North America, and/or are originally sanctioned products of Nintendo Co. Ltd. (or its subsidiaries), are backups from original cartridge copies stored at the vNES HQ, in accordance with 17 U.S.C. § 108 and 17 U.S.C. § 1201 (a)(1). Products made outside of those limitations are (generally) not known to have a copyright recognized by Title 17 of the United States Code.

Additionally, as made precedent in Sony v. Universal, the creation of complete backup copies made for the purposes of time-shifting is fair use for noncommercial purposes. For all intents and purposes, the definition of "commerce" is "The trading of something of economic value such as goods, information, services, or money between two or more entities." Quite obviously, with regard to the primary service (allowing the play of obsolete video games) no trading is taking place on VirtualNES.com.
VirtualNES.com Legal Sixfold Path
In addition to the argument for fair use above, laws protecting the operation of vNES, and policy regarding the removal of games (under certain circumstances) is defined below.

Section One (Fair Use)

The methods of archival and transfer used in the vNES software can be reasonably argued under the premise of fair use, given the following:
The purpose and character of the use, such as if the works are used for commercial or nonprofit purposes.
Since our inception, vNES has been an advertisement-free public website which does not require subscription.
The nature of the copyrighted work in question.
The game cartridges allowed for play on vNES have been out of the retail market for a minimum of 10 years.
The amount and substantiality of the portion used in relation to the work as a whole.
The entire work is archived and available for use.
The effect of the use upon the potential market for, or value of, the copyrighted work.
The works in question are vastly technologically inferior to similar modern works.

Section Two (17 U.S.C. § 108)

Title 17; United States Copyright Law, Chapter 1 Section 108 (a) allows the use of archives to produce a copy (and subsequently distribute said copy) in the event that it does not result in commercial advantage, that the collection of the archive is open to the public, and that the reproduction of the copyrighted work retains the copyright notice of the holder of the copyrighted work. This right extends to unpublished works, provided that the archive has an original copy of the work in question.

Section Three (17 U.S.C. § 117)

Title 17; United States Copyright Law, Chapter 1 Section 117 allows the owner of a copy of a computer program to make another copy provided that the copy is created as an essential step in the utilization of the computer program, and the copy is for archival purposes only.

Section Four (Sony v. Universal)

As made precedent in Sony v. Universal, the creation of complete backup copies made for the purposes of time-shifting is fair use for noncommercial purposes. For all intents and purposes, the definition of "commerce" is "The trading of something of economic value such as goods, information, services, or money between two or more entities." Quite obviously, with regard to the primary service (allowing the play of obsolete video games) no trading is taking place on VirtualNES.com.
VirtualNES.com is not run as a for-profit operation, it is run as a lending library or museum, a place where games are preserved not only as an entertainment medium, but cultural artifacts.

Section Five (Assertion of Fair Use for Unpublished & Prototype Materials)

Some unpublished games are available on VirtualNES.com, as a historical archive of works. While prototype boards do not necessarily need to be in the possession of vNES International, a removal will be granted if the game is to be (or has been) completed and released for the platform it was designed for, or a reasonable facsimile thereof (such as emulation.) Prototype materials are only used if the published, complete product is already in the possession of vNES International.

Section Six (Assertion of Fair Use for Foreign Unlicensed Games)

Certain games, the bulk of which were released in Asia (but outside Japan), do not have a notice of copyright, identification of rights holders, or ascertaining the validity of such is impossible with due process may be used on VirtualNES.com. This assertion is not extended to games created in the United States or the United Kingdom.
Frivolous Legal Attack Points
It seems that many attorneys are quite crafty. It would seem best to get some pesky details out of the way, before you start going all Edgeworth on us. (At least he doesn't have a whip!)

Circumvention of 10NES

We didn't actually circumvent anything. To put it simply, if the 10NES doesn't exist, there's nothing to circumvent. We simply didn't attempt to emulate the 10NES chip in the first place.
Either way, it is academic. According to the DMCA, the Librarian of Congress has the power to issue exemptions for bypassing anti-circumvention. One of these is "Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. 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." This quite clearly applies to VirtualNES.com.

Violation of Patents Regarding the NES

The original precursor to the NES, the Famicom, which was released by Nintendo Co., Ltd. in Japan in 1983, no longer has any patents that are still valid. That is to say, all of the patents covering the NES have expired.

Third-Party use of vNES Applet

As per the license agreement, we aren't liable for the use of vNES by third parties.
Click to expand...

So they can legally allow people to play nes roms since they are not available for download? I have always wanted to run a site like this, but I do not want to violate copyright law. This site has been around for a long time though so they are obviously getting around it somehow. Any help would be appreciated.

Delboy2424 · Aug 23, 2010

The methods of archival and transfer used in the vNES software can be reasonably argued under the premise of fair use, given the following:
The purpose and character of the use, such as if the works are used for commercial or nonprofit purposes.
Since our inception, vNES has been an advertisement-free public website which does not require subscription.

Question is - who has reasonably argued it?? They seem to put up their argument in what you have posted, but has a Corp challenged it to date - it would appear not.

They are proving they are not for profit a number of times in there and effectively arguing as such they are expemt from copyright laws (apparently) - tread careful with this one is all I would say.

A lot of the above seems assumption on their part and not legally challenged, remember P2P started like this and look what happened to those guys who got caught big!!

Delboy2424 · Aug 23, 2010

as an after thought.....doesnt this quote say it all???

Although we personally believe, in good faith, that we are fully within all applicable laws, there are some overly-litigious organizations that would say otherwise

Phunky · Aug 23, 2010

I talked with an attorney about this and there are simply too many loopholes on both sides for me to feel its worth pursuing. It's a shame because I could bank on it, but I don't feel like dealing with legal issues.

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