NOTE: Most of everything in here relates specifically to US copyright laws. I'm also not a lawyer. Also, I'm maybe not even a human being.
People love to talk about what is and isn't copyright infringement on the internet. With little research or factual backing, guided mostly by feeling, fingers connected to hands type out a whole lot of bullshit that often makes little practical sense. For more than a decade we've been wading in a cesspool of disinformation concerning some of the most divisive controversies in the gaming industry. And it's a struggle finding any solid facts. The only ones who have really done their research and are telling us what is and isn't copyright infringement are major corporations who have no obligation to tell us the truth and every reason to conflate actions to treason, if they feel like it. And that's a shitty thing.
Pictured: Friendly discourse about copyright infringement.
For a while now I've had my interest piqued on these debates, and I've decided to actually do some research, read some cases, look at some laws, and cobble together a collection of facts as a basis for my non-expert opinions about the biggest possible acts of copyright infringement in gaming and the lies that corporations have been telling us for years. Keep in mind, I may have missed something and many of the topics at hand haven't been proven in the court system, making them gray areas, but it's important for this debate to stop being so one-sided, so let's take an honest look at what copyright infringement is and what copyright infringement isn't.
WHY THE DISINFORMATION WORKS IN PEOPLE'S FAVOR
First off I'd like to mention this (toward the bottom in the link) piece of copyright law about a manager of a video rental store charged with criminal copyright infringement for copying the video tapes in his store as backups. Criminal copyright infringement must be willful and with the understanding that what is being done is prohibited by law and not made in mistake, accident, or good faith. This is important. With all the disinformation (some of it my own, now!) and the unproven nature of many of these topics, we can't rightly know what is and isn't copyright infringement in certain cases, and the law understands this.
Now, the main points.
Pictured: Someone who clearly was never told huffing paint thinner was illegal.
COPYRIGHT INFRINGEMENT IS NOT THEFT
This is a blatant falsehood on all ends. From a legal standpoint copyright infringement isn't theft. You're not stealing anyone's IP. Copyright infringement can become a criminal law in some cases, but we'll get to that in a bit. Most importantly this is a civil case, not criminal. Chances of you getting slapped with a felony over copyright infringement are slim to none. So, no matter what EA or Ubisoft tells you, copyright infringement is not theft, and the people who do it are most often not at all criminals. It's simply untrue.
The legal definition of piracy extends to all forms of infringing storage, duplication, or distribution of copyrighted material--and of course is also about rape and pillage on the high seas. It's cool, the stuff of little boy's dreams and fantasies, but also much like my uncle's fantasies of little boys, is it illegal?
Pictured: My uncle in the broom closet.
For the sake of this section I'm going to limit piracy to downloading through torrent services, since sites like The Pirate Bay have popularized the term pirating in that way, and it's such a generic term that it legally means very little.
Now, downloading infringing material through torrent programs will most often include uploading the same material to other users. This makes you a copier and distributer, which is where legally you may become a criminal. Essentially, the way the law breaks down (halfway down) is that if within a 180 day period, you make at least 10 copies of one or more pieces of material with a total matching a retail value of at least five-thousand dollars, you can be charged with criminal copyright infringement, which is a felony and can land you with some pretty hefty charges.
A loophole used to exist saying that only those infringing on copyrighted material for monetary gain can be charged with criminal copyright infringement, but this has since changed to include those without a monetary motive (this time the top part), as long as it can be proven that they caused substantial monetary harm to the IP holder. This can be difficult to prove, especially with the websites hosting torrents themselves being significantly more worthwhile to bring down, but people who download and upload torrents as a lifestyle are most likely legal copyright criminals.
Which, I don't know, you might think this is cool. You can go out and get some teardrop tattoos and tell everyone how hard you are because you've uploaded the Gilligan's Island porn parody more than ten thousand times.
Pictured: An "All-Star" cast.
Let's start with one solid, legally proven fact here. Emulators are not illegal. No matter how much companies, including Nintendo, might use strong wording to suggest emulators infringe on copyrights, it has been proven in the case of Sony vs. Bleem! that this isn't the case. Bleem!'s software was a program that would allow users to play Sony Playstation disks on their computers and Dreamcasts through emulation, which Sony of course tried to take them to task over. The lynchpin of the argument here being that Bleem! had to copy some of Sony's copywritten code in order to make its emulator. And this is true. The only way that Bleem! could reverse engineer Sony's code to work was to copy chunks of it, but the court ruled that the product Bleem! made was ultimately transformative and that since infringing on the copyrights was the only way to obtain this result, it was necessary and permissible under Fair Use. It was a big win for emulators everywhere, which is why you can download them freely on your phones or computers or wherever, because they're legal as long as they don't contain any copyright infringing material.
Pictured: A legally defensible product.
But what about the ROMS themselves? Do they fall under any sort of Fair Use? The running theme seems to be that if you own a copy of the game, you can download a ROM for archival purposes. According to Nintendo again, this is false, since downloading an illegally obtained ROM from the internet is the same no matter the case. Now, it is legal to make a copy yourself for archival purposes, but it's not legal under DMCA to break encryption to do so, so this becomes a bit of a catch sixty-nine. There is a list of exemptions to this rule that expires and is updated every three years. At a time video games on obsolete hardware was on there but not anymore. A case involving this issue has never appeared in court, but since Bleem! was able to make its emulator after breaching Sony's copyright, and that turned out to be legal, then breaking encryption in order to make your own archival copy could theoretically be legal.
So, then how about downloaded ROMS as a whole? Even in Nintendo's views (which I keep linking to, because it's worth a read in that it's full of misinformation and sounds like an angry child arguing with an imaginary person) and strongly worded rhetoric they avoid saying that personally having an illegally ripped ROM is in itself illegal, and for good reason, because it might very well not be. Since a case involving a person downloading video game ROMS has never gone to court, we'll need to use an analogue here, so everything coming up next is conjecture, but just roll with me. You've made it this far.
Pictured: A panda either rolling or trying to suck its own dick.
Copyright infringing material that one purchases or receives is often known as a counterfeit or bootleg. The common myth about owning copyright infringing material is that it's the same as owning stolen material, but, as stated above, this isn't true, since copyright infringement isn't theft. Once again there isn't much legally to go on as far as possession of bootlegs goes, since the laws focus on those who reproduce and distribute bootlegs, rather than the people who buy them. In fact, only two countries in the world (France and Italy) have laws against purchasing bootlegs, and in the US having bootlegs for personal use is permissible even to the extent of you being able to bring counterfeit goods from other countries with you. If you were in a country where making and selling bootleg Fleshlights was legal, you could buy one of each type and bring them back with you without having them confiscated. If you bring back more than one, however--you wanted to get your dad a nice Valentine's Day present--the duplicate can be confiscated since that gives a reasonable suspicion that you may have intended to sell that counterfeit in the US.
Pictured: The perfect gift for the kids.
If we were to look at ROM downloads as bootlegs, then downloading and keeping them for personal use is legally fine. It's only if you were to, say, sell your PSP full of ROMS on Ebay that you could get in trouble, but keep in mind that the chances of your actions being considered a criminal offense, even in the case of selling that one PSP, would be astronomically low, and most likely the only action taken against you would be your listing getting removed and your account shutdown.
And as far as something like putting ROMS on a USB stick and giving it to friend being illegal, it is worth noting that the levels attached to criminal copyright infringement were doubled just so that cases of isolated instances of willful infringement (once again toward the bottom), such as a kid copying songs to a CD and giving it to friend wouldn't have any validity in a criminal court.
Remember that time the sweat poured down your face as you cobbled together your Summer Jamzzz CD to give to your girlfriend, Sue with the pigtails and weird teeth when you were eleven? Remember all those commercials you saw and the stories you heard of how you would have to pay tens of thousands of dollars for even one downloaded song and everyone was going to jail for piracy that wormed their way into your imagination and made you a paranoid anxious wreck of a human being for the rest of your life? Yeah, lies. All lies.
This is why it's cool to never listen to adults.
Pictured: A kid who clearly knows his shit.
This has been a major topic of late with Nintendo striking down two major fan projects in one go between AM2R and Pokemon Uranium. So, legally speaking where do fan games fall under copyright infringement?
Let's just start by ousting the myth that if the owner of a copyright doesn't strike down every piece of potential infringement, it's possible to lose their copyright. This is untrue (number 5) and has no legal basis. In this day and age, it's almost impossible to lose copyright of an IP. Works don't even need to be copyrighted in order to have a copyright. Copyrights are ironclad these days, and the loss of one can only really happen if it's given up or sold. A copyrighted work only becomes public domain if its creator specifically states that it's in the public domain. Copyrights are not lost. Don't say this. Don't ever make this argument. It's dumb, shrinks your private parts, and makes your parents act like they don't know you. Please, stop doing this.
As far as fan creations in general (more popular being fan fiction) goes, this is a major gray area. There has been no actual legal precedent in the case of whether fan works would be considered copyright infringement or not. There is a law against derivative works being made of an IP that would protect its owner to choose what works made out of his or her own can exist and give that person copyright to all derivative works. This would suggest that if a copyright holder decides not to strike a derivative down, then it's fine and the original copyright holder also owns the rights to the new work, and if they do choose to strike a derivative work down, then the other party has to comply. Others suggest that because of its free nature, and since they're often openly cited as fan works, there is no infringement under Fair Use. Keep in mind that for fan games to be of a criminal nature, a company would have to prove significant losses from the existence of the game, which likely wouldn't happen.
So, why hasn't this gone to court? The simple answer is that when served with a notice to take down the work, a small studio or single individual is bound to shutdown operations, rather than claim Fair Use and fight it in court. And really, since copies of both AM2R and Pokemon Uranium are still widely available across the internet, Nintendo could potentially still sue the creators, if they felt like it, but it's a zero sum game. Both sides will end up uselessly throwing a ton of money away just to have a court either tell the creators that they have to take the fan work down or to say that it can stay up. No money is won, no profits are saved, and since those fan games still get to exist, there's little incentive for the creators to go into insurmountable debt just to fight to control it.
All that's sure is that fan games are not a crime and do not dilute a copyright, but courts base Fair Use decisions on four factors, and the results judges come to can be subjective and unpredictable. The first factor here is the transformation of the work (most often used to defend parodies and quotes in journalism), second is the nature of the copyrighted work (non-fiction and journalism can disseminate as facts to the public, so it's easier to use in fair use, while fictional works are more difficult), third is the amount of the work that's used (less is always better here like a flash of a copyrighted photo in a movie for only a couple frames would be fair use), and fourth is the effect of the use upon the potential market (the key here is whether or not the new work fills the demand for the original). No two fan games are alike on these four counts, so even if some do go to court, there will never be a blanket ruling across fan games as a whole.
Pictured: Our legal system at work.
For instance, I think AM2R would be hard to defend. It does little to transform the work, uses most of its ideas, is based on fiction, and Nintendo could argue that even though the game is free and on PC it would stop some customers from buying their remake on 3DS, and if Nintendo decided at any point to bring Metroid 2 to PC, it would have to compete with AM2R, meaning Nintendo would lose money. But with something like Pokemon Uranium that's not just a remake but a reimagining, there could be an argument for it as a clearly defined fan project freely distributed across a platform Nintendo doesn't sell games on, and if Nintendo wanted to put Pokemon on PC, it's possible Uranium would do nothing to harm the potential market and in fact may energize Pokemon enthusiasts to buy the title. But who knows?
NOTHING IS PERMINENT NOTHING IS PROVEN
This is where I remind you that the law always changes, and what I've put up here is by no means an exhaustive list of every possible situation and every possible court reaction to cases of possible copyright infringement. I'm not a lawyer, not a legal expert. I just like video games and decided to look some shit up. This is also by no means me encouraging you to do anything you might find ethically unsound. Everyone has their own opinions on right and wrong and what's morally acceptable. Often times, though, our moral compasses are guided by laws, and so I do feel it's necessary to add some clarity to these topics to help people better make their own decisions. Conversations about copyright infringement can feel like Catholic masturbation shaming more often than not, and it's important for all of us to have more information regarding the facts about touching our blush zones.
Pictured: A lucky little shit who's going to heaven.
And most importantly, it's about making sure that giant corporations aren't the only ones telling you what your rights are. That's never a good or helpful thing. These companies never need to tell you the truth; they only desire to tell you what's in their best interests, so sometimes we need to educate ourselves by looking things up so that we don't sound like dickheads the next time the topic comes up. So, here you go. No one has to sound like a dickhead, anymore. You're welcome.
Unless you live somewhere other than the USA, and if that's the case, then whatever, man. Look it up.