THE NINTENDO EMULATION FAQ v2.0 - A COMMENTARY
by the Scribe

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We've come a long way, haven't we?

I wouldn't be revisiting the Nintendo EmuFAQ had they not recently revised
it.  Both they and I have been forced to retrench our respective positions
since we last clashed.  I now better understand the legal underpinnings
behind some of their original arguments, and they now better understand
the overreaching nature of at least one of those claims.  As a result, the
new Nintendo FAQ is a marginally improved document, and it gives me pleasure
to once again provide commentary on its new incarnation.  This time, I'll
try to keep my screwball sense of humor in check - but no promises.

NOTE:  Any reference I make to Nintendo's Emulation FAQ will be shortened
as "the Nintendo EmuFAQ."  Any other use of the term "EmuFAQ" is understood
as referring to my effort, EMULATION: RIGHT OR WRONG (aka "the EmuFAQ").
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1)  What are ROMS?

    A ROM ("Read Only Memory") is the type of chip used in Nintendo's video
    game cartridge which contains the game software. However, this term is
    commonly used on many gaming sites on the Internet that refers to game
    data that was copied from an authentic video game cartridge.

    [Hmmmm, I've heard this definition before....]

    ["The common form of the binary image file as of today is the cart dump;
    this term arises from the use of special hardware to literally "dump"
    the computer code stored within a ROM-based delivery system like those
    used in your typical videogame cartridge.  This is where the slang use
    of 'ROM' first originated." - The EmuFAQ, Module 2, Part 1 - "Altering
    the Software Base"]

    [Actually, this is a NEW ADDITION to the Nintendo EmuFAQ, and I must
    commend them for including it.]

2)  Are all ROMS on the Internet illegal?

    All ROMs published for play on Nintendo hardware and available on the
    Internet are unauthorized and infringing copies of copyrighted works.

    [Absolutely correct.  Compare with their original statement:]

    ["Yes.  All ROMs available on the Internet are unauthorized and
    infringing copies of copyrighted works." - from the original Nintendo
    EmuFAQ]

    [Nintendo has not authorized ROM dumps of its videogame cartridges,
    therefore all 'ROMs' of Nintendo games are "unauthorized and infringing
    copies."  This does not deny the existence of public domain 'ROMs;'
    rather, it confirms that Nintendo has yet to authorize a single cart
    dump of one of its proprietary titles.  They are exercising their right
    of exclusive distribution under U.S. copyright law (US 17 CFR 104).
    Also, loading that unauthorized "ROM" into your computer RAM creates
    yet another infringing copy (see MAI vs. Peak) not covered by the DMCA
    revisions to the U.S. Copyright Act (US 17 CFR 117, paragraph c).  You
    are not "servicing" the game or the system, therefore using the
    unauthorized "ROM" to play the game is copyright infringement.]

    [I'm so proud of Nintendo for at least indirectly acknowledging the
    presence of public domain "ROMs" that I could almost kiss 'em.  This
    is a major change in their public position on "ROMs," however small
    it appears on the surface, and we should give them proper praise in
    this regard.]

3)  Can I Download a ROM from the Internet if I Already Own the Authentic
    Game?

    There is a good deal of misinformation on the Internet regarding the
    backup/archival copy exception. It is not a "second copy" rule and is
    often mistakenly cited for the proposition that if you have one lawful
    copy of a copyrighted work, you are entitled to have a second copy of
    the copyrighted work even if that second copy is an infringing copy.
    That is utterly ridiculous and legally unsupported. Therefore, whether
    you have the authentic game or not, or whether you have possession of
    the ROM for a limited amount of time (24 hours), it is illegal and
    infringing of a copyright to download and play a ROM from the Internet.

    The backup/archival copy exception is a very narrow limitation relating
    to a copy being made by the rightful owner of an authentic game to
    ensure he or she has one in the event of damage or destruction to the
    authentic. It is well established by judicial decisions in the United
    States that this limited exception does not apply to game data contained
    in ROM semiconductor chips in video game cartridges.

    [Absolutely true.  The courts have recognized that "ROMs" do not qualify
    for the archival provision (US 17 CFR 117, paragraphs a & b) of U.S.
    copyright law (see Atari vs. JS&A Group).  You, as the average user,
    do not qualify to make an adaptation of a videogame contained within a
    form of permanent storage media, such as a game cart or the ROMs in an
    arcade game, because that privilige is reserved exclusively for
    developers under the sole exception of reverse engineering (see Sega
    vs. Accolade and Nintendo vs. Atari, also US 17 CFR 1201, paragraph f).
    Remember what I said in the EmuFAQ concerning the average user - "No
    matter how you twist it, bend it, invert it, turn it around or even
    inside out, it is illegal to produce or possess a 'ROM' that originated
    from a piece of hardware unless specifically authorized by the copyright
    owner of the computer code involved."  For more information and
    additional legal reasoning, see the EmuFAQ.]

4)  What is a Video Game Emulator?

    An emulator is a software program that is designed to allow game play on
    a platform that it was not created for. The emulator software allows for
    console based or arcade games to be played on personal computers. The
    video games are obtained by downloading illegally copied software, ROMs,
    from Internet distributors. The ROMs then work with the emulator to
    enable game play on the computer.

    [Now here is where I start having problems with the big N.  Nothing else
    in the Nintendo EmuFAQ has changed.  Technically, their statement is
    correct; however, the way it is worded might lead an unsuspecting reader
    to believe that emulation is illegal.  Emulators in themselves are not
    illegal (see Apple vs. Readysoft); however, playing unauthorized copies
    of videogames on an emulator IS illegal because of the illegal nature of
    the games (see points 2 and 3 in this document).  The nature of the
    emulator has nothing to do with it, with the sole exception of one that
    contains proprietary vendor microcode - which would also make the
    emulator itself illegal (see AMD vs. Intel, Sony vs. Connectix).]

    [Not all emulators are videogame emulators, but I will forgive Nintendo
    for that little oversight - after all, they are a videogame company, and
    videogame emulation is their only concern.]

5)  How Does Nintendo Feel About the Emergence of Video Game Emulators?

    The introduction of video game emulators represents the greatest threat
    to date to the intellectual property rights of video game developers.
    As is the case with any business or industry, when its products become
    available for free, the revenue stream supporting that industry is
    threatened. Such emulators have the potential to significantly damage a
    worldwide entertainment software industry which generates over $15
    billion annually, and tens of thousands of jobs.

    [No change here.  Note that it is the threat to Nintendo's "revenue
    stream" that would put in jeopardy any claim that those who dump "ROMs"
    might make with regards to "fair use."  Remember, the effect on a
    potential market is the single most important part of the "fair use"
    test (see Nimmer on Copyright), so the free distribution of "ROMs" is a
    significant threat.  It is important to note, though, that the courts
    have yet to find substantive cause that a specialized third-party
    product designed for use with a given computer system's software can
    have a significant impact on sales for the original system (see Atari
    vs. Coleco, Nintendo vs. Galoob), so it would seem that the emulator
    itself is safe for now - assuming that it is a "clean room" product,
    of course.]

    [The only problem with this argument, though, is that slippery
    definition of "economic viability," and I think both Nintendo and Sony
    (PSX) have a valid argument here.  After all, emulators for their
    systems came out while their consoles were still very much alive and
    kicking.  The only guide for litigation in this regard is the A-Max case
    (see Apple vs. Readysoft), but even there Apple was getting some
    royalties from Mac BIOS ROM sales to A-Max users, who had to go out and
    buy the real thing in order to get A-Max to work.  Nintendo and Sony are
    getting absolutely nothing from their emulation problems.  Zero.  Zilch.
    Na-da.  Not a pfenning.  Not even a farthing.  No, the "software
    royalties" argument doesn't apply, as A-Max was in the same situation.
    It will be interesting to see how Sony's litigation in this regard turns
    out, and I'm sure that the big N will be paying close attention to the
    lawsuits over bleem! and the Virtual Game Station.]

6)  What is Nintendo's Position on the N64 Emulator, the UltraHLE?

    The UltraHLE is illegal. The N64 emulator infringes Nintendo's
    intellectual property rights, including copyrights, and circumvents
    Nintendo's anti-piracy security system.

    ["The UltraHLE?"  I thought they came in six-packs. ^_^]

    [Identical wording from the last time, and my response is the same.  To
    quote the most important part of my original response, "They can't make
    a viable court case unless they can prove one of [two things]:  use of
    copyrighted code or patent/trademark violation."]

    [So how do they see UltraHLE as an infringement?  Well, they hold
    patents and copyrights on the N64 hardware and microcode.  If UltraHLE
    violates those patents or unlawfully duplicates portions of copyrighted
    Nintendo microcode, then ergo - intellectual property infringement.
    The only way to prove otherwise would be for Epsilion and RealityMan to
    release their source (HELLO, GUYS!), just as most of the developers of
    the current crop of N64 emulators are using.  Remember, "clean room"
    reverse engineering of a piece of hardware is perfectly legal (see IBM
    vs. Phoenix), but using proprietary vendor microcode (see Apple vs.
    Franklin) or code protected by a software patent (see Stac vs.
    Microsoft) is in fact illegal.]

    [So, let's assume the patent and copyright hurdles are successfully
    leaped.  What's left?  Trademark infringement.  A-HA!  That @#$(!*@#!
    Nintendo graphic that appears at the start of every licensed N64 game!
    Both the 3D "N" and the Nintendo logo are registered Nintendo
    trademarks.  If UltraHLE (or any other N64 emulator) is used to run a
    "ROM" that contains either one of these or any other Nintendo trademark
    without Nintendo's explicit permssion, then it can be said that UltraHLE
    is infringing Nintendo's intellectual property (see Sega vs. Accolade).
    No, it does no good to try and disable it - it is illegal to mess with
    a trademark generated on a computer display (see Playboy vs. Frena)]

    [Oh, boy....]

    [About the security system argument, I think that's still debatable.  If
    the emulator doesn't duplicate it and the "ROM" doesn't include it, then
    there is no issue - assuming that the "ROM" in question is one of the
    "intermediate copies" in RealityMan's possession.  After all, he's the
    one claiming that the anti-piracy security system wasn't an issue.  That
    is, of course, unless the actual game code itself somehow links to that
    security system, and there are N64 games that do just that - hence the
    many "ROM" patches, fixes, and cracks for certain N64 "ROMz."  Assuming
    that you have one of these "ROMz," which has been patched to somehow
    alter or disable that anti-piracy security system interface, then you
    now have a problem ... a BIG problem ... a LEGALLY LIABLE problem ...
    VIOLATION of a Nintendo PATENT ... and if you load any "ROM" into your
    N64 emulator that has (or had) that interface, then YOU ARE GUILTY of
    patent violation.  If you thought the penalties for copyright violation
    were bad enough, then wait until you get a taste of a patent violation
    lawsuit.  You don't want to go there.  Trust me.]

    [Oh, $#!+....]

7)  Does Nintendo Believe the UltraHLE Violates its Intellectual Property
    Rights?

    Yes.

    [But of course. ^_^  Why not?  You've still got to prove it in court,
    though, just like I said last time.  The burden of proof with regards
    to intellectual property infringement rests with the owner, not the
    infringer, as U.S. law clearly states.  Be careful, other N64 emulator
    authors - the big N is on record as saying that they WILL sue Epsilion
    and RealityMan over UltraHLE, and they've made similar moves against
    other N64 emulation projects.  Perhaps now is the time to get your
    "clean room" source code ready.  In addition, you might want to figure
    out a way to build some kind of hardware interface in order to use
    actual N64 carts with you emulator, just like A-Max did with the Mac
    BIOS ROMs (see Apple vs. Readysoft).  That way, Nintendo can't touch
    you with any contention of intellectual property violation in this
    regard, as the precedent set in the A-Max case shows.]

8)  Does Nintendo Think Emulation Companies Promote Piracy? Why?

    Yes. The only purpose of video game emulators are to play illegal
    copied games from the Internet.

    [Sigh.  No change in attitude here.  This may be true as far as N64
    cart dumps go, but not for bleem! and Sony PSX CDs.  In addition, I
    don't think the folks who will be doing the commercial emulators for
    Nintendo's new console will be getting "illegal copes from the
    Internet."  I'll also keep this in mind whenever Steve Snake releases
    the next edition of the Sega Smash Pack. ^_^  After all, that's nothing
    more than a commercially licensed version of his KGen freeware emulator,
    and Sega's the one providing the "ROMs" for it - custom format and all.]

9)  What Does Nintendo Think of the Argument that an Emulator Like the
    UltraHLE is Actually Good for Nintendo Because it Promotes the Nintendo
    Brand to PC Users and Leads to More Sales of N64 Games?

    [There's that "the UltraHLE" phrase again!  Grrrrrrrr....]

    Distribution of an emulator trades off of Nintendo's goodwill and
    the millions of dollars invested in research & development and marketing
    by Nintendo and its licensees. Substantial damages are caused to
    Nintendo and its licensees. It is irrelevant whether or not someone
    profits from the distribution of an emulator. The emulator promotes the
    play of illegal ROMS, NOT authentic games. Thus, not only does it not
    lead to more sales, it has the opposite effect and purpose.

    [I'm sure Lewis Galoob and the folks who developed the Game Genie would
    love to vent on this position (see Nintendo vs. Galoob).  The only
    statement worth considering in this claim is the fourth sentence, "The
    emulator promotes the play of illegal 'ROMs,' NOT authentic games."
    This is almost certainly true in the case of any unlicensed N64 emulator
    in possession of the average user, as cart dumps for use by the average
    user are themselves illegal in nature (see Atari vs. JS&A Group, Sega
    vs. Accolade, Nintendo vs. Atari).]

    [Finally, that last sentence about cart sales is a double diaper load,
    as anybody who's read Nintendo's latest financial statements will tell
    you.  I used to think otherwise and said as much last time, until I
    read Nintendo's news releases concerning its profits for myself.]

    [Remember, a vendor cannot redefine its interpretation of the market
    impact on its products at whim to prevent the development of a
    derivative product (see Nintendo vs. Galoob).  Nintendo has always held
    that emulation cuts into its profit margins, but they have yet to prove
    it in a court of law, and their net profits would seem to indicate
    otherwise.  Until they can prove their point, I'm going to stick by my
    position that their chief concern is maximum profit at minimum cost,
    with anything that even microscopically impacts those profit margins
    being reason enough to call in the goon squad.]

10) How Come Nintendo Does Not Take Steps Towards Legitimizing Emulation?

    Emulators promote piracy. That's like asking why doesn't Nintendo
    legitimize piracy. It doesn't make any business sense. It's that
    simple and not open to debate.

    [Oh, puh-leeze.  I won't even deign to thrash this claim again the
    second time around.  Just go read all three parts of the EmuFAQ,
    Module 1 - "The Emulator."  Emulation is perfectly legal - unless,
    of course, you're a vendor trying to maintain the proprietary nature
    of YOUR product.  To YOU, no emulator is legal unless it is YOUR
    emulator, or a third-party emulator released under YOUR license.
    Remember, maximum profit at minimum cost.  If YOU own or hold the
    license to the emulator, then it is YOUR money-making product.  Now,
    about those commercial emulators being developed for Nintendo's new
    console....]

11) How Come Nintendo Only Focuses on Closing Down Websites that Distribute
    ROMs Rather than the Emulators Themselves?

    Nintendo pursues all aspects of on-line piracy, including emulators and
    ROMs. ROMs on the Internet are unauthorized copies of copyrighted works
    of Nintendo and its third party publishers and are illegal. This is
    well recognized by all those offering emulators on these sites. Solely
    offering emulators does not insulate a person from liability for
    intellectual property infringement. Nintendo is focusing on all
    infringers.

    [No change from their last posting, and no change in my response.  I
    reproduce it in full below.]

    ["Notice how they neatly sidestepped the whole issue of emulators
    themselves?  That's because the legality of a software-based emulator
    is well established.  Nintendo and other such companies have repeatedly
    tried and failed in this regard using the 'intellectual property'
    argument as a basis.  They can threaten and they can even file court
    action, but emulator authors have just as good a chance of winning the
    case as Nintendo does based on legal precedent.  That's why they and
    other companies involved in such disputes almost always back down or
    make deals on the side.]

    ["The point they make is a good one, though - the illegial distribution
    of commercial titles that their authors have not placed into the public
    domain.  Remember that ol' 'infringing copy' defintion.  Also, just
    because a ROM doesn't have a copyright notice doesn't mean it's public
    domain, according to the Berne Copyright Convention.  Rarely can
    webmasters prove the legality of their on-line ROM postings, and rarely
    are they 100% legal; therefore, they get shut down.  'Well, I'm just
    offering emulators,' you might say.  Don't forget the 'intellectual
    property' issue.  Nintendo may not be able to win that point in court,
    but they have the means and the money to make your life quite miserable
    for some time while you try to prove your case - an effort you may not
    be able to financially handle.  Perhaps the best thing to do is to
    start sponsoring Nintendo flame sites, because that's just about the
    only way not to get sued if you take that 'intellectual property'
    argument to its logical extreme.]

    ["I've noticed lately that most of the reputable emulation sites are
    now taking great pains to shy away from anything that would cause them
    legal headaches.  The few that still get into trouble are the ones that
    don't do their legal homework, and they're generally cooperative with
    the ISDA, ESRB, SPA <now the SIIA - ed.>, and other software police
    agencies in this regard."]

12) People Making Emulators and ROMs are Helping Publishers by Making Old
    Games Available that are No Longer Being Sold by the Copyright Owner.
    This Does Not Hurt Anyone and Allows Gamers to Play Old Favorites.
    What's the Problem?

    [As Nintendo's response has not changed, I reproduce their contention
    interspersed with my commentary almost exactly as it appeared the first
    time around.]

    The problem is that it's illegal.

    ["Well, DUH!  Give that boy a prize!"]

    Copyrights and trademarks of games are corporate assets.

    ["Read 'money-making commodities.'"]

    If these vintage titles are available far and wide,...

    ["...without a price tag and the requisite kickback for Nintendo..."]

    ...it undermines the value of this intellectual property and adversely
    affects the right owner.

    ["...nobody makes any money, and Nintendo in particular doesn't get its
    cut, either.  This is almost exactly the same argument they used when
    the cart resellers first went into business, and is still as ridiculous
    now as it was then.  Oh, and have you noticed that folks are already
    reselling N64 carts?  Tsk, tsk, tsk.]

    ["In fact, Nintendo is just about the lone holdout in the classic games
    forum, refusing to reissue or port its old titles for newer platforms -
    unless it's their own in-house platforms so they can pocket 100% of the
    profit.  No one's ever been able to figure out exactly why they insist
    on behaving this way, and many bright young intelligent people aren't
    willing to wait - hence the emulation scene.  You know, NES/FC and
    SNES/SFC are just as strong there as they ever were, and most feel that
    Nintendo could do nothing but gain if it cashed in on the emulation
    scene instead of playing the raging bull in the china shop.  Almost
    everybody else has done it, so why not Nintendo?  The sad truth is that
    they don't see any real money in porting to other systems - hence no
    old title ports or re-releases unless it's on their proprietary
    hardware."]

    In addition, the assumption that the games involved are vintage or
    nostalgia games is incorrect.  In fact, there are now more and more
    programs available that emulate current game systems such as Game Boy
    and the Nintendo 64.

    ["Nice to know that they keep up on current events."]

    Emulator/ROM piracy...

    ["No, STUPID, that's ROM piracy!  Emulators in themselves are perfectly
    legal...no, never mind.  Why should I even bother when you're not
    listening?!  You CAN'T pirate an emulator unless it's a commercial
    product!!!"  <just ask the folks at bleem LLC - ed.>]

    ...is competing head-on with Nintendo's current systems and software.

    ["True, even allowing for your blatant misinformation.  So why don't
    you fill the cases with epoxy, like IBM used to do with its computers?
    Because you know someone's going to go to the trouble to melt off the
    epoxy, dump the code, and then you'd be right where you are now - just
    a year or two farther down the road.  Come to think of it, that might
    not be such a bad idea - it gives you another year or two to increase
    the viability of those ol' 'corporate assets,' doesn't it?"]

13) Isn't it Okay to Download ROMs for Games that are No Longer Distributed
    in the Stores or Commercially Exploited? Aren't They Considered "Public
    Domain"?

    [Same contention, same comments.  I reproduce them as before.]

    ["'Commercially exploited' - at least somebody at Nintendo has a sense
    of humor." ^_^]

    No, the current availability of a game in stores is irrelevant as to
    its copyright status.  Copyrights do not enter the public domain
    just because they are no longer commercially exploited or widely
    available.  Therefore, the copyrights of games are valid even if the
    games are not found on store shelves, and using, copying and/or
    distributing those games is a copyright infringement.

    ["...unless you, as the copyright owner, place your property into the
    public domain.  Rainbird's Elite for the NES and Zyrinx Software's Zero
    Tolerance games for the Sega Genesis are two well-known examples of
    console games that have been placed into the public domain by their
    copyright owners.  Even so, Nintendo is right with regards to 'active'
    commercial titles - that is, titles whose owners are still hanging onto
    them for whatever reason.  The two examples cited above would be
    considered 'inactive' because their owners have disavowed their rights
    with regard to copyright protection."]

14) Haven't the Copyrights for Old Games Expired?

    [Same contention, same comments.  I reproduce them as before.]

    U.S. copyright laws state that copyrights owned by corporations
    are valid for 75 years from the date of first publication. Because
    video games have been around for less than three decades, the
    copyrights of all video games will not expire for many decades to
    come.

    ["Nintendo is citing US 17 CFR 302 paragraph c.  To wit:]

    ["'Anonymous works, pseudonymous works, and works made for hire. In the
    case of an anonymous work, a pseudonymous work, or a work made for hire,
    the copyright endures for a term of seventy-five years from the year of
    its first publication, or a term of one hundred years from the year of
    its creation, whichever expires first. If, before the end of such term,
    the identity of one or more of the authors of an anonymous or
    pseudonymous work is revealed in the records of a registration made for
    that work under subsections (a) or (d) of section 408, or in the records
    provided by this subsection, the copyright in the work endures for the
    term specified by subsection (a) or (b), based on the life of the author
    or authors whose identity has been revealed. Any person having an
    interest in the copyright in an anonymous or pseudonymous work may at
    any time record, in records to be maintained by the Copyright Office for
    that purpose, a statement identifying one or more authors of the work;
    the statement shall also identify the person filing it, the nature of
    that person's interest, the source of the information recorded, and
    the particular work affected, and shall comply in form and content with
    requirements that the Register of Copyrights shall prescribe by
    regulation.']

    ["FYI, this applies to every single commercial piece of computer
    software created since 1978 regardless of age or ownership, since they
    can all be categorized as "works for hire."  This does NOT apply to
    public domain titles; these are works whose authors are known and the
    lifespan of those copyrights (if exercised) is life of the author(s)
    plus fifty years."]

15) Are "Game Copying Devices" such as the Dr.V64, Z64 and Others, Illegal?

    Yes. Game copiers enable users to illegally copy video game software
    onto floppy disks, writeable compact disks, or the hard drive of a
    personal computer. They enable the user to make, play and distribute
    illegal copies of video game software which violates Nintendo's
    copyrights and trademarks. These devices also allow for the uploading
    and downloading of ROMs to and from the Internet. Based upon the
    functions of these devices, they are illegal.

    [Remember, last time I said that I was unsure of the legality of such
    devices and that I was going to research the issue.  Well, the first
    two sentences are correct - cart dumpers are illegal for the average
    user to own, obtain, use, or vend (see Atari vs. JS&A Group, also 17 US
    CFR 1201, paragraph a).  That also makes the last sentence valid.  I
    still have a problem with the use of the term "game copier," as this
    can be applied to archival programs for computer software, which are in
    fact legal (see Vault vs. Quaid).  Also, I have yet to see a "game
    copier" that could interface with the Internet, unless they know
    something about ROM dumpers that I don't.  Nintendo might want to
    change that line to read, "The illegal 'ROMs' made from these devices
    can then be uploaded to or downloaded from the Internet."]

    [As I said last time, Nintendo needs to substitute a more explicit term
    for "game copier."  Unfortunately, I don't have a good substitute to
    suggest, since Nintendo will be adopting a form of DVD-ROM format for
    its new console, so I guess we're stuck with their term for now.  Just
    be sure to understand that they are referring to the illegal duplication
    of videogame console software,  and not computer videogame software in
    general.  It is still legal to archive a videogame developed expressly
    for a personal computer system under copyright law (see Vault vs. Quaid,
    also US 17 CFR 117, paragraphs a and b).]

    [One last thing - note the careful wording of the entire paragraph.  No
    mention of a videogame cartridge anywhere.  A bit of foresight on the
    big N's part, perhaps?  More proof to support my belief that videogame
    companies plan on trying to change the definintion of "permanent storage
    media" so it can go beyond mere hardware - say, CD-ROM and DVD-ROM,
    perhaps?  Makes you wonder....]

16) Can Websites and/or Internet Service Providers (ISPs) be Held Liable
    for Violation of Intellectual Property Rights if they are Only
    Providing Links to Illegal Software and/or Other Illegal Devices?

    Yes. The websites and/or ISPs for sites which link to ROMs, emulators,
    and/or illegal copying devices can be held liable for copyright and
    trademark violations, regardless of whether the illegal software and/or
    devices are on their site or whether they are linking to the sites
    where the illegal items are found.

    [No change here, and no change in my support of their claim, either.
    A website can be held legally liable for infringing links on its site,
    and that culpability also extends to both the host ISP and any users of
    the site (see Shetland News vs. Wills and ZetNews, and Futuredontics vs.
    Applied Anagramics; also US 17 CFR 512 and US 18 CFR 2701).  I have
    learned this since my last response to the  Nintendo EmuFAQ, and a more
    detailed discussion appears in the EmuFAQ, Module 2, Part 6 -
    "Supporting the Software Base."]

17) How Do I Report Sites that are Offering Illegal Software or Other
    Illegal Video Game Products?

    Please either call and report that information to Nintendo of America
    Inc. at 1-800-633-3236 or e-mail us at [email protected].

    [At least they don't claim to be the Ghostbusters. ^_^  Who ya gonna
    call?  Nin-ten-do!]

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All-in-all, it's a little bit better than it was before.  Yes, it still has
its problems, to be sure, but at least Nintendo has made what I feel to be
an honest effort at resolving one of the more glaring errors of the earlier
release.  I still feel it needs work, given my own personal research into
the legalities of emulation, but I commend Nintendo for being willing to
modify their stance on emulation - even if only in one small way.  After
all, large rockslides start from tiny pebbles.

1 July 1999
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