[UnfalseDesign]

Reading over your response, I think we are talking about two different things. You appear to be talking about copyright protection. Remember that when you purchase a game, you don't purchase the copyright. You purchase a license to play a copyrighted game on a particular medium. (That part of the game instruction manual we all skipped past as kids.)

I don't have access to one of those licenses at the moment but if you happen to have one of them from one of the old NES games, I would be very interested in knowing if it has a section that states that the consumer has a right to backup the game onto another medium and play it there.

Again, you seem to be talking about copyright. I'm talking about the legal rights of the consumer when they purchased the license (game) from Nintendo. This is a good discussion, though.

[chc]

Copyright is the only reason the license exists at all. If we ignore copyright, then the license is completely meaningless, because Nintendo has no rights to the work.

The point is that the EULA does not give Nintendo absolute power just because you played the game. They can't, for example, stick "You owe 30 years of indentured servitude to Nintendo" in the back of the Zelda manual and expect to get a bunch of free work out of the deal.

Nintendo have a very aspirational view of how much control they get over people who buy their stuff, and the law may even bear them out in some cases, but you can't take their word as law just because they wrote a license.

[LocalH]

The right to backup stems from copyright, and on theory cannot be denied by copyright holders. DMCA'S anti-circumvention unfortunately limits this - if circumventing "access controls" is part of the path to backing up media, you may only do it 100% yourself (or acquire "illegal" tools made by others to do so), but you may not legally tell others how to do it.

[wyldfire]

> You purchase a license to play a copyrighted game on a particular medium.

The default right is ours, to be permitted to retell stories, replay musical works we've heard, and even reproduce works of art like video games.

We -- from whom the power to govern comes -- cede this freedom for the sake of promoting arts and sciences. But we do so in a limited fashion. See Article I, Section 8, Clause 8:

> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Our representatives scribbled in "but 'limited Times' means a century or two lol" underneath this and called it "Title 17".

As chc states, the copyright gives its holder the ability to grant us licenses. But we could make the case that the limited-monopoly we granted them to begin with has expired or is no longer valid. The copyright holder has concluded that it's not worth their time to continue to offer this work to anyone. So, who then, can curate this work of art that is now an element of our culture? In the mid twentieth-century, if the materials to produce the yellow, green, blue pigments featured in "The Scream" were licensed to painting copiers by Munch's estate, would we be obligated to source those pigments from them? What if his estate no longer sold them?

The point I'm trying to hit upon is that you're drawing a distinction between copyright and the consumer's legal rights. But the copyright is merely the instrument by which our freedoms are limited to those specific terms. If we reject the copyright claim, then the license's terms are moot.