copyright interpretation
Legality of creating your own backup copies of video games you own
<p>As far as backup copies of games you legally own are concerned, is there clear stance on what would be considered illegal? Nintendo's <a href="https://www.nintendo.com/corp/legal.jsp#roms" rel="nofollow noreferrer">legal page</a> pertaining to this matter states the following:</p>

<blockquote>
  <p><strong>Can I Download a Nintendo ROM from the Internet if I Already Own the
  Authentic Game?</strong></p>
  
  <p>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.
  <strong>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
  of the authentic. <em>Therefore, whether you have an authentic game or
  not, or whether you have possession of a Nintendo ROM for a limited
  amount of time, i.e. 24 hours, it is illegal to download and play a
  Nintendo ROM from the Internet</em>.</strong></p>
</blockquote>

<p>I don't understand how a logical conclusion to the sentence (in bold), can be the following sentence (in bold and italics).</p>

<p>Does it imply that if you created your own backup copy of a game, in which you did not obtain from someone else on the internet, it is still not illegal?</p>

<p>The italicised sentence follows from the previous one in the sense that 'downloading a second copy from the internet' is not in the same as 'making a copy of what you own' and therefore the former, which is illegal under copyright law, cannot be justified under the 'backup copy' exception. As a matter of logic Nintendo seem to be in the right, though I cannot say whether a judge would actually direct an owner "you must destroy your downloaded copy and (legally) make another copy of the game you own".</p>

<p>They are also correct in saying that "the backup copy exception is a narrow limitation", but I can't imagine there being case law on the point beyond the well-established tenets that an owner is entitled to make and keep a copy of a program he owns legally, in case of accidental or malicious damage: and that this copy may not be used in other ways that would bypass copyright (for example, lending it to a friend so that you can both play the game at the same time). The facts of each case will determine the result.</p>

<h2>Preface</h2>

<p>I would first like to state that I have a profuse interest in video games. I have been a member of <em>the Caves of Narshe</em> forums, which is a Final Fantasy enthusiast's webite focusing on the S.N.E.S. and original Playstation games in the series, <a href="https://www.cavesofnarshe.com/forums/ipb/index.php?showuser=1937" rel="nofollow noreferrer">since 2004</a>, and various claims regarding the legality of video game R.O.M. files and emulation have led me to want to do serious investigation research regarding the subject matter. Some of these included dubious claims regarding allowing copies for backup purposes of the sort that Nintendo is describing. Something along the lines of <em>download only if you own the original game for backup purposes</em>, or <em>all downloads are offered for evaluation purposes only you must delete within 24 hours</em>.</p>

<p>The first time I published my findings was in the Caves of Narshe Thread <em><a href="https://www.cavesofnarshe.com/forums/ipb/index.php?showtopic=9495&amp;st=0&amp;#entry194420" rel="nofollow noreferrer">the Legality of R.O.Ms. in 2011</a></em>, although I had not known about a couple of cases at that time. I also wrote something about it more recently on Academia S.E. in the related question <a href="https://academia.stackexchange.com/questions/121247/using-downloaded-nes-snes-rom-files-for-research-work/121327#121327">Using downloaded N.E.S./S.N.E.S. R.O.M. Files for Research Work</a>*. Unfortunately, this answer will probably not be much better than what I wrote at Academia, but perhaps I can do better.</p>

<h2>Statutory Support</h2>

<p>The only backup provisions in U.S. statutory law are those described in <a href="https://www.law.cornell.edu/uscode/text/17/117" rel="nofollow noreferrer">U.S.C. Title 17 chapter &sect;117</a>. These are the only provisions in Chapter 1, which delimit the scope of copyright. No other statutory provisions exist in <a href="https://www.copyright.gov/title17/92chap1.html" rel="nofollow noreferrer">Chapter 1</a>, which delimits the scope of copyright and lists the "limitations on exclusive rights" so granted. Moreover, there is no evaluation period so mentioned.</p>

<p>The provisions of &sect;117 require an owner to make a copy pursuant to the following provisions in subsection (a):</p>

<blockquote>
  <p><h3>Making of Additional Copy or Adaptation by Owner of Copy.</h3>—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:</p>
  
  <p>(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<br>
  (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.</p>
</blockquote>

<p><br>Subsection a1 allows you to do the <em>bare minimum</em> to actually <em>use</em> the software in your possession, and transferring it over the internet is not an essential step for using it. Subsection a2 allows the creation of a copy only to be used for personal backup purposes.</p>

<p>Neither of these exceptions account for the usage case of distributing &sect;117 copy, which is handled under subsection (b):</p>

<blockquote>
  <h3>Lease, Sale, or Other Transfer of Additional Copy or Adaptation.—</h3>
  
  <p>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.</p>
</blockquote>

<h2>Regarding the Operation of Computers in Case Law</h2>

<p>I would like to draw our attention to a significant series of caselaw known as the Mai Trio, which establishes how computer software may be used according to the 9th Circuit Court of Appeals:</p>

<ul>
<li><p><a href="https://www.law.cornell.edu/copyright/cases/991_F2d_511.htm" rel="nofollow noreferrer">MAI Systems Corp. v. Peak Computer, Inc. 991 F.2d 511 (9th Cir. 1993)</a></p></li>
<li><p><a href="https://caselaw.findlaw.com/us-9th-circuit/1146148.html" rel="nofollow noreferrer">Wall Data, Inc. v. L.A. Cnty. Sheriff’s Dep’t, 447 F.3d 769 (9th Cir. 2006</a></p></li>
<li><p><a href="https://openjurist.org/64/f3d/1330/triad-systems-corporation-v-southeastern-express-company-triad-systems-corporation" rel="nofollow noreferrer">Triad Systems Corporation v. Southeastern Express</a></p></li>
</ul>

<p>Mai vs. Peak held that the the creation intermittent copies for the purposes of operating a computer by repairmen constituted fixed works was not protected under &Sect;117, because too many copies were made, and the repairmen did not own the computers. Congress amended the statute to include a new exception for maintenance, but the precedent still stands when subsection (c) is not considered. Wall Data vs. L.A. County Sheriff's Department held that creating 117 copies for convenience did not constitute an essential step, amongst other things. Triad Systems v. Southeaster Express holds a distinction between licensees and owners found in Mai v. Peak.</p>

<p>Now, the Landmark filesharing cases <a href="https://openjurist.org/239/f3d/1004/am-records-inc-v-napster-inc" rel="nofollow noreferrer">A&amp;M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001)</a> and <a href="https://en.wikisource.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd." rel="nofollow noreferrer">MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)</a> regarded music, television and movies, rather than video games specifically, but both companies levied a space-shifting defense, arguing that users could download content they already owned over the internet as a fair use. The courts found this argument unpersuasive in both cases. M.G.M. v. Grokster in particular was a 0-9 supreme court shutout. </p>

<p>This in conjunction with the statutory requirement to transfer the &sect;107 copy with the original physical medium from which it was derived,  the findings of the Mai Trio lends me to believe that unlicensed but still legal transmision of video game R.O.M. files over the internet is not possible, as Nintendo claims.</p>

<h2>Creating and Using Your own Copies.</h2>

<p>It should be hypothetically possible to create your own copy directly from the original copy according to the statute. However, case law presents us with some difficulties. </p>

<p><a href="https://law.justia.com/cases/federal/district-courts/FSupp/597/5/1437479/" rel="nofollow noreferrer">Atari vs. J.S. &amp; A.</a> and <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=10&amp;ved=2ahUKEwiRmvKx6tfiAhWJjlQKHXCUBgsQFjAJegQIBxAB&amp;url=https%3A%2F%2Fwww.hongkongcaselaw.com%2Fnintendo-of-america-inc-v-bung-enterprises-ltd%2F&amp;usg=AOvVaw2CeDWPR14TPmrzvfxzWeK_" rel="nofollow noreferrer">Nintendo vs. Bung Enterprises</a> establish that video game cartridge copiers are not protected by &sect;117, based on a reading that matches the spirit of the law rather than the letter of it, with rationale that may be held as questionable today due to technological advancements. Modern solid state hard drives and thumb drives resemble the stable solid state of old video game cartridges more than the mechanical hard drives of the olden days. </p>

<p>However, you might be able to argue a U.S.C. Title 17 107 fair use backup claim based on a similar rationale based in <a href="https://cyber.harvard.edu/property00/MP3/rio.html" rel="nofollow noreferrer">R.I.A.A. vs Diamond Multimedia</a>. This case regarded putting music on a digital audio player, but its significance is that it delimits a distinction between a copier and a media reader: A copier is a dedicated device new media embodying the work such as a C.D. or by way of analogy the floppy discs  you would insert into Bung's Game Doctor onto new media, whereas a reader relies on the computer, which is a legal multipurpose device, to do that for it. The cross-applicability of the logic is however, hypothetical.</p>

<p>In principle emulation is legal if you can legally get a copy of  the game to interface with the computer, as determined by <a href="https://en.wikipedia.org/wiki/Sony_Computer_Entertainment,_Inc._v._Connectix_Corp." rel="nofollow noreferrer">Sony v. Connectix</a> and <a href="https://www.law.cornell.edu/copyright/cases/Sony_v_Bleem.htm" rel="nofollow noreferrer">Sony v. Bleem</a>. A difference here however, is that these are optical disc based games that any standard C.D. R.O.M. player can read, so you do not need to own a device of dubious legality in order to make the backup copy.</p>

<p>The D.M.C.A's anticircumvention provisions might pose some problems with that, since irrespective of the general legality circumventing copy protection is illegal, but currently there are some video game related exceptions which may help, described in <a href="https://www.govinfo.gov/content/pkg/FR-2018-10-26/pdf/2018-23241.pdf" rel="nofollow noreferrer">54010 Federal  Register/ Vol.  83,  No.  208 / Friday,  October  26,  2018 / Rules  and  Regulation</a> (lengthy P.D.F.) and summarized on <em><a href="https://www.copyright.gov/1201/2018/faqs.html" rel="nofollow noreferrer">Frequently Asked Questions About the Section 1201 Rulemaking as follows</a>:</em></p>

<blockquote>
  <p>Video games for which outside server support has been discontinued, to allow individual play by gamers and preservation of games by libraries, archives, and museums (as well as necessary jailbreaking of console computer code for preservation uses only), and preservation of discontinued video games that never required server support</p>
</blockquote>

<p>D.M.C.A. anticircumvention measures also only apply to games that are copy protected as described in <a href="https://www.copyright.gov/title17/92chap12.html" rel="nofollow noreferrer">U.S.C. Title 17 &sect;1201;</a></p>

<p><a href="https://www.copyright.gov/title17/92chap1.html" rel="nofollow noreferrer">17 USC 117</a>, the relevant section of the copyright law, provides that:</p>
<blockquote>
<ol start="117">
<li>Limitations on exclusive rights: Computer programs54</li>
</ol>
<p>(a) Making of Additional Copy or Adaptation by Owner of Copy.— 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:</p>
<p>(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</p>
<p>(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.</p>
<p>(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.—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.</p>
</blockquote>
<p>Since this says that the owner of a copy may &quot;make or authorize the making of another copy&quot; it does not require the person who owns the copy to personally make the backup copy. Nor does it specify that the backup copy be made only from the copy owned. so the part of the statement from Nintendo which says:</p>
<blockquote>
<p>Therefore, whether you have an authentic game or not, ... it is illegal to download ... a Nintendo ROM from the Internet.</p>
</blockquote>
<p>seems to be overstating the law. A person who only has only <strong>temporary</strong> possession of a ROW gains no rights under 17 USC 117, and may not download a copy without separate permission, which apparently will not be granted.</p>
<p>Any downloaded backup could certainly be used to create a replacement ROM chip should the original be damaged or lost.</p>
<p>Whether a person may use an emulator to play the game on a PC or other device, instead of the original hardware, is a different question.</p>
