[JoshTriplett]

> It goes without saying that copying games is illegal. Well, bar a few caveats which seldom apply to people who run emulators.

Obtaining ROMs for games you own may or may not be, depending on your jurisdiction; in any case, it seems entirely ethical to have ROMs for games you own.

Likewise for BIOSes.

[stinkytaco]

I'm just going to play devil's advocate here, just for the sake of discussion, not because I believe it or not, but I think you could argue that obtaining ROMs for games you own is not ethical. The "phase shifting" argument is never one that held much water legally and certainly the industry would argue that if you want to use the content in a different form (i.e. an emulator), that you should pay for that additional right. It is a copy, after all. In the same way that the music industry would argue you can't upgrade all your vinyl records to mp3 without paying again. For example, should I be able to get Photoshop for all available platforms just because I happen to own one copy?

This, of course, brings us into the thorny world of whether copyright even makes sense in the software business. Copying seems to be an essential part of using a computer (copying runtimes into memory, caching web pages to your computer, etc.) so it may be an outmoded way of thinking about protecting IP.

[JoshTriplett]

> In the same way that the music industry would argue you can't upgrade all your vinyl records to mp3 without paying again.

The music industry would love it if you had to pay for music multiple times, but you can nonetheless rip your own CDs. Or vinyl records with the right equipment.

[stinkytaco]

>The music industry would love it if you had to pay for music multiple times, but you can nonetheless rip your own CDs. Or vinyl records with the right equipment.

You can, but it's not legal, at least not in the United States. It's never really been litigated, but a reading of law would seem to say it's not legal. There's no "personal use" or "personal backup" clause in the law. It's a copy, and copying is not OK outside of the "fair use" bounderies outlined in section 117 (there's also some provisions for libraries and archives, but those don't apply to individuals).

Legality is really tangential to the point, however. The question is that for any given work, whether that's a book, piece of music, game, etc, do you "own" that work seperate from the physical media you purchased it on. Can you obtain a ROM, a copy of the book or a copy of the record in question legally in perpetuity because you bought it in one form once?

[JoshTriplett]

Recording a film from TV is copying as well, but that was litigated all the way to the Supreme Court, which ruled that it was legal. See https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Unive.... , AKA "Sony v. Betamax".

That seems like a fairly clear precedent.

Also see Sony v. Connectix for a somewhat related case regarding emulation and BIOSes. In that case, Connectix obtained copies of Sony's BIOS as part of reverse-engineering it (though they didn't distribute BIOS images with their emulator), and that was ruled legal.

That seems like an even clearer precedent, specifically discussing emulation, as well as copying, for commercial purposes even.

Now, it is fairly clear that sites hosting ROMs for download are violating copyright law. Then again, so is the Internet Archive, and I'd bet the majority of people on HN agree with what archive.org does.

> Legality is really tangential to the point, however. The question is that for any given work, whether that's a book, piece of music, game, etc, do you "own" that work seperate from the physical media you purchased it on. Can you obtain a ROM, a copy of the book or a copy of the record in question legally in perpetuity because you bought it in one form once?

Personal opinion, not based on any particular country's copyright law or precedent (though there is some precedent): personal copying without redistribution should always be OK. It's distribution that copyright should cover.

(That's separate from my opinions on how copyright law ought to be changed.)

[stinkytaco]

I don't think Universal v. Betamax applies. It specifically uses the word "time-shifting", meaning that it was meant simply to record a live program and watch it at a later time. Courts have subsequently rejected "phase-shifting" as an argument (see Napster). I do not believe Universal v. Betamax is sufficient precedent to the wholesale copying of your media for "personal use". I maintain that the specific facts we are discussing have never really been litigated and that the landscape has changed drastically since then, enough that courts would seriously reconsider Universal v. Betamax as precedent.

Down to the next point about obtaining a copy, I think there are two relevant points:

1. If you own it are you allowed to copy it?

To this I would personally argue yes. But I can see how copyright holders argue no. You purchase an item, not its contents. (When I think about the limits put on the aftermarket repair and upgrade market by hardware makers and the outrage that causes, I think there's a reverse logic that applies in this situation.)

2. Should you be able to obtain that ROM or copy because you purchased this item? (ethically, not legally)

This is thornier. Should I be able to download an ebook from a pirate site because I bought a copy of the physical book? What about an old nintendo game I bought many years ago? That to me is a more interesting ethical issue. I certainly did not buy a perpetual license for all forms of that work, but it's not like I can go pick up a copy of a game for my Android either. Of course, if I could pick up a commercial copy (Nintendo resells old games for its new platforms), would it still be OK?

But yes, I also have opinions about changing copyright law, or really reverting it to an older time. I do firmly believe copyright is a good tool to encourage the generation of art, knowledge and entertainment, but I believe that a perpetual monopoly on that content for a lifetime and for your children's lifetime (or companies) is counterproductive to that goal.

[walterbell]

> It's distribution that copyright should cover.

Until the TPP takes effect around 2019.

[mukyu]

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. [0]

In fact, the Rio's operation is entirely consistent with the Act's main purpose – the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at 86 (emphasis added). The Act does so through its home taping exemption, see 17 U.S.C. S 1008, which "protects all noncommercial copying by consumers of digital and analog musical recordings, " H.R. Rep. 102-873(I), at 59. The Rio merely makes copies in order to render portable, or "space-shift", those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic non-commercial personal use entirely consistent with the purposes of the Act. [1]

[0] 17 U.S. Code § 1008 Prohibition on certain infringement actions

[1] 180 F.3d 1072. 1078-1079. 51 U.S.P.Q.2d (BNA) 1115 (9th Cir. 1999)

So the law does specifically say that making digital copies of music for non-commercial use is ok and it has been reviewed by the judiciary (to some extent).

There is also 17 U.S. Code § 117 which allows backup copies or computer programs "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".

You can still get yourself in trouble related to the DMCA depending on what you are doing, but all of your assertions are false.

[stinkytaco]

That case specifically stated that the Rio was not covered under the AHRA because the AHRA covered copying to analog media and digital media specifically meant for copying. It implies that "space shifting" is fair use, but it's also pretty clear that fair use is not what's being litigated. That language is interesting, but tangential. Until an actual consumer who is copying their music is sued, we just don't know.

I still maintain that where both Universal v. Sony and RIAA v. Diamond are persuasive, the facts are not enough to bind a future court. Ripping CDs may be fair use, but there's not enough legal precedent to say for sure.

And p. 117 doesn't really apply here because the copy is not for archival purposes, it's for use in an emulator. That is not "archival".

As I said, I'm playing devil's advocate here, I don't necessarily disagree with your argument, but I do firmly feel there is a great deal of legal uncertainty in this area.

[laumars]

ethics != law