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PostPosted: Mon Jul 23, 2018 2:12 pm 
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Via TorrentFreak:


Sites hosting freeware ROMs and emulators without bundled ROMs or non-HLE BIOS are still safe, correct? But I can see how things like this scare Red Hat into not carrying emulators.


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PostPosted: Mon Jul 23, 2018 4:55 pm 
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tepples wrote:
Sites hosting freeware ROMs and emulators without bundled ROMs or non-HLE BIOS are still safe, correct?

Let me know how your talk with a practising attorney in intellectual property or DMCA litigation goes. THERE IS NO OTHER AUTHORITATIVE SOURCE. Repeat the last sentence a thousand times, then after that, repeat it a thousand more.

Nintendo is obviously concerned with their property. The case filed is labelled Copyright and Trademark Infringement, specifically with regards to: 1) ROM images, 2) BIOSes, 3) musical works, 4) audio recordings (presumably of #3). They also cite use of Nintendo's registered trademarks (specifically: logo, video game characters, etc.) in attempt to "lure" visitors into downloading or using Nintendo's copyrighted works.

Items 17 and 18 are most relevant to anything relating to this site (forum, web, wiki):

Attachment:
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I would also suggest skimming the rest of the case -- note the screenshots combined with the description (that use of Nintendo art/graphics were used alongside propagation of piracy).

Decades ago, I warned folks that Nintendo would do this, particularly when they started doing things like releasing The Legend of Zelda Collector's Edition for GameCube and adding NES/Famicom emulators into Animal Crossing. It reassured that their intellectual property was still considered theirs (i.e. not public domain) because "they were still making money off it". The social responses I got were pretty much "LOL yeah right"; now it's my turn to roll my eyes at chosen ignorance.

In short: make sure nothing on the site uses Nintendo logos, or anything else that is definitively known to be theirs. I can't think of anything off the top of my head that might apply....... except for whoever authored this. While that image has no relation to distribution or propagation of pirated works, it doesn't change that it's a leverage point for legal action. That's how this works legally -- a company finds something they can sue for, their lawyers agree, and then begin appending as many other supportive points to the filed complaint, no matter how small. The more points/evidence, again no matter now small, the more their case holds merit in the eyes of a judge.

This might also be worth pulling, although what it's used for absolutely requires a visual for it to make sense. I believe Taito or Ubisoft (not sure which one) are responsible for that game title, not Nintendo, but my point stands.

You may want to vet all wiki images and attachments.


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PostPosted: Mon Jul 23, 2018 5:23 pm 
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koitsu wrote:
I can't think of anything off the top of my head that might apply....... except for whoever authored this. While that image has no relation to distribution or propagation of pirated works, it doesn't change that it's a leverage point for legal action.

...

This might also be worth pulling, although what it's used for absolutely requires a visual for it to make sense. I believe Taito or Ubisoft (not sure which one) are responsible for that game title, not Nintendo, but my point stands.

A screenshot is a lot different than a ROM, I think you're extrapolating this to an unreasonable extreme.

(Both of these are quite firmly in "fair use" territory. Nintendo isn't about to start suing MobyGames over its screenshot collection. This is not the same as suing someone over a ROM at all.)


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PostPosted: Mon Jul 23, 2018 5:46 pm 
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But, I have heard of Nintendo taking down YouTube videos of gameplay because of copyright on the MUSIC.

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PostPosted: Mon Jul 23, 2018 5:57 pm 
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dougeff wrote:
But, I have heard of Nintendo taking down YouTube videos of gameplay because of copyright on the MUSIC.

That's mostly due to automatic content detection. SMB's recorded soundtrack, for example, is registered to be detected and automatically DMCA'd. This applies to a lot of recorded music in their library, not just Nintendo's.

Nintendo in general doesn't like people making videos of their games, and has that whole partnership system to allow them to curate it. They do a lot of automated searches and DMCA stuff in this regard. Video and copyright practice is a big huge topic of its own though. There are very different rules and precedents for video than something like screenshots.

FWIW, I also think it would be a huge leap to think that Nintendo suing people for ROM distribution means that they'd start suing people for streaming videos of their games. The DMCAs against streamers are already bad enough publicity for them, suing them would be insane.

ROMs on the other hand, yeah of course they can sue for that. They've always had that right.


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PostPosted: Mon Jul 23, 2018 6:17 pm 
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rainwarrior wrote:
(Both of these are quite firmly in "fair use" territory. Nintendo isn't about to start suing MobyGames over its screenshot collection. This is not the same as suing someone over a ROM at all.)

I explained in my prior post that in cases like this, legal departments find one huge problem, then begin appending smaller items to support their claim. ROMs aren't just the exclusive concern, but it's the bulk of their focus.

Once a legal department gets started, all sorts of stuff starts happening, and the third-party companies that Nintendo and others rely on to determine if there are violations start ramping up. And there are several such companies: I had to deal with one when I ran Parodius for a supposed violation. I can tell you the story if you'd like to hear it -- it's highly relevant to what I'm discussing here, because it involved a specific graphic (read: a single graphic consisting of, if I remember correctly, 2 colours) in a homebrew ROM. The site owner opted to remove the ROM immediately and everyone was happy.

The case this thread discusses also outlines use of trademarked and registered logos and "copyrighted works, including those works as identified in Exhibit A". The quote I use there is verbatim from the filing, and is used repeatedly throughout several pages.

Sadly, I cannot find "Exhibit A" in the filing (I can find Exhibit B), with the only description being (of Exhibit A) that they are "copyrights". I believe the paralegals may have accidentally forgot to add "Exhibit A:" in the filing, which leads me to believe this is Exhibit A since it's the first visual depiction provided:
Attachment:
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This is shortly followed by a definition of Exhibit B (read the text, it's clear), and all subsequent images I believe fall under that case:
Attachment:
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Untitled2.png [ 82.5 KiB | Viewed 1651 times ]


And now that I read this even more closely, you know who should be extremely concerned, re: box and packaging art (which, FYI, includes cartridge labels)? BootGod.

So, circling back to what I said in my first reply: "Let me know how your talk with a practising attorney in intellectual property or DMCA litigation goes. THERE IS NO OTHER AUTHORITATIVE SOURCE. Repeat the last sentence a thousand times, then after that, repeat it a thousand more."

Until that can be done, it is best to err on the side of caution.


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PostPosted: Mon Jul 23, 2018 6:33 pm 
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I've tweeted the Ars Technica article author, Sam Machkovech, asking if he knows where the definitive Exhibits A and B are. Without these, it's a bit hard to determine just "how extreme" Nintendo is being on the aforementioned point.

I say this in full agreement that their main focus in the case is on the distribution of ROMs and BIOSes. But the problem is that "added case points" tend to set precedents for future cases, ones which might not be as deliberate in nature.

And I dunno about you, but I have zero interest in going head to head with the behemoth. I will gladly succumb to whatever Nintendo wants legally because it doesn't matter if they're right or wrong -- the defendant will be financially (and emotionally, possibly physically (health-wise) due to stress) destroyed as a result of battling such a company. I've been through a legal case (vs. a US state), and I wouldn't wish the legal process upon anyone. It takes a toll that's hard to describe -- even if you're deemed innocent.


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PostPosted: Mon Jul 23, 2018 6:57 pm 
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I want to replace the animation in "PPU scrolling". Which well-known NES game has horizontal scrolling with horizontal arrangement/vertical mirroring and a publisher that has a healthy relationship with its fans?


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PostPosted: Mon Jul 23, 2018 7:06 pm 
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They've got a case on the ROM infringement just by itself. That big long statement is a description of everything objectionable they could possibly find going on at that website. Not every point in that section of the document is something they are seeking action for, a lot of it is just pure description of the site and what is happening on it. One entry describes a top 100 list in detail. They're not suing them for making a top 100 list. The description is there to support the case about how much their ROMs have been downloaded.

This laundry list description does not constitute them suing over every use of screenshot or box art. This particular case is probably quite justifiably not covered by fair use, but it's only tangential to their target goal anyway. Not everything in that document has to stick, and a much of it just wouldn't be worth throwing at it by itself.

They're not going to sue Wikipedia for: https://en.wikipedia.org/wiki/File:Supe ... verart.png or Giantbomb for: https://www.giantbomb.com/images/1300-2362272 or Mobygames for: http://www.mobygames.com/game/super-mar ... rId,16093/

Doing that would be extremely different than how they've tacked this element onto a description of their case against a very clearly and badly infringing ROM site. There's no reason to think that also applies to this.


And sure, you can say "I don't want to hear it unless it's from a qualified lawyer" to anything I'm going to say here, but I kinda feel the same way about the fear you're trying to generate here. It's just not warranted to insinuate that NESDev will be sued for lidnariq's indiana jones diagram, or tepples' scrolling diagram. Those things have always been relatively safe, and they're both excellent content that are an asset to this place. Some stuff is worth getting people scared of, but not these.

...and if you're the site's owner, if you wanna set some rules against that stuff I'd follow them, no problem at all. However, it's my opinion that we don't have to be worried about those screenshot diagrams on the wiki, those things are Fair Use to a T. LoveROM's catalogue was not.


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PostPosted: Mon Jul 23, 2018 7:51 pm 
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There are potentially a number of random attachments in forum posts that could constitute copyright infringement - I'm not sure anyone has the energy to go through thousands(?) of attachments to figure out what would need to be removed, though.

I do believe it's unlikely Nintendo would go after a small community that isn't making money out of it (nor blatantly trying to distribute copyrighted works) - they literally have hundreds (if not thousands) of more important targets to take care of (e.g every single rom site on the internet) before Nesdev even comes close to being an issue.

Also, doesn't Nesdev technically benefit from safe harbor provisions due to the site's content being posted by its users? So long as DMCA takedowns are promptly taken care of when/if received, I don't think getting sued is really a possibility here. But of course, I am not a lawyer.


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PostPosted: Mon Jul 23, 2018 8:05 pm 
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At this point, I'm leaning toward keeping Indy but replacing Mario. One well-known reference wiki has this policy: "Non-free content is used only where no free equivalent is available, or could be created, that would serve the same encyclopedic purpose." The Indy illustration shows how that particular image of Indy is drawn, and I deem it less replaceable than the Mario animation, which illustrates a more generic concept. The release of Nova the Squirrel, a competent platformer distributed under a free software license, shows that creating a free equivalent is practical. So here it is:

Image
Animation of a scroll seam using Nova the Squirrel graphics


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PostPosted: Mon Jul 23, 2018 8:26 pm 
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Sour wrote:
... I do believe it's unlikely Nintendo would go after a small community that isn't making money out of it (nor blatantly trying to distribute copyrighted works) - they literally have hundreds (if not thousands) of more important targets to take care of (e.g every single rom site on the internet) before Nesdev even comes close to being an issue.

Quoting myself:
koitsu wrote:
... and the third-party companies that Nintendo and others rely on to determine if there are violations start ramping up. And there are several such companies: I had to deal with one when I ran Parodius for a supposed violation. I can tell you the story if you'd like to hear it -- it's highly relevant to what I'm discussing here, because it involved a specific graphic (read: a single graphic consisting of, if I remember correctly, 2 colours) in a homebrew ROM. The site owner opted to remove the ROM immediately and everyone was happy.

Remember: Parodius ran a strict no-ads / no-monetary-income regiment from day one until its closure. Yet the above happened. It had nothing to do with a site making money, it had to do with a hired company doing what they were hired to do. Sure, a larger site obviously will be more likely to get focus (duh), but some of these operations care about even the smallest of things.

My offer to tell the story stands -- and if people don't believe it, they can ask Martin Nielsen, the site owner, who can verify it. It was over a homebrew Atari 2600 title that contained a single 2-colour sprite (possibly animated) that "was in copyright/trademark violation", and came from a well-established copyright infringement "discovery" company -- ironically, located in England -- that a major (triple-A) gaming company relied on for their infringement reporting services. All of Parodius could have been shut down (permanently), Martin and/or myself sued or taken to court (e.g. infringement charges filed), etc. etc. had a) the co-location provider I used not contacted me immediately upon receiving the notice, b) Martin had been out of town/unavailable (i.e. he responded to my Email very quickly), and/or c) had Martin said "no, I'm not going to remove this supposed violation, it's a homebrew".

Sour wrote:
Also, doesn't Nesdev technically benefit from safe harbor provisions due to the site's content being posted by its users? So long as DMCA takedowns are promptly taken care of when/if received, I don't think getting sued is really a possibility here. But of course, I am not a lawyer.

The way the real-world process works in the United States is as follows:

1. The content is discovered, often through a third-party investigative service who scours the Internet (using proprietary tools they've created, as well as a lot of manual effort; there are several well-known companies that do this, and most large gaming companies rely on these smaller companies to do it, because who has the time to sit around digging around on Google/Bing/Baidu/Naver for this type of stuff?),

2. This part is important to understand: the reporter contacts the owner of the IP network responsible for providing network access to the site where the content resides. This may happen recursively, i.e. contact who owns the IP space, followed by the company that owns the larger part of the IP space, followed by the company who owns the even larger part, etc... It's very common to see several CC'd. They often do not contact Abuse addresses or "owners of the website", they go right for who provides the network access. If the person running the hosting server works at/for the network provider, things can get very dangerous (read: possibly losing your job).

In the case of nesdev, they would start with QWK.net Hosting LLC in Idaho. QWK.net would be required to forward the DMCA notice on to the customer. If no response from either entity, the next phase would be to involve either transit providers of QWK.net, which would include Cogent/PSINet and/or Integra Telecom, informing them of the violation and lack of response from QWK.net and its customer. This may or may not also include attempted contact with local law enforcement to "speed up" the process,

3. The duration of time permitted for response varies, but it's between 24 to 72 hours. The reporter can request whatever duration they wish, but 24-72 seem to be most common. The time permitted for removal is usually stated within the DMCA takedown notice, but sometimes it can be negotiated assuming the reporter receives some contact from one or more provider(s),

4. If the content is removed within the duration of time, the reporter "makes note" (in a database, etc.) of the violation. If the number within N days exceeds some arbitrary amount (it depends on the client/company who is dictating the rules), it's deemed "high risk" (i.e. likely to recur), and legal action often begins. If the number within N days is below some arbitrary amount, then all is fine/dandy,

5. If the content is not removed within the duration of time, the reporter steps up their game. Sometimes this can include/involve law enforcement, especially if the reporter can manage to find a geographic region that appears accurate. A lot of manual investigation is done in advance, by humans.

That said: in the United States, you can sue for any reason you so wish. The trick is finding a firm or attorney who is willing to do it. If the claim is ridiculous (frivolous), an attorney won't take it (though some will, assuming they think they can win the case and make some money off of it; it's rarely about justice). But that's the ruse: large behemoth companies have large behemoth firms and legal teams. Those firms/teams rely on several medium-sized companies to "dig up" DMCA violations (that's what they do as a company).

This process isn't new in any way -- it worked very similarly prior to DMCA existing (i.e. to report pirated content, inappropriate content, etc.), although "back then" usually phone calls were made right off the bat. Nowadays Email is the default, with phone calls being secondary or tertiary.


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PostPosted: Mon Jul 23, 2018 8:37 pm 
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@tepples -- that looks like quite a good replacement. :-) I might suggest deleting the original attachment (there's a way to do this within Mediawiki, something under Special Pages, I forget; it doesn't truly delete it, but it basically makes it hidden from the history, I think?)

In short, I'd be overly concerned with anything containing literal copies of graphics or sprites of actual Nintendo-authored games. Nintendo has a history of behaving this way; I don't think Taito or Ubisoft do.


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PostPosted: Mon Jul 23, 2018 8:42 pm 
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Sour wrote:
Also, doesn't Nesdev technically benefit from safe harbor provisions due to the site's content being posted by its users?

Safe harbour isn't an automatically granted thing. There's been a lot of cases of sites that host user submitted content on either side of this, AFAIK. YouTube had to fight to make it clearly apply to themselves.


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PostPosted: Mon Jul 23, 2018 10:40 pm 
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koitsu wrote:
In short, I'd be overly concerned with anything containing literal copies of graphics or sprites of actual Nintendo-authored games. Nintendo has a history of behaving this way; I don't think Taito or Ubisoft do.

TCRF confirms that this title screen is indeed the Taito version's. Taito Indy is in essentially the same position as Kingdom Hearts now that Square Enix has bought Taito and Disney has bought Lucasfilm.


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