Nintendo Patents Handheld Emulation, Cracks Down

mclove writes "Looks like Nintendo has recently been granted a patent that gives them new leverage in their fight against emulators: Patent 6,672,963 mainly appears to cover emulators like UltraHLE that are custom-tailored for particular games, but they're already using it to suppress a new Game Boy Advance emulator for the Tapwave Zodiac, Firestorm gbaZ, and there's no reason to think they won't start leveraging it against anyone else trying to emulate their systems." The reprinted lawyer's letter from Nintendo also notes: "Whether you have an authentic game or not, it is illegal to copy a Nintendo game from a cartridge or to download and play a Nintendo ROM from the Internet."

Umm?

'The reprinted lawyer's letter from Nintendo also notes: "Whether you have an authentic game or not, it is illegal to copy a Nintendo game from a cartridge or to download and play a Nintendo ROM from the Internet." '

aren't consumers allowed to make backup copies of their electronic media?

Fuck them

You *are* allowed to make backups and fair-use copies. Wailing lawyers don't change this fact.

Re:Fuck them

Unless the media is protected by encryption or similar copy protection of any kind. The american DMCA prevents circumvention of copy protection, even if you have a legitimate right to make copies, you have no right to bypass copy protection.

ROMs are protected

By a locking chip, which prevented duplicates from being used in the system. However, they didn't have anything to prevent copying at the time. Also, hardware encryption is very easy. They could have done DES (or even AES if it had been invented by then) in hardware with almost no cost.

Re:Fuck them

What they used to do is put custom DSP chips in the ROM cartridges, which was possibly not meant to stop piracy, but that seemed to be a side-effect. It basically forced the emulator makers to emulate the on ROM DSP. I think that was the problem for a while with certain Capcom games in MAME, although don't quote me on that.

Re:Fuck them

The Capcom games you are thinking about are CPS2 games and they were protected by an encrpytion that was very hard to crack. It still hasn't been cracked. They just use custom written programs to dump the data as its decrypted.

Re:Fuck them

Most cartridges since the Famicom/NES have had country lock-out chips (kind of like DVD regions) but aside from a few notable examples there wasn't any kind of copy protection- there wasn't much need as cartridge counterfeiting is pretty difficult when there are custom chips like the SuperFX in them.

IIRC Street Fighter Alpha and Star Ocean both did employ encryption but I those were the only ones.

With the widespread availability of flash cartridges for the GBA I'm surprised Nintendo hasn't started throwing its weight around sooner. It's a shame for emulation fans like myself though,

I can understand why they'd go after the Tapwave Zodiac too, it can currently emulate NES games perfectly and SNES emulation is starting to make good progress, who wants to pay $30 for a GBA port of a SNES game when you can download the original for free and play it on the Zodiac?

I'm sure the fact that Nintendo is now selling expensive collector editions of its old NES games for the GBA in Japan has nothing to do with this.... It's been huge a success so I suspect they are now looking at re-releasing other classics and are making sure emulation isn't going to spoil business.

Re:Fuck them

Actually, if you've ever read the crap that comes with the carts, and this has always been so since I first read them, they explicitly say you're not allowed to copy them for fair use, because they will repair or replace for a reasonable price.

Fortunately, that still doesn't prevent fair use copying from being legal. They can put whatever disclaimers and statements they want to in the packaging and at the end of all of the legal statements it still states that it is all subject to local laws and restrictions.

Re:Fuck them

Unless the media is protected by encryption or similar copy protection of any kind. The american DMCA prevents circumvention of copy protection, even if you have a legitimate right to make copies, you have no right to bypass copy protection.

As previously reported here on slashdot, there were a few exemptions granted for the DMCA, one of which was to allow backing up of cartridge based games/software.

Re:Fuck them

You *are* allowed to make backups and fair-use copies. Wailing lawyers don't change this fact.

Yes, but you can only use a backup copy for restoration purposes, otherwise it's not a backup copy anymore.

And, if you're defeating an encryption scheme to try to use your "backup copy" in an emulator, now you've really got yourself on the wrong side of the DMCA.

At least Nintendo's sending a polite letter warning that this project is dangerously close if not over the line into foul territory before this project gets into trouble. They should at least talk to lawyers before going any further with their plans.

Re:Fuck them

You *are* allowed to make backups and fair-use copies. Wailing lawyers don't change this fact.

Yes, but you can only use a backup copy for restoration purposes, otherwise it's not a backup copy anymore.

Yes, but "fair use" is not limited by backup copies only. The parent poster used the "and" in the sentence, and IMO, correctly so. I can make 2 or 3 copies of the game, but which one I use to play is irrelevant because, I imagine, such copying should fall under fair use.

IANAL, so depending on the law that applies to making digital copies of software, you can even loan them to your friend or brother or whoever. As long as you don't engage in wider/larger scale and/or for-profit distribution, it may well fall under fair use.

Remember that most commercial software comes with an EULA which they contend is a legal agreement between you and distributor/licensor. The EULA may limit your rights further; however, whether these agreements are valid or not is irrelevant in this case. First, Nintendo games don't come with anything that can even remotely resemble an enforceable agreement. Second, I don't think anyone, including Nintendo, will contend or in any way require, that a minor playing a GBA game should legally enter into an EULA-type agreement. Therefore, IMO, regular copyright restrictions with all "fair-use" rights intact should apply to their products.

Re:Fuck them

Yes, but you can only use a backup copy for restoration purposes, otherwise it's not a backup copy anymore.

If you make a backup copy, and your original cart gets destroyed, where are you supposed to play your backed up copy?. Where are you supposed to restore it to?

Unless Ninetndo makes it possible to restore and play your backed up game, you will have to use a third party device to play the game you payed for.

Re:Fuck them

Wrong.

Fair Use allows you _one_ copy

Show me where in copyright law [copyright.gov] it says that.

Note that clause 2 of paragraph 117 refers to the archival copies in the plural sense.

I have done a great deal of research on the topic of Fair Use

It doesn't really sound like it.

Re:Fsck them

A very good point, and one that people sometimes forget. I love it when stores post signs saying "we're not responsible for blah blah". They can SAY that, but just saying it does not make it true.

So, as you said, making backups of your own ROMs only become illegal when Nintendo wins a court case against someone. What they say about the matter only tells you whether they would file suit or not in the first place.

However, I would caution you against ranting about your fair-use "rights" as though it's part of the Constitution. Fair use rights are entirely at the court's interpretation of what is "fair" or not. What you think is fair may not jive with the court's interpretation.

Two relevant links:
http://www.eff.org/IP/eff_fair_use_faq.html [eff.org]
http://fairuse.stanford.edu/ [stanford.edu]

I'm not arguing that downloading ROMs of cartridges you own isn't fair use, only cautioning against making "fair use rights" arguments - because the default opinion of the court is going to be for the copyright holder, unless you can make an extremely good argument. In this case, I think you could, though.

-Erwos

Re:Fsck them

Or we could just forget what's legal and simply do what's fair.

It was fair, though not legal, for Rosa Parks to sit in the front of the bus.

It was fair, though not legal in many states, for gay people ot have intimate relationships.

It's fair, though possibly not legal, for me to play my legaly purchased games from any media I choose on any platform I choose.

When we start doing what is legal instead of what is fair then we lose our most basic right and one that's not even in the constitution; our right to do no more or less than we would have done to ourselves. When we do what's fair then we might lose in the short term, but everyone wins in the long run.

TW

Re:Fsck them

It was fair, though not legal, for Rosa Parks to sit in the front of the bus.

But was it fair? Not to the people who thought that she was stealing their space (though now I'm sure they feel differently, and as a society we have definately changed our perception of fairness in this case).

Were the purges in Russian fair? Depends what side you were on.

Does Nintendo think its fair that you can't emulate their games? Damn straight. Do you think it's fair? Hell no.

'Fairness' is not a useful way of determining right or wrong (or correctness, if you don't like the terminology).

Re:Fsck them

'Fairness' is not a useful way of determining right or wrong (or correctness, if you don't like the terminology).

Well, if by "fairness" you mean the "sniff test", I agree.

However, it is possible to try to create a definition of fairness that can be used to create criteria of the rightness and wrongness of actions. Jowhn Rawls" [geocities.com] constructed one such theory, which is at its heart very simple. One way of explaining it is to imagine that we are about to sit down to play a game, and have to agree in advance on the rules governing each player's role. The rules are fair if we would agree to it not knowing in advance which role we are going to be assigned.

This is actually a lot like the Jewish concept of tsedaqah, which is usually translated as "rigtheousness" but could also be construed to mean "objective". Objective in this sense: you should remove the overwhelming effect of your subjective stake in the outcome of an action from deciing on whether it is right or wrong. For example you should assist the poor because their condition objectively requires assistance and it won't really hurt you that much to help.

Of course taking this approach means that you then get to argue about whose definition of "fair" is correct. However it's an intrinsically more honest process, because you have to accept the consequences of your definition, whereas the sniff test doesn't put any constraints on you.

Re:Fuck them

Wow.

One, in the absence of a EULA, you do own the copy of the software. So the alleged licensor has to prove that a license existed. Even if there is a purported license, it still might not be operative due to the UCC.

Two, 117 only applies to owned copies of software, not licensed copies.

Re:Fuck them

The meduim on which you purchase software is yours, just as the little five-inch diameter piece of plastic holding the latest [insert crappy band name here] album is yours

I agree, though again EULAs could be put forth to attack that position.

but that doesn't grant you any ownership interest in the software on that medium.

This is totally incorrect. You're failing to distinguish between a work as a whole, and a copy as a fixed medium embodying an individual instance of a work.

OBVIOUSLY the owner of a copy has rights pertaining to that copy. You are making the absurd argument that just because you buy a book doesn't mean you have the right to read the story printed in it. You're turning the limited nature of copyrights on its head as well; rights not exclusively granted to the copyright holder either don't exist or follow ordinary property law. Use is not an exclusive right, and thus follows ownership of the material object, just as with any material object.

Why would the UCC render a purported license inoperative? We've looked a fair amount at UCITA and UETA in my e-commerce class with respect to software licensing and it would seem to me that, at least UETA and ESIGN, having effect in most U.S. jurisdictions, emphasize that a license is not invalid merely because it is electronic. Maybe I don't understand your point.

I never mentioned electronic contracts, nor UETA, ESIGN, etc. UCITA is generally worth ignoring as it only exists in two jurisdictions, and several other states have anti-UCITA laws to keep them out.

The issue is this: when you buy something where, after the sale, further terms are proposed, are they binding?

If we treat UCC 2-204 to be controlling, then they probably are (though there must be an opportunity to reject and return per 2-606). OTOH, if we treat 2-207 as being controlling, then there is no obligation by nonmerchant purchasers to accept the additional terms; the original terms stand.

Personally, I'm on the 2-207 side, but this is by no means a resolved issue, and there've been court cases going all different ways on the subject. Plus of course, the UCC is in no small part concerned with protecting customers, and EULAs are nothing other than hostile towards customers. Frankly, I think they ought to be banned as a matter of contract law, as well as in copyright law.

Also, 117 does allow for copies to be "leased, sold, or otherwise transferred" which leads me to believe it would apply to copies of a software program that were licensed (the physical copy that is).

Wow. You didn't even finish reading the entire subsection.

That part of 117 says that if you have made additional copies, they have to follow the original if you no longer posess it. You can't sell an original copy and keep a backup.

I have no clue where you're reading in what you're talking about.

117 also only allows such extra copies to be made "as an essential step in the utilization of the computer program in conjunction with a machine and ... in no other manner"

Those are adaptation copies, not backup copies. 117 allows two different kinds of copies.

Plus of course, it just says "in conjunction with a machine." It doesn't specify. If Congress wanted to specify, they know how to do so. The proper judicial interpretation of this would be that the machine can be any kind of machine. Congress didn't care, and if that's wrong, can trivially correct it. But given how readily things change in the computer world, it's quite likely that they meant just that.

For example, your needlessly narrow reading would prohibit people from getting a computer that postdates the software. That's absurd -- it would mean I couldn't run a copy of Visicalc for the Apple II on the IIgs for no other reason than that the hardware would be newer than the software.

It would also prevent somewhat unavoidable emulation, such as the 68LC040 emulator on Power Macs.

Not Adobe v. Softman

Uhh... It is Softman v. Adobe [cryptome.org], and the order is important because the plaintiff is always first.

Re:Fuck them

Every manual for a Nintendo game specifically states that you cannot back it up. What exactly overrides that?

The fact that Nintendo is not the government, and Nintendo manuals are not law books.

Re:Fuck them

IANAL, but as I understand it:

Unless you have a contractual relationship with Nintendo that forbids it, you may excercise all the rights granted in 17 U.S. Code 117 with any copy of a work of software you have. That explicitly includes the right to make a copy of, and adapt if necessary, your copy of a work of software if it is an integral step in running it on a machine. What kind of machine is not limited by the US Code, and you don't have a contract with Nintendo limiting that right, which means you have a right to get a ROM reader, copy the game on to your PC, and play it on your PC.

And simply printing the line in the manual does not make it an enforcable contract. For a contractual relationship to exist, there must be evidence of voluntary consent to the terms and consideration granted in exchange for the terms. (Exception; Maryland and Virginia law recongizes shrink-wrap licenses.)

Nintendo can't even show evidence you ever read the no-copy requirements, much less consented to them, and they can show nothing you recieved on the condition of agreeing to it (since you had full rights by default from point of purchase).

(Click-through licenses meet the criteria at least more closely, since you must state you agree. The "consideration" is murkier, but there is at least one case on-point that declares click-throughs an enforcable contract.)

Now, if your copy on your PC is not a copy of the cartridge you own, but someone else's, you're at least arguably violating the law. But you are, under US law, allowed to make your own copy if you have to do it to run the program on a machine of your choice.

Re:Fuck them

well, that won't take long. The EU has just passed a bill allowing the recording industry to raid houses without approval from the court or the police.

Where oh where does that lead us.

It's not so much SNES emmulation

ROMs have been a real problem with the GBA. A number of games have had ROMs released before the game itself (both Metroid games, for instance, and I think Pokemon as well).

Emmulating games which are out of print is fine, but games which are still shipping in mass quantities?

Prior art

There has got to be prior art for handheld emmulators. I've ran NES emmulators on my desktop for years now. You can't tell me this hasn't been done before on a handheld. What about the Super Mario Bros. game that I had on my TI-85?

Re:Prior art

SMB on the TI-85 was more of a port than an emulation. However, TI-85 games on the TI-86 were partially emulated. Or Sega Master System chips in the Game Gear (which may or may not have been real, just came to mind). Or how about every emulator that has ever run on a Palm?

Re:Prior art

(Disclaimer: Yes, nhaines as in [e-mail])

SMB for the TI-85 wasn't a port, it was just someone writing a game that looked like the original. It didn't even play like any of the games. It was impressive, though.

Also, TI-85 emulation on the TI-86 was more along the lines of providing ZShell and Usgard ROM call functions, and not so much actual emulation. This is why TI-85 games were limited to 16k or so when you'd run them in YAS: because the TI-86 provided more memory and two configurable memory pages, if I remember correctly, and YAS never did anything fancy other than handling TI-85 assembler shell routines.

Re:Prior art

That's not what the patent claims. The patent is for a handheld emulator that can dynamically chose which platform to emulate based on the input file it was asked to load.

The workaround is to forget about coding that part and just have the user select which platform needs to be emulated.

Re:Prior art

That's not what the patent claims. The patent is for a handheld emulator that can dynamically chose which platform to emulate based on the input file it was asked to load. The workaround is to forget about coding that part and just have the user select which platform needs to be emulated.

I can see it now:

LOADING MY_SNES_GAME.ROM....
LOADED...

Please select which emulator to run this ROM on:

1. PS1 (not!)
2. GameBoy (I don't think so)
[H1][BLINK]3. SNES[/BLINK][/H1]
4. Amiga (No way)

Please press a number between 1-4 (which isn't 1, 2 or 4): _

I thought.. ?

I thought patents were only granted for new technology? Handheld emulation has been around for years. How can Nintendo suddenly own it?

Re:I thought.. ?

You're new here, aren't you?

Own a pencil?

Things like this are disturbing. It's become acceptable, in today's society, for a company to tell it's customers how they can and can't use their products. It's like a pencil manufacturer selling you a pencil, then saying you can only write on the paper they make. Doesn't make much sense to me, but what would I know.

Re:Own a pencil?

I'd like to see them stop me from wiping my ass with Rad Racer!!! *blows in cartridge first...*

Re:Own a pencil?

"Things like this are disturbing. It's become acceptable, in today's society, for a company to tell it's customers how they can and can't use their products."

That's not what's happening here. They're telling a company (or team?) trying to sell the product for a profit not to do that. It doesn't help that their site [crimsonfire.com] for it touts "1400 GBA games, 1200 GBC games, 600 GB games"

Not saying I'm siding with Nintendo on this one, but the fact that they're expecting to make a profit ilegally off of Nintendo isn't helping their case any. You'll notice other free emulators are out there and not under legal scrutiny. (Note: That's not to say they won't down the road.)

Frankly, this is a road they should not have tried to travel. Who can seriously look at that system with that emulator and not expect Nintendo to go apeshit over it? Derrrr.

Only for handhelds?

Given the repeated mention of an LCD display, does this patent only affect laptops and handhelds?

Re:Only for handhelds?

"Virtual LCD" means that the emulator emulates an LCD and all its interactions with the emulated CPU, specifically the Hblank and Vblank states and the current scanline number. But still, any Game Boy emulator first published on the Internet before November 28, 2000, is prior art that a reasonably-funded defendant could use to invalidate most or all of this patent.

Nintendo, you fools!

I find it strange and somewhat stupid that Nintendo hasn't tapped into this market... they should be teaming up with the people making emulators, rather than trying to stop the community from doing what they love. It's not like they're going to get any money from the Nintendo/SNES/Etc. at this point anyway. I can understand their frustration with a GBA emulator, but the others... just think of the possibilities, Nintendo!! Surely Nintendo couldn't hurt itself by teaming up with the creators of ZSNES and releasing a commercial version (rather like Linux commercial releases) that includes a bunch of games and some extra features (PDF guides for the games, maybe some touch-ups to the emulator, etc.). Plus, people would get a warm fuzzy feeling for knowing that they'd be collaborating with both Nintendo and emulator creators.

Re:Nintendo, you fools!

Maybe there's a hidden market here...

Release an official emulator for the hardware as a freeware product. Also, release a hardware product that allows the proprietary cartrige to feed games to the emulator over USB. Allow the user to save serial-number tied copies to their hard disk and sell blank cartriges on which lost or destroied games can be restored, even if they're only playable on one specific unit after that's been done.

Then, open up your SDK so that people can make their own game images and release them however they want. They may just end up discovering some new game creation talent this way. Afterall, having better games available can help sell a weaker platform over a stronger one.

If you help the hacker community color between the lines, you'll have less of a threat in the areas where you do have to clamp down, such as the copying and distribution copyright-protected games.

Make it easier to do things the right way, and most (but not quite all) will do it that way instead of a wrong way.

Fair use

C'mon - you know how in the back of the instruction manual they tell you it's illegal to make any kind of backup of your cartridge because it's unnecessary, and then cover their bets telling you they're not infringing on your statutory rights?

Software is software is software, and you are allowed to back up your software in case the original gets damaged. Period. Most of my old NES carts are unusable because they're so old. So is it unnecessary for me to backup the cart because Nintendo is going to buy me a new cart, or because I'm allowed to download a ROM and play it on an emulator?

(Yes, carts do deteriorate - it's called bit rot. Look into it before you flame.)

Re:Fair use

Perhaps you should look up the definition of bit rot [catb.org] yourself, especially the part about it being "quite rare."

So, is Sony in violation?

The PS2 contains a PS1 emulator...does that mean the PS2 is in violation of Nintendo's patent?

Programmer, get thee to a lawyer!

These guys seem to have stepped into legal hot water in several places.

- Emulating a video game platform is okay, but the patent Nintendo is claiming is against a program emulates multiple handheld videogame consoles based on analysing its input file to declare what format it has been given and therefore which console it needs to emulate. Now, there's likely was that a multi-platform emulator can step around this limitation, like requiring the user to declare which emulation mode is to be used, but this is definitely something the write of such a program should have a lawyer look over before they release their product.

- Emulating a video game platform is okay, but if there are no legal non-cartrige games available for that platform, there's a problem. The Atari emulator community has managed to not just reverse engineer the platform, but have also reverse engineered development tools for that platform so there are some legal freeware Atari 2600 games in circulation. I don't think there are any freeware Game Boy Advance games in circulation yet.

- You can legally copy your cartriges to your computer (if you can) to make a backup copy that could later be used to restore a lost or damaged cartrige, but you can't legally do anything else with your backup copy and still hide behind the backup fair use shield.

- The moral justifiation that you can download from the internet what you legally have another copy of is not a legal one. Maybe it should be, but under today's laws it isn't so that's not a defense to hide behind.

In short, this seems like a tool that encurages piracy and cannot seem to come up with a "substation non-infringing functionality" yet. It should be held tight to the developer until somebody can come up with one... maybe a lawyer can help find one.

Re:Programmer, get thee to a lawyer!

I don't think there are any freeware Game Boy Advance games in circulation yet.
Think again [zophar.net].

Re:Programmer, get thee to a lawyer!

Freeware GBA games do exist. GBA is in fact becoming a rather popular hobbyist platform - there is a free compiler and lots of documentation out there. All you have to do is get a flash ROM, which are cheap and pretty easy to find - you simply upload your games using a USB adaptor into the GBA itself. gbadev.org [gbadev.org] has links to tutorials, places to get flash roms, and links to freeware games that people have created.

Their view

The reprinted lawyer's letter from Nintendo also notes: "Whether you have an authentic game or not, it is illegal to copy a Nintendo game from a cartridge or to download and play a Nintendo ROM from the Internet."

Basically Nintendo is saying "Now pay us again, you consumer piece of shit."
Apparantly they liked DirectTV's business model (i.e. extortion via letters from lawyers). One has to wonder if this is a first step in something greater.

Debatable

"Whether you have an authentic game or not, it is illegal to copy a Nintendo game from a cartridge or to download and play a Nintendo ROM from the Internet."

This seems very debatable to me. Has anyone ever been procescuted for downloading something they own?

It's not illegal to make a tape that I can listen to in my car off a CD, so why would copying info from a cartidge be any different?

Is the cartidge form factor enough of a copy protection mechanism that they think it falls under the DMCA?

Re:Debatable

Well, somebody has been gone after for allowing somebody who has proof of ownership of a CD copy song to download a digital copy of that song... That was the lawsuit that brought down the original MP3.com site and turned the joint over to the recording industry's hands.

Does it Matter, really?

Pirated game roms are just as common as emulators, and are basically illegal. "Archival purposes only" is a complete joke with digital content.

Still, selling an emulator is asking for trouble. What are you making money off of? You are selling a software representation of the system vs. the hardware system. Which is cheaper? - So you are competition for the hardware platform. It doesn't matter if the emulator is legal or not, the company will take you to court over it and you will be a small world of hurt (even if you win). As a business, a paid-for emulator is encroaching upon the turf of the emulated machine and whoever owns it. Naturally, this turf will be protected in the interest of the company and shareholders.

Isn't it true most every business to do with a console has to pay royalties to the console's maker (company who controls the platform)? So the company is going to go after you if you are trying to make money off their platform without royalties.

Not out of the ordinary for NOA

Nintendo has traditionally been quite thorough in going after piracy and this crack down on emulation is nothing new. Their first breakthrough was discovering a multi-million dollar game piracy ring linked to the Taiwanese government during the NES heyday. Ever since, they have made piracy defense one of their top priorities. Through litigation, hardware design, and choice of media (cartridges vs. CDs with the N64) Nintendo reclaims all lost revenue it can.

I'm not saying this is a bad thing, it seems pretty reasonable for them to secure their market. Normally I would be aghast that Nintendo is threatening a form of emulation, something I hold dear. But they have a legal basis with this patent, so this is more than just strongarming from a big company (*cough* Sony vs. Bleem *cough*).

There were however some market tactics from Nintendo which I disapprove of such as inventory control. Back then NOA had so much clout, retailers that carried unlicensed Tengen games got a letter: "drop Tengen games or we pull our NES shipments". No license meant no royalty and no NOA quality-control to stop a crapflood of third-party games that destroyed the Atari VCS years before. At least it's good that Nintendo took Tengen to court and took care of matters legally in the end.

A valid arguement against fair use?

What a polite and well written way to say (paraphrased) "we'll sue your ass." Perhaps if the RIAA were only half as elequent the world would be a nicer place. Mabye it was the unexpected simplicity of the legal doubletalk, but the letter from Nintendo seems to raise some valid points:

The very limited archival copy exception to copyright laws is set forth in 17 U.S.C. 117(a)(2), which specifies that the owner of a computer program can make a copy "for archival purposes only." Even if it were otherwise permitted, which it is not, playing a copy of a Nintendo game on the Zodiac system is not "archiving".

While generally I am amoung the first to annunciate my right to fair use, you have to admit that in this case there is a very legitamate and valid difference between media such as a cd and media on which a game is stored, and as such Nintendo makes a strong arguement. While one could do some waving of the hands and talk about hardware upgrades or software cd/dvd players, the plain and simple case in point here is that Nintendo software is meant to be extremely platform dependant. To reiterate this concept, to this day such software is distributed on a piece of plastic that would seem to have broken off a commadore 64.

I dont know...I enjoy emulation but generally (due to hardware limitations more then choice) get my kicks from the plethora of original nintendo, super nintendo, original gameboy, atari, playstation, and arcade emulators available. In retrospect there seems something fair-er about playing such games on under emulation, as many of these systems are no longer produced, and as such the emulator itself becomes - conceptually atleast - an archival copy.

Re:A valid arguement against fair use?

No, Nintendo's always been like this when it comes to the rights of the legitimate cart owner. Remember that shit in the back of manuals basically saying that the mere act of copying the game is illegal, no matter WHAT you did with it, oh but 'this may not apply where you live' or some shit along those lines.

Nintendo KNOWS that emulation, in and of itself, is 100% LEGAL. They also know that in and of itself, dumping ROMs is also 100% LEGAL. The only thing that is illegal, is unauthorized distribution of copyrighted material that one does not have license to distribute. If the copyright owner says yes, Nintendo has no say (of course, this only applies to third party games). If you code the ROM yourself, Nintendo has ABSOLUTELY no say.

They know how far they're overreaching. They just want to scare as many people as they can into thinking that they're right.

Nintendo makes great fucking games, but their lawyers are some of the worst bottomfeeders I've ever seen (outside of SCO, anyway).

Much wailing and gnashing of teeth...

This is already causing quite a stir on one of the more prominant Zodiac message boards [emuboards.com].

A few relevant issues: Since the recent DMCA exemptions [copyright.gov] created by the Library of Congress, Nintendo's claim that "You're not allowed to play roms you own," is only valid for the GBA, since the Gameboy and Gameboy Color are both legally considered obsolete.

At any rate, the patent only refers to emulators running on "limited capability devices" (Cell Phones, PDAs, and embedded entertainment centers), not to emulators running on desktop PCs. Further, it only covers the Gameboy family of systems: NES, SNES, Virtual Boy, N64, Game Cube and DS are not protected at all.

As for prior art, the patent was applied for in 2000, but wasn't granted until Jan. 6 2004, but the patent acknowledges prior art in its own phrasing:

"A number of GAME BOY.RTM. emulators have been written for a variety of different platforms ranging from personal digital assistants to personal computers. However, further improvements are possible and desirable."

Even more interesting is its mention of Aaron Giles' MAME patent.

One thing that really makes me scratch my head: I've known of people getting patents in a matter of months. Was this one constantly rejected over the course of those 4 years or something?

Typical Slashdot replies

Oh the typical slashdot replies. How terrible it is that Nintendo are taking away people's rights? Well I personally don't see it that way. Imagine for a second that I started up a company that made Gameboys, compatible 100% with the Nintendo Gameboy. Essentially I'd be profiting of the design of the Gameboy without paying any money to Nintendo. This would be wrong. Right?

How is an emulator any different? If a company produces a GBA emulator for a Palm Pilot, even ignoring the fact that guaranteed the majority of it's users would be pirating the games for it (yes - they would, admit it), it's essentially a unlicensed gameboy compatible device.

This patent covers Nintendo against this happening, and is as such a very valid use of a patent, i.e. to protect their business interests from being ripped off by third parties.

Oh and no, I don't expect to be modded up BTW, being as I'm not towing the Slashdot party line of "oh my god, what about fair use?".

Re:Typical Slashdot replies

Imagine for a second that I started up a company that made Gameboys, compatible 100% with the Nintendo Gameboy. Essentially I'd be profiting of the design of the Gameboy without paying any money to Nintendo. This would be wrong. Right?

(I know you're just trolling, but you got modded up somehow.)

You mean like how companies like Compaq made PC's that were 100% compatible with IBM's in the 80's?

As long as you are not violating any copyrights by using Nintendo software, and are not deceiving people into thinking it is a Nintendo product, why shouldn't you be able to make a device that plays Gameboy games? What law says I can't?

I'm not even going to bother addressing your other points.

Re:Typical Slashdot replies

Imagine for a second that I started up a company that made Gameboys, compatible 100% with the Nintendo Gameboy.

Something similar was already done in the 80s - several manufacturers made systems or add-ons for their own that were 100% compatible with the Atari 2600.

Atari took at least one of them to court, but it was ruled to be legal.

It wouldn't make much sense to do this now anyway, because there is no profit made on the systems - just the games, which Nintendo still collects the license fees for.

The strategy behind this

One of the strongly debated issues about emulators is that they are used to play "abandonware" or software that the copyright holder is assumed will never release again.

Well, that used to be fairly reasonable in the 90's when the arcade and console videogame market were in this huge transition towards fully immersive 3D games; nobody thought there would be a future for 2D, and then many old games were automatically assumed to be abandoned forever.

But, the Gameboy Advance changed all that, we are getting re-releases, remakes and rehashes of great, old games because the GBA is not a "3D powerhouse" and it doesn't need to be. I'm actually happy those games are released again, and so are millions of gamers. Just look at how the insane success of the Famicom Mini games in Japan makes the GBA sell even better than the PS2 [the-magicbox.com]

This is what an emulator really endangers, it makes it more difficult to market an old game, and in fact the argument about "emulators saving good games from the past" is very much reversed as Nintendo can't sell a game to a market that got it for free. And Nintendo of course is trying to (rightfully) protect their IP, it may not be the right way to do it, but what other choices do they have?

OK, I see one alternative. I'm not saying it's good or bad to emulate games, but Nintendo and others should contact the emulators' developers and discuss in good faith about the reality of which games are never going to be released and allow them to be legally distributed and emulated. Of course, this is something very unlikely, but still possible in light of iTunes' success as an alternative distribution model.

Thing is, Nintendo is still a corporation and most of the time it makes decisions that are not popular with gamers, but sometimes you can get good remakes from these decisions. Pac-Man Vs., Super Mario Advance 4 (SMB3) anyone? Nintendo simply doesn't want anyone to compete with their own, official, legal emulators.

I think that for a game to really become abandonware in these new times, it now needs to be abandoned by both the copyright holder AND the consumer, since it is already proven an old game can sell like new. That leaves a lot less room for the emulation scene.

Re-releases of NES games on the GBA

Recently in Japan, Nintendo have been re-releasing some of their old 8-bit NES games on the GBA. So you can buy the original Super Mario Bros. on the GBA now, as well as many other old school NES games legally.

This patent no doubt ties in with the fact that Nintendo want to fleece their back-catalogue.

I wonder if they borrowed a certain GBA NES emulator to get the effect though?

GBA reissues

It shouldn't surprise anyone that Nintendo has been making quite a hefty sum of money reissuing games on the GBA, and thus it should be equally unsurprising that Nintendo is primarily going after GBA emulation rather than the recent (and spectacular) Dolphin [dolphin-emu.com] Gamecube emulator.

However unsurprising it is, this is the side of Nintendo that has always been there. I buy tons of their stuff, and no other company consistently produces innovative games, but they've always had an overactive corral of lawyers, and have spearheaded efforts to do far worse--such as outlaw sales of used copies and rentals in Japan, just to name some of their even more egregious efforts.

Downloading ROMs != Making one

Listen. It's not fair use if you download a ROM off of the internet because it's not a backup YOU made. If you make the backup for private use and don't share it with anyone, then it's fine, but if you make a backup and post it on the internet, then that's obviously not for private use and thusly is why Nintendo's going after them.

Personally my ethics with emulation is that if the system is still available to be bought at most places then emulating it is very bad. Anything else I don't mind. Here's my reasoning. You probably would have to go through fifty hoops and pay out of the ass to get an old game that will probably be used so the company that made it isn't making any money off of you anyway. But with current games and consoles the companies haven't fully milked the games for their worth yet so emulation eats into their market, even if a large number of emulator players are downloading and playing ROMs because they can't afford the real game there's still some that are doing it to avoid paying any money. Since these are video games that take anywhere from 6 months to 3 years to make (when was the last time it took a musician 6 months to make an entire album?) for a a week , I'm more inclined to side with the "big bad" company rather than the emulators on this one.

Also, from what I can read (and I'm not a lawyer, of course) the patent is for "software implementation of a handheld video game hardware platform," which means to me that the emulation is for handheld hardware meant for gaming first and foremost. Don't go all "Nintendo's gone too far! They could possibly stop emulation of [blah] on [blah]!" because unless the first one reads "Game Boy" something, Nintendo probably couldn't give a shit. Nintendo's not SCO. Period.

Flame me away, whoo!

handheld emulation

I used my standard handheld (screwdriver) to emulate another handheld (phillips screwdriver), so I guess I owe Nintendo an apology... I showed someone else how to do it too, so does that mean I violated the DMCA since the handheld (screwdrivers) were hardware-keyed for their intended purposes and I circumvented the useage restrictions?

Maybe I should have a lawyer haul around my toolbox for me.

And for those who still don't get it, software tools are just like hardware tools, but the lawyers are trying to make it illegal to do with software what people have been doing with hardware for thousands of years. So if you substitute "screwdriver" for whatever tech or digital tool and the issue suddenly doesn't sound criminal anymore, maybe it shouldn't have been brought up in the first place.

Not necessarily defending Nintendo, but...

Now, this is not a troll, but I thought that it might be interesting to carry out a thought experiment. I support the little guy as much as everyone else, but at the same time, sometimes, there may be more beneath the surface, and it could be interesting to speculate a bit about that.

I see that the flames have already begun, and that is not an unexpected reaction when a big company threatens a tiny company for alleged infringement on some obscure patent (obscure to most of us normal people anyway).

But please, take a few minutes to follow the links in the story, and you will notice a couple of things:

First, notice how Nintendo is cracking down on a commercial product - this emulator is actually being sold. The company selling this emulator is making money by emulating Nintendo, and while I'm not quite decided on whether this is actually bad or not, I can actually understand where Nintendo is coming from here. He's making money instead of Nintendo - some people will buy the emulator instead of the GBA itself. It makes sense for Nintendo to do something about that. So they are cracking down on a commercial entity competing directly with them by offering something which emulates their product, not some hobbyist who doesn't make a dime from it. Good or bad? That's not up to me to decide.

But wait, there's more!

Very few comments here seem to mention the fact that this emulator isn't even available yet! That's right, the sales are actually pre-sales. People have been paying for promises of a delivery, and it seems that it is delayed already:

"Sorry Kyle, but I think you have an obligation to refund money now and look into it later. Without a product to release, you've essentially stolen everyone who preordered (like myself)'s money. I'm not trying to hammer you and I'm sure that you're pissed too, but I did pay $15.99 to have Firstorm gbaZ on March 12, 2004 and not any other time. Those were the terms of the sale. Hopefully this will all blow over." (source [crimsonfire.com])

Now, we should probably give the author the benefit of the doubt, and I must admit that I do not know how well known or respected he is, but this seems to be a rather convenient time for the author of the emulator to have an excuse for delaying the product.

I'm not saying that something fishy is going on here, but there's always that tiny possibility. If you had sold a product which you promised to deliver on a certain date and failed, wouldn't it be convenient to have something to blame, to be able to postpone the release and continue work on it until it is actually finished?

It would of course be silly of this guy to falsely accuse Nintendo of this, as Nintendo would probably be all over him, but people have done stupid things before, out of sheer desperation... Instead of losing face, people have been known to do rather silly things. And I don't have to mention SCO, do I? Not that they have any face left to lose...

But please people, take the time to have a quick look at the links in this story and make up your own minds. Maybe Nintendo is doing something really bad here, or maybe they aren't. Maybe there's more to this story than meets the eye.

Time will tell.

An actual excerpt from the patent:

...computer system comprising:

said first type microprocessor that loads and executes emulation software, and parses and interprets a binary image capable of being executed on said handheld video game platform, said first type microprocessor converting, with said emulator software, instructions within said stored binary image for said second type microprocessor into instructions for execution by said first type microprocessor and then executing said converted instructions, said second type microprocessor implementing, under control of said emulation software, a state machine that emulates plural states exhibited by said display circuitry associated with said handheld video game platform liquid crystal display, said first type microprocessor analyzing, with said emulator software, said binary image to determine whether said binary image constitutes a predetermined video game title...

I don't know what it means. But it looks a bit like html metatags trying to lure in people searching the web for the word "said".

There's A Bigger Issue Here.

I don't believe this is just about a Nintendo emulator, it has a lot more to do with the games scene and emulation in general.

Firstly, the whole issue of old games ROMs and Abandonware is very grey anyway. The games companies and authors that own the rights to older games do not accept or approve of the free distribution of ROMs or Abandonware - it's more of a case that there is simply no point from a financial perspective in them taking up legal litigation against ROM/Abandonware sites. If they did, they would need to prove some financial loss as a result and how can any of them prove financial loss from the free distribution of a game that is no longer sold anyway?

Secondly, the interest in emulation is growing globally. To the games manufacturers, this purely means that more and more people are now playing more and more older games free of charge rather than spending money on new games. Sure, the volume of sales of each game is much more than it was, say, 15 years ago in the days of the Commodore Amiga, but then development costs of each game have skyrocketed also so the overall profits are much tighter. The console and games manufacturers definitely do not like free emulation, no matter how much emulation sites claim to be doing it to "preserve games historically", etc. etc.!

From my perspective, the state of computer games is similar to that of the state of music sales today. People are buying more games and music than they ever were but the market for both is now totally saturated - in the case of music, most sales result from people buying older music, possibly through replacing of old vinyl LPs with CDs.

With older games, a few companies have made commercially emulated games available on some platforms (e.g. "Atari Arcade Hits") but these have not sold particularly well because anybody who has an Internet connection can go get hold of MAME (or another free emulator) and a few ROMs and get them for free.

It's going to be interesting to see how the games companies react to this in future.

The music companies are already seeing that they cannot simply continue fleecing the customer for more and more money without putting out truly innovative product unless (in their minds) they start bringing in DRM and copy-protected CDs. In actuality, it's simply about adaption to a change in customer demand, all of whom want the ability to put music on portable players, download individual songs at a fair price, etc.

In the same way, emulation reflects a change in customer demand to the games market. There's a lot of older people, myself included, who spend more money buying CDs of albums released 20 years ago and more time playing games released on platforms that are anything up to 20 years old rather than buying the new products.

In the cases of both music and games, the vendors in both markets need to realise that the markets are now totally saturated and that not everybody wants the latest CD by the latest boy band or the latest state of the art graphics in a game.

It's time for both markets to adapt to customer demand and rather than spending billions of Dollars/Pounds/Euros forcing sub-standard new product down our throats with advertising, they need to simply listen to the customers.

Most emulation fans will have no problem paying for commercial emulators or old ROMs provided that the price is fair to reflect the age of the products, in a similar way that we expect back-catalogue CDs to be cheaper than current releases.

No they are not.

Nintendo used to be the leader in video games and consoles, but now they've seriously lagged behind everyone else (Sony and MS primarily).

They are lagging behind Sony, though only on the home console front, not portable. The GameCube is leading the XBox worldwide; in fact it was never in third. Furthermore, Microsoft has lost money on its games division every quarter, wheras Nintendo has primarily gained money. To say Nintendo is lagging Microsoft just sounds ridiculous.

In terms of using dirty legal tactics, they're no worse than anybody else. Micosoft is the one who's done the most ridiculous thing I've seen so far in trying to stop XBox Linux [sourceforge.net] (even though it's a legitimate use for the product). As far as I know, neither Sony nor Nintendo has voiced similar complaints about Linux on their respective systems. As for piracy, all three use any edge they can to crack down on it.

So how, exactly is the parent Insightful? Am I missing something in this post?

Re:nintendo suxors

I agree Sega is better, but Nintendo does not suck. They have created great titles just like Sega does. Sega and Nintendo are kind of teamed up. Sega now releases exclusive titles for the Nintendo GameCube AND Gameboy Advance.

Everyone complaining about fair use and backup copies, but lets be realistic. Very few of you out there have ever ripped a cartridge just to have a backup copy. If people were just making backup copies, Nintendo wouldn't be taking the actions they are taking. When you download a ROM and play it without buying the game, that is stealing. Don't lie to yourself, it's stealing, just like if you walked out of the store with the cartridge under your coat. If you actually like the games you play, you need to buy them or they will stop being made. This is basic economics; supply and demand. You cut off the demand, and they stop supplying. If you must pirate something, pirate an old NES ROM, or something outdated that no longer matters.