Illusion said:
You know, I think that there are ways to protect your IP without going the gestapo route with your fan community, especially folks that aren't making any money off of it and are well under the radar. But whatever, I guess that we can agree to disagree. I really don't think that the N64 would have had a 2D Metroid even though I completely agree with you that the N64 hardware is bested suited for 2.5D style games more than full 3D. The problem is that the games were so bloody expensive back in the 90's and gamers were heavily demanding that practically everything be full 3D akin to Mario 64 to justify the cost. In fact games like Mischief Makers got a lot of hate for looking like an SNES game back in 1997 with the main argument being "I am paying $60 US or more for a game, it had better look next gen." There was just this expectation that everything be full 3D even though, ironically, the N64 games like Ogre Battle 64 and Yoshi Story today have aged so much better visually than even games like Ocarina of Time. 240p really just isn't enough for an enjoyable full 3D experience.
You know what, I regularly take multi-month breaks from this site for my own sanity. A lack of empathy and social skills is a real issue in the gaming community and I see that expressed so much here both the in the way people say stuff as well as what they are saying. I scratch my head why people cheer on a mammoth company suing into oblivion some poor bloke that hosted a ROM site even though almost all of those same people have downloaded ROMs in the past, often from the very site that was taken down. I don't know how people compartmentalize their own past behavior and then rejoice in the misery brought upon others. It just seems so superficial and, frankly, cult-like. |
Because being a big company doesn't mean people can steal your intellectual property. I've yet to hear an explanation or reasoning besides what amounts to "c'mon Nintendo, be cool."
It's not just some poor bloke that started a rom site in his spare time, it's someone who is trying to profit off the hard work of others and is making a pretty large effort to do so. I see no reason why the relative size of the parties should matter. I don't think being a large company should entitle one to more or less protection of the law than a small one. If you're going to say people could use Nintendo's IP however they like, then the same has to be true for indie developers, or really any creator of any IP. Your argument taken to its logical conclusion means no protection for intellectual property.
As for how to compartmentalize my behavior, I've downloaded roms before, and probably will again. If Nintendo wants to sue me for the value of those roms, then they'd be well within their rights. But, I've caused a relatively minor amount of damage, if any, and the rom site has caused way more.
Pemalite said:
The legalities of Roms actually varies from region to region... Pretty sure in the USA you are not allowed to circumvent copy protection mechanisms in order to do a ROM dump... Where-as here it's perfectly legal.
Protecting I.P is absolutely important. |
You are mostly correct oon the first part. The code itself is copyrighted, so distributing it is itself tortious conduct as you do not have a license to distribute it in that manner, even if you could sell the physical game itself. Circumventing DRM is itself also a problem under the DMCA I believe.
It could be argued that the money is from advertisements, but I'm about 100% sure that argument would fail. First off, monetization is not directly relevant. You're not allowed to use other people's IP even if you are not making money. It depends on what exactly your claim is. If your claim is lost revenue, then it's pretty helpful to be able to show that the person infringing made money, but not essential. If you're arging for damage to your IP, then whether or not they made money is generally not relevant.
If we took a simple case where you are literally selling bootleg copies of Metroid Dread, then I could point to how much you made to demonstrate how much money I lost. Similarly, they could say that the money from advertising is money made by exploiting their IP, and therefore shows damages and should be theirs. Arguing it came from the advertisements is not an argument I've seen used in any infringement case where it might make sense (I'm taking Internet Law and Taxation of IP right now). For example, websites using copyrighted images from other websites have not used that defense, even when their only source of revenue is advertising. I think it would be considered frivolous, which could get a lawyer personally in trouble. Courts deal with all kinds of monetization schemes, and the ultimate question is could the money have been made without infringement of Nintendo's IP. Which obviously it could not, so they profited off the infringement.
But, even if you just gave away bootleg copies of Metroid Dread, you're still potentially liable. Nintendo still suffered damages as a result of your infringement, as they presumably could have made at least some of those sales. It would be more difficult to prove the damages, which is why monetization is always a good thing for a company suing for infringement, but it's not necessary.
In the case of roms, they would sue for damage to their IP, even if they were given away. Nintendo sells their old games, and does rereleases to convince people to buy Switch Online. That's a less valuable proposition when the games can be easily downloaded. If you're suing for the damages to the asset itself and not for lost income, then the monetization issue isn't important, except to the extent it may show how much damage there was.
On the other hand, with the Metroid 64 example, it's hard to argue for a payout without monetization. You could argue it generally reduces the demand for Nintendo made Metroid games, but it's not like Nintendo is really going to make a Metroid game with N64 style graphics, or that someone is going to be like "Welp, who needs Metroid Prime 4 now". If there was monetization, then they can make a claim for lost revenue, but even that's a little shaky based on my knowledge. It's not exactly money Nintendo could have made themselves. My gut feeling is that the courts are not going to allow someone to profit off their infringing activity and would therefore consider them damages to Nintendo.
As a disclaimer this is just me working through these theoreticals as I prepare for tests. I am not a licensed attorney and nothing I say should be taken as legal advice. Please don't start selling a fan game and blame me if Nintendo sues you for a gagillion dollars. :)
