The Copyright 64
The Copyright 64.
A reader letter explains just why devices like the Doctor 64 and Wildcard 64 are illegal.
Last week N64.com published an article on the Doctor 64, a copying device officially sold as a "back-up machine" for Nintendo 64 cartridges. Of course, what the device claims to be and what it is actually used for in most cases are two different things and the sellers of the Doctor 64 realize this. A very thin line separates legal from illegal.
We received a letter from Property Attorney Ryan Nelson who helped to shed some light on that line and copyright laws in general.
Below is his letter, which makes for a very interesting read.
First of all, I should make it clear that I am not in favor of products like the Cart Doctor. I believe that products of that nature indirectly drive up the price of N64 games by making it necessary for Nintendo products to subsidize the cost of pursuing pirates and other illegal operators. Like you, I believe the manufacturers of these products know what they are going to be used for when they sell them, and hold them in great contempt for contributing to my increased video game expenditures when I could be foolishly
squandering my money on food and heat.
Having said that, I will tell you that the copying of video games is not per se illegal. The reason I know this for a fact is because I am an intellectual property attorney, and I've actually had some experiences in cases that are analogous. Under current intellectual property law, video games are treated like music CDs and books: when you purchase a CD, a book, or a N64 cart, you acquire certain rights in that product, and included in the bundle of rights you acquire when you pay for it (that's called your "posessory interest") is the right to do almost anything you want with it.
You can set it on fire, you can use it to build a litterbox for your kitty, or you can copy it. The language that Nintendo inserts into their manuals ("Copying of any Nintendo game is illegal and is strictly prohibited by domestic and international copyright law. "Back-up" or "archival" copies are not authorized and are not necessary to protect your software. Violators will be prosecuted.") is full of half-truths and puffery to scare would-be tech heads into thinking twice about copying games.
But -- and this a big but -- the only time copying is legal is when it is done for the purchaser's own personal use. This means that although it's legal for a person to make a copy of Super Mario 64, dub Fleetwood Mac's Greatest Hits or photocopy a Frost poem, it is illegal for a person to sell, lend, or distribute those copy to anyone else without permission, because the right to do those things -- the rights to the code, the actual music, or the text -- are retained by the copyright holder and are not passed on to the purchaser absent an agreement to that effect. While copying music CDs for your own personal use is easy to justify, (who hasn't made a tape with a lot of songs from different albums or copied a CD so they could listen to it in their car?) making copies of games doesn't have such a quick, easy, legal rational. The only answer, other than "I'm really anal retentive and want to make sure I have a backup" is "I'm planning on doing something illegal", which is why Nintendo hates those copiers so much. As a business, Nintendo wants to maintain total control over their products, which is why they spent millions trying (without success) to stop video stores from renting their games and spend millions chasing after pirates in little South American hamlets. Legal loopholes the size of interstates such as this one, which permit the existence of devices such as the game doctor, drive them nuts because the laws of Japan are much, much more restrictive and business friendly.
I will say that you were right about one thing, though: those who rent and copy are breaking the law since they never purchase the game and never are entitled to do with it as they please. Likewise, those who purchase the games and copy them, and then sell or give away the cart itself and retain the copies are also breaking the law because when you transfer your posessory interest by giving away or selling the original you also transfer any right you have to the copies. (whew!) It's all so complicated that the best advice I can give to anyone is that staying away from sticky situations is the best way to stay out of trouble. I just finished representing a guy who was selling copies (he originally claimed to be "renting" the copies) of the Spice Girl's latest offering that he made on a home CD copying device, and to avoid prosecution and possible jail time (this guy was a real winner) we worked out an agreement with the record company where he paid them $17,000, destroyed the machine and turned over a couple thousand copies of bad, bad music. It's idiots like him who keep us in business, and who Nintendo spends millions a year pursuing, often in the same manner that Don Quixote chased windmills.
Contributed by: Ryan Nelson Esq. -- Rylennel@juno.com
