Mnementh said:
The user agreements cannot overwrite the law. In the US you can go by the DCMA (the question is tagged european union, but the answer provides with the DCMA, which is entirely not european): > Copyright law permits you to make one copy of your computer software for the purpose of archiving the software in case it is damaged or lost. In order to make a copy, you must own a valid copy of the software and must destroy or transfer your backup copy if you ever decide to sell, transfer or give away your original valid copy. With other words, you can make a copy if you own the original. The second part refers to Nintendo Switch Online, a subscription service in which you don't get a copy of the game, but a timed access as long as you subscribe. So different situation. In europe you have actual court ruling: > By its judgment delivered today, the Court explains that the principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website. > Where the copyright holder makes available to his customer a copy – tangible or intangible – and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right. Such a transaction involves a transfer of the right of ownership of the copy. Therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy. https://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/cp120094en.pdf Whatever Steam or Nintendo write in their user agreements, the parts that stands in contradiction to the law are simply invalid. |
First off, the text that you're quoting isn't from the DMCA, and that text does not appear on the page they are linking to, so I don't know where they are pulling it from. The page it links to is about embroidery software of all things.
Chrkeller is correct. You are buying a license to use the software, not the software itself. This is actually explained on the embroidery software site that they link to there, but the best case would be Vernor v. Autodesk, Inc. There was also a case with Blizzard and some weird WOW software that plays for you. And, you can just google and you'll find plenty of places. There was also a case where a website was trying to sell used MP3s, and the fact that users had to delete the original didn't matter.
There's really no question that if you buy software and the agreement says it's a license, it's a license. Whether that should or should not be the case, it is. Two parties can generally make whatever agreement they want on the terms of the sale. What you do not own is the copyright, that is the right to make a copy.
With all that being said, it's important to keep in mind that copying something, even when you do not have the copyright or permission from the copyright holder, is generally not illegal in and of itself. Copyright law is about situations where content is somehow being displayed to a third party. So, you don't exactly have a specific right to make a copy for your own personal use, but you don't really need one because it is not explicitly illegal. Just on the level of common sense, if nobody knows about it, a) how would anyone ever know to prosecute you, and b) what damages could they claim? Where you could get in trouble is if you are either using the software without a license, or you are distributing the software to a third party.
So, based on my one semester of internet law, I am not aware of anywhere in the DMCA or anywhere else that specifically gives you the right to make a copy, but copyright law in generally does not impose any penalties until there is some distribution or display to a third party. So, realistically, you can and I don't believe anyone has ever or will ever be sued for a true personal use copy.
But anyway, I find this argument disingenuous. I don't know how it came up this particular time, so I'm not accusing anyone of anything, but when we debate emulation, are we really ever talking about someone backing up games they actually own? Are the people looking into steam deck for emulation really people looking to play their Switch games in higher definition or whatever? I'm sure we can find some people who want to do that (and I've definitely emulated games I own just to avoid busting out old systems), but really when we debate emulation its about people using it to steal games.
