Nintendo DSi Comments by Tom Bramwell

It's not a "loophole". The right to make a backup is EXPLICITLY laid down in law. It's not an oversight people can exploit in order to get away with making a backup, it's the specific purpose of that section of the Act.

I genuinely have no idea what point you're trying to make. I'm not sure that you do either. Think it through and get back to us.

We all know what he's trying to say, apart from you who seems unable to get off the horse you've climbed up on and is suffering an attack of Asperger's syndrome as a consequence, for a change.

The point is you've not made a backup of your own game for running on an R4, you're downloading someone else's backup which was publicly distributed.

You might think it's stupid legal hair splitting that of the kind that keeps solicitors and lawyers in their jobs or you might not, but thems the facts.

"The point is you've not made a backup of your own game for running on an R4, you're downloading someone else's backup which was publicly distributed."

Sigh. So what? As I've already said in words that even dolts should be able to understand, copyright infringement is a civil offence with a requirement on the part of the plaintiff to demonstrate actual quantifiable financial loss. If you've already bought the game legally, then the publisher cannot claim you have caused it to suffer financial loss. Therefore there is no prima facie legal case to answer. Simple as that.

If someone gets a letter from Davenport Lyons and replies back saying something similar to what you said, they may drop the matter or if DL fancy their chances they may decide to take them to court. If they do take them to court then there'll be a ruling on the matter, but until that time the law is not clear on this point because it doesn't explicitly spell this scenario out.

If you run the game on another system in an emulator or you use the same game in two DSes (one bought and one on an R4) then there is room for arguing financial loss.

"the law is not clear on this point because it doesn't explicitly spell this scenario out.

If you run the game on another system in an emulator or you use the same game in two DSes (one bought and one on an R4) then there is room for arguing financial loss"

The law is PERFECTLY clear on the requirement for direct financial loss. As the veteran of several successful court cases on copyright infringement, I can tell you that with absolute certainty.

As for using the original and backup in two different places at the same time, you're quite right in that there might be an arguable case for that.

But it isn't what we were talking about. What we were talking about, absolutely explicitly, was a person owning many legitimate DS carts and choosing to use an R4 to more conveniently carry all his games around rather than a pocketful of carts. Nobody mentioned someone else playing his originals while he was doing so.

(And while there is certainly a theoretical case against that, it'd be a nightmare to prosecute successfully - who would be the defendant, for a start? Someone using the borrowed original? No law against that. You, playing your backups at the same time? We're back to proving loss again, and you've paid. We could all agree that the spirit of the law had been broken there, but the mechanics of trying prosecute it as a civil case would be horrible.)

So what would happen if I took my copy of Jeremy Clarkson's new book down the library and photocopied it? Purely as a backup, of course?

Or seeing as how the design of a £20 should be copyrighted, can I make a backup of that legally?

Which brings us back to suing the means of distribution instead of suing for quantifiable financial loss, no?

If you download it via P2P, you also make it available for public distribution at the same time, therefore breaking section 107 2A and 4A of the Copyright, Designs and Patents Act 1988 amended by the EUCD 2003. Case closed.

But who said you downloaded it by P2P? There are countless direct-download DS ROM sites, even if we're assuming that you didn't dump it yourself. (It's also perfectly possible, though rude, to block uploading when using P2P.)

"So what would happen if I took my copy of Jeremy Clarkson's new book down the library and photocopied it? Purely as a backup, of course? "

Well, you'd probably be sectioned for being mental, on several levels. But the Act specifically allows backups of computer games (which legally also includes console games) - it doesn't grant the same rights over other forms of media.

Ah, I found the bit of law you are referring to:

It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use

So, what you are saying is that you are making a backup just so you don't have to pirate the game? Because it seems that you're only allowed to take a backup if it's NECESSARY to have for LEGAL USE.

Now to me, that term is veeeeeeeery important. Say, for example, I go out and buy a game on DVD. But oh noes, I don't have a DVD drive! Looks like someone will have to rip it to CD for me so I can use it. It's necessary to take a backup for legal use, so that I don't have to download the game and a NOCD crack (which is copyright infringement as it bypasses the copy protection of the game).

Or, as another example, I want to play World of Goo. But oh noes! I has no internetz. So, I download it at a friend's house and MAKE A BACKUP, which is NECESSARY so that I can use it LEGALLY.

It also says that the USER CAN MAKE A BACKUP. Not anybody else who has made the backup available for download.

All backups are necessary, since you can't count on the publisher to stay in business, and if you wait until they go bust it's too late.

>Why don't you drop them all a line and see if they agree?

My point being shit-for-brains, is that you keep going on about how "piracy doesnt effect anyone" but if everyone pirated your shitty site and no-one paid you money to visit each month - you'd soon change your tune.

But it wont happen though, as no-one would be arsed to copy something so shit as your webshite.

>All backups are necessary,

A backup in necessary.. copying said backup to your shitty site for your subscribers to download for free isnt necessary.

But who said you downloaded it by P2P? There are countless direct-download DS ROM sites, even if we're assuming that you didn't dump it yourself. (It's also perfectly possible, though rude, to block uploading when using P2P.)

In the hypothetical case that Davenport Lyons and others get to know about it and send you a letter then obviously you downloaded it by P2P. In the case that you downloaded it via a direct download site, then you won't get a letter by Davenport Lyons. The direct download site will.

All backups are necessary, since you can't count on the publisher to stay in business, and if you wait until they go bust it's too late.

Why, do your games or DVDs self-destruct when the publisher goes bust? Mine don't.

You need to look at sections 296ZA to 296ZE of the Copyright Act 1988 (as amended by etc...) which deal with circumventing technical measures used to protect copyright.

So to conclude...

1. Quantifiable financial loss (not having the original, using a backup at the same time as the original, using a backup on an emulator on another system).
2. Downloading via P2P which at the same time makes it available for widespread public distribution.
3. Removing technical measures used to protect copyright.
4. Knowingly circumventing technical measures used to protect copyright.

In addition to the measures used against the people who provide copyrighted work for widespread public distribution (i.e. direct download sites) and those who sell products which remove or circumvent technical measures used to protect copyright (i.e. R4).

So perhaps the only sure legal way to get a backup is via a direct download site, and even then it could be decided that you were knowingly circumventing technical measures. Maybe a few years back (i.e. before the 2003 amendment) your argument might have held water but now it doesn't.

@dan : you're trying to talk common sense to a twat who promotes piracy (and even has pirated games available to download on his site to subscribers).. But yet doesnt get simple ideas that for someone who makes his money out of the games industry, pirating them is a bit hypocritical.

- but then he has a band of loyal "asshole" followers who subscribe to his site (ironically) paying him a monthly fee for his copyrighted work.. So as long as he has those band of loyal followers - he'll always think he's on the "right" side of any argument. Even when everyone else thinks he's a hypocritical dick.

"So to conclude... "

To conclude, the subject under discussion was a person using the R4 to play copies of his legitimately-owned games for convenience. What you've done is come up with an example of something rather different, requiring several totally hypothetical assumptions and a whole bunch of other people, none of whom were mentioned by anyone but you (other P2P users, a website owner, someone using your original at the same time you're using the copy). You may as well say "And if he then used his DS to club someone to death, he'd get done for MURDER as well!!!!".

It is not illegal to make a backup of a videogame - first of all, there is a burden of proof on the publisher to show that you obtained a copy by unlawful means. There is then - crucially - a further burden of proof on them to show a DIRECT, ACTUAL financial loss to them as a result. The only plausible way of doing this is to show beyond reasonable doubt that the copy and original were being used at the same time, even then they would have to show that the second copy would have been paid for, and even then the penalty would be limited to the cost of a second copy.

The chances of success in such a case are very low, the potential rewards almost non-existent, and the risks (both in direct costs and in the chance of setting incredibly dangerous precedents) very high. That's why it'll never happen, however contrived a scenario you strive to create. So again: what's the actual point you're trying to make?

"A backup in necessary.. copying said backup to your shitty site for your subscribers to download for free isnt necessary."

Go away, sonny. Grown-ups are talking.

Such style: if in doubt, ad hominem.

It is not illegal to make a backup of a videogame
Actually, it is. Unless you NEED to make one in order to stay legal.

"Unless you NEED to make one in order to stay legal."

That's not what the law says. If you're just going to make up clauses in the law that don't exist, I don't really see the point of arguing with you.

"Such style: if in doubt, ad hominem."

Your/Dan234's entire fucking premise is ad hominem.

It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use
This bit is the law. Note the bit in bold.

Yes. Now have another go at understanding it.

So why is it necessary to have a backup?

Do you NEED a backup to be able to play it?
Is it YOU MAKING the backup?

If no to either of the above, then sorry but it's not really legal is it...

To conclude, the subject under discussion was a person using the R4 to play copies of his legitimately-owned games for convenience. What you've done is come up with an example of something rather different, requiring several totally hypothetical assumptions and a whole bunch of other people, none of whom were mentioned by anyone but you (other P2P users, a website owner, someone using your original at the same time you're using the copy).

The 1988 Copyright Act has been updated by the 2003 EU Copyright directive which means makes points 2, 3, and 4 that I listed above are reasons which can be used for alleging that the defendant has broken copyright.

It is not illegal to make a backup of a videogame - first of all, there is a burden of proof on the publisher to show that you obtained a copy by unlawful means. There is then - crucially - a further burden of proof on them to show a DIRECT, ACTUAL financial loss to them as a result. The only plausible way of doing this is to show beyond reasonable doubt that the copy and original were being used at the same time, even then they would have to show that the second copy would have been paid for, and even then the penalty would be limited to the cost of a second copy.

All of the points I listed above count as "prejudicially affecting the copyright owner" and/or "infringing copyright". Point 1 is on an equal footing with the rest, it is not a further burden of proof. Proving any one of points 1-4 is enough to demonstrate that the law has been broken.

Your/Dan234's entire fucking premise is ad hominem.

Ah. You sure it wouldn't be you're clinging onto one part of the Copyright Act in order to make your point?

"The 1988 Copyright Act has been updated by the 2003 EU Copyright directive which means makes points 2, 3, and 4 that I listed above are reasons which can be used for alleging that the defendant has broken copyright. "

Yes, I know. I examined the ramifications of the EUCD in print for PC Zone in January 2004. It still makes no difference to the facts. The burden of proof is on the plaintiff to show that the accused obtained their copy in such a way, and that STILL isn't what was being discussed, no matter how much you try to shift the goalposts.

Yet again: what is your actual point, in regard to this specific discussion? What is it that you're actually trying to say?

"Do you NEED a backup to be able to play it? "

Yes, you do. Because the media could become corrupted at any time, and the original publisher may not be willing or able to provide a replacement.

"It is not illegal to make a backup of a videogame - first of all, there is a burden of proof on the publisher to show that you obtained a copy by unlawful means. There is then - crucially - a further burden of proof on them to show a DIRECT, ACTUAL financial loss to them as a result. The only plausible way of doing this is to show beyond reasonable doubt that the copy and original were being used at the same time, even then they would have to show that the second copy would have been paid for, and even then the penalty would be limited to the cost of a second copy."

You're mixing up the act and the proof of the unlawfulness of the act. E.g. it's illegal to kill someone. The fact that the police can't prove that I did it doesn't make it a legal act. For some people, the notion of doing something that is against the law is enough for them to refrain from doing it. For most, the chances of actually getting caught are more important. You could call the first group morally superior for what it's worth...

"You're mixing up the act and the proof of the unlawfulness of the act."

No I'm not. Backing up a game you legitimately own is not a crime. And the chances of you being successfully pursued in court for having a copy of a game you legally own, even if you obtained the copy in a technically illegal way, and even if you openly admitted it, are so close to zero as to be non-existent.

Because the media could become corrupted at any time, and the original publisher may not be willing or able to provide a replacement.

Ah, but you're not buying the software when you buy a DS game. You are buying the cartridge as a whole and having the software licensed to you, which is covered under UK statutory law and as such you are provided with a warranty, same as everything else manufactured. If the "media" corrupts, you are entitled to a replacement for the period the warranty lasts. If the poduct is no longer available, a full refund or item of similar value must be provided.

Seeing as the product is actually the software contained on the cartridge and the cartridge itself, which in turn is an anti-piracy device, by removing the software from the cartridge you are bypassing the anti-piracy measures and hence are actually infringing copyright. And I'm very sorry, but THAT IS ILLEGAL.

"If the poduct is no longer available, a full refund or item of similar value must be provided."

From who? What if the publisher's gone bust?

The original place of purchase.

Come on, if you've done all this legal stuff you must know about warranties?

"The original place of purchase."

LOL.

You're confusing statutory rights for outright purchase of physical items with buying the licence to use a piece of intellectual property.

Tell me, why do you think it is that the law goes out of its way to allow software backups in the first place?

Funnily enough, that's because you are BUYING the cartridge. Hence the cartridge comes under statutory law, and as such if the cartridge becomes faulty it falls under statutory rights when it comes to a replacement.

The software ON the cartridge is licenced and comes under the copyright laws, but unfortunately that cartridge that you paid money to own just happens to be an anti-piracy device. So...... You can't legally remove the software from it.

"Funnily enough, that's because you are BUYING the cartridge. Hence the cartridge comes under statutory law, and as such if the cartridge becomes faulty it falls under statutory rights when it comes to a replacement. "

Oh for fuck's sake don't be such a complete retard. Physical items are protected by a limited warranty, typically a year, though there's also a vague, nebulous and difficult-to-apply rule about reasonable lifespans. Once that's up, you have no protection whatsoever. Buying the rights to IP, on the other hand, gives you the right to enjoy that IP forever. So if your DVD gets scratched five years on, and the publisher's disappeared in the meantime, the shop will piss itself laughing when you go back and demand a new copy or your money back, and they'll be 100% within their rights to do so.

OK. Contradiction of the evening time.

Is the DS cartridge a physical item or not? Yes? Then it's covered by a limited manufacturer warranty. The thing stored on the cartridge is irrelevant. Once that cartridge is fucked, it's fucked. And you can't do anything about it.
I'll put it another way: I've got some rather rare records in storage. Can I legally demand that I be allowed access to the original source recordings for free, even though the bands may no longer be around, seeing as I have rights to the IP? No. Can I make a backup? No. The records are too fragile, and I don't have a record player.

You fail to bring any mention, also, to the fact that Nintendo use cartridges as an ANTI PIRACY MEASURE. TO BYPASS THIS IS COPYRIGHT INFRINGEMENT. I don't care how you try and word it, once the game is OFF the cartridge, IT IS AN ILLEGAL COPY.

If I scratch a DVD, and go demand a new copy, then they WILL laugh at me. As it will be my fault, and as it would be MY fault the disc was scratched, I have no statutory rights.
If, however, I decided to make a backup of that DVD, and assuming it was a film I particularly like such as Be Kind Rewind, or a rather fondly remembered piece of software, I WOULD BE BREAKING THE LAW.
DVDs contain copy protection. Make a backup and OH OH! Copy protection bypassed, you know where I'm going with this...

Yes. Where you're going is a world where section 50(A) of the CDPA doesn't exist. It wasn't removed in 2003. It's still there.

And I still don't know what point any of you are trying to make, and none of you seem able to tell me.

Section 50(A)1 or whatever it is DOES NOT COVER the removal of anti-piracy measures or the modification of proprietary software protected by IP.

Modify or remove the measures in place to prevent piracy and you are, in fact, breaking the law.

Some closing thoughts before I leave for bed:

Which part of the law covers the sale of copyrighted material by someone other than the IP owner? As in, the sale of pirated materials? As in,

Obviously, much of the WoS Subscriber Bonus Content is technically copyrighted material.

And how far do you think I'd get if I took Microsoft to court for denying me my legal right to play a backup of the Xbox 360 games I legally own? Hmm?

I find all those getting on their high horse about the legallity of backing up games very amusing.

I bet everyone of you has broken the speed limit before... And probably several of you still use your mobile phone while driving.

@FooAtari: Its not so much the piracy issue.. it's who's saying it.. It's quite hypocritical that someone who is very "pro" piracy also makes money from copyrighted material about the very products he's pirating.

If you'd said you pirate games.. i'd just think "meh.. i dont agree, but your choice i guess". But for someone like mr campbell - it's totally biting the hand that feeds him.

(trying to think of a good analogy using Speed limits..)

"(trying to think of a good analogy"

Careful, love. You'll break that tiny brain.

"Section 50(A)1 or whatever it is DOES NOT COVER the removal of anti-piracy measures or the modification of proprietary software protected by IP.

Modify or remove the measures in place to prevent piracy and you are, in fact, breaking the law. "

Yes. Fuck me, after three days we've finally got to the point where some of you are at least able to read. The law says you can't break anti-piracy measures. It also says you're entitled to make a backup. Which means that companies who implement anti-piracy measures are breaking the law too, by depriving you of rights enshrined in law. Which gets us nowhere, and certainly not to anywhere where a court is going to find anyone guilty for copying their own property for their own use, or the jails would be full of people who've ripped their own CDs for an MP3 player.

But for the 50th time - WHAT'S YOUR POINT, THOUGH? I do hate repeating myself, but as I've already said in words that even dolts should be able to understand, copyright infringement is a civil offence with a requirement on the part of the plaintiff to demonstrate actual quantifiable financial loss. If you've already bought the game legally, then the publisher cannot claim you have caused it to suffer financial loss. Therefore there is no prima facie legal case to answer.

Stu: are you REALLY a Reverend? Like, ordained and whatnot?

(And - please - stop referring to people you disagree with as 'love'. It's ever so condescending and, frankly, beneath a man of your intellect.)

I bet everyone of you has broken the speed limit before... And probably several of you still use your mobile phone while driving.

Nope. Never. I always get to the speed limit (very quickly) then stay there.

The only exception is on the motorway, where the highway code states that you should travel at the speed of the flow of traffic, so I generally do that. Unless said traffic is a bunch of knobheads travelling close to 100, at which point I think 70mph in the fast lane is quite fast enough.

And mobile phone while driving? Not bloody likely. I knew someone who had a very serious crash cos they answered their phone while driving. I'd never do that, it's just stupid. Not even handsfree.

"(And - please - stop referring to people you disagree with as 'love'. It's ever so condescending and, frankly, beneath a man of your intellect.)"

It's supposed to be condescending. Why should people of my intellect (whatever level of intellect that might be) not be allowed to demonstrate contempt of complete morons like anyone else can?

And to answer your other question, yes I am. There's nothing in any bible I've ever read about not being rude to cretins, or saying "fuck". Feel free to quote me chapter and verse if I'm wrong.

Ah sorry, there's that bit about "respecting thy neighbour". And "love for all men" or whatever the other bit is. Not sure though, I've thought religion was a load of tosh since I was about 12.

Yes, I know. I examined the ramifications of the EUCD in print for PC Zone in January 2004. It still makes no difference to the facts. The burden of proof is on the plaintiff to show that the accused obtained their copy in such a way,

But just a few posts up you said that the plaintiff still had to prove quantifiable financial loss even if they could prove points 2, 3, and 4, now you've just said that they don't. So what's it to be?

Now your article in PC Zone in 2004 might have boiled down to, "Don't worry folks, everything's still the same as it was before despite all these new amendments to the Copyright Act 1988" but then again other people think otherwise. There is an exemption for home copying but that does not mean you can get round "any device intended to prevent or restrict acts that are not authorized by the copyright owner of that computer program and are restricted by copyright" (paragraph 34). The directive/act also say that you cannot offer it for widespread public distribution which is what P2P does (unless you disable uploading as you said but P2P programs don't work very well if you do this because as the name indicates it's peer-to-peer).

and that STILL isn't what was being discussed, no matter how much you try to shift the goalposts.

Obviously it is because yes you have the right to make a backup but if you make a backup using one of these methods and it can be proven that you used one of these methods then that presents a problem for you. I'm not saying it's easy to prove (and this is why the likes of Davenport Lyons stick to nasty letters demanding settlement out of court because it's much cheaper and easier for them too), I'm saying that these are facts. You seem to be unwilling to acknowledge these facts in this discussion.

The law says you can't break anti-piracy measures. It also says you're entitled to make a backup. Which means that companies who implement anti-piracy measures are breaking the law too, by depriving you of rights enshrined in law. Which gets us nowhere, and certainly not to anywhere where a court is going to find anyone guilty for copying their own property for their own use, or the jails would be full of people who've ripped their own CDs for an MP3 player.

CDs don't have anti-piracy measures, they're just a straight audio waveform stored track/sector format with a table of contents. You do not need to "circumvent the technological measures" to copy a CD, mainly because the format does not permit any. Hence the copyright holder is not free to authorise (or prohibit) anything. However a DVD does have "technological measures" (CSS and region blocking) which you have to circumvent in order to create a backup and by creating a backup you're breaking "technological measures" (paragraph 18 of that source above). The same goes for game backups (paragraph 34).

@FooAtari

I find all those getting on their high horse about the legallity of backing up games very amusing.

One thing is arguing over the law, the other thing is arguing that the law is an ass. I quite agree that the law is an ass, but it doesn't change the facts. Stuart is happy to argue the finer points of the law (well, the points which suit him) on here but on other threads simply happy to make do with saying piracy doesn't hurt developers, repeatedly over 3-4 pages of course.

"But just a few posts up you said that the plaintiff still had to prove quantifiable financial loss even if they could prove points 2, 3, and 4, now you've just said that they don't."

I haven't said any such thing. In fact I just repeated, in bold, that they do.