Ethical dillema on repros rom hacks and homebrews

I live in a small town and it was only a matter of time before people started finding out I could put roms onto carts. I have made it perfectly clear that I have no desire to pirate games, however multiple people have asked me about homebrews ect. Would anyone mind pointing me in the right direction on some specific examples I will list off? I am kind of worried about making some of these games for people who I think want to play them, but then will wind up on Ebay ect. I dont feel like sharing a cell with the Subway guy for a decade or two.

Example 1
Any Super Famicom game ported over to the SNES

Example 2
Rom hack of a game. Such as Metroid and a sprite hack or map update

Example 3
Retranslation. Many many games come to mind. Breath of Fire 2 retranslation, Chrono Trigger Retranslation

Example 4
Custom game never released Chrono Trigger Crimson Echoes or Prophets Guile

Example 5
There is a rom of Final Fantasy 3 where they not only changed the story text but updated the graphics

Again thanks to anyone that is willing to help, I have tried looking on Google search and am finding very conflicting reports on these being considered abandonware ect. People have said that any game modded in any fashion is no longer considered the original game. Nintendo says they own a copyright for 75 years ect ect. Also I noticed there are tons of companies already doing this as well as selling on Ebay. I would love any advice I can get. Sorry if this ruffles a few feathers, I know some people don't like these types of posts. I do know though for a fact some of these people who have approached me are looking for Christmas presents for their gamer family member ect.

This answer assumes that you are unwilling to infringe any copyright. (I imagine some infringements are likely to be overlooked, but that's for someone else to answer.)

If a homebrew is released as free software, you are free to make and sell a repro. If a homebrew is not free software but is otherwise licensed to you for commercial use, you are likewise free to make and sell a repro. So I'd recommend reproducing original homebrew games, not translations or other mods of well-known proprietary games that were either released commercially or made with the intent of a commercial release, unless you can negotiate a license with the game's copyright owner. If you're also doing NES, I've started a topic listing games that are OK to reproduce.

Great links thanks for the quick response. Makes me wonder though how so many people are reproducing all over (from Canada to China to US) and I have not heard of Nintendo stomping down on them. I still remember as a child someone writing into Nintendo Power with a picture of Zelda on a SNES emulator and they seriously had the guys house raided. I know they moved pretty quickly against a few Nintendo DS games that allowed you to homebrew the system pretty recently as well.

This is a very strange statement.

Homebrews are copyright in the same way that any other game is. Their owner can place them in the public domain, or otherwise license them for free use, in which case it is legal to do this stuff, but "licened for commercial use" doesn't sound like it describes this adequately.

e.g. Super Mario Bros is certainly "licensed for commercial use", but it's not licensed to you or me for commercial use.

It may sound like I'm being tautological here, but I just want to make it crystal clear that homebrew is not fair game for repros unless the author explicitly says so (often in the form of a standard license like "creative commons"). Homebrew is no different than other games in this respect. For anything that isn't explicitly under a free use license, you must contact the owner and negotiate with them.

Also, just because something is available for free doesn't mean it's licensed for you to make copies of it, either. I could put up a ROM for free download, but that doesn't give anybody else the right to rehost it, make copies of it, etc. unless I actually say so. Jordan Mechner can release the source code to Prince of Persia freely, but this doesn't give anyone a license to make and sell copies of that game, nor does the free release of the source code give anyone the right to copy substantial material from it to reuse for their own purposes.

All 5 examples in your original post are clearly copyright violations, by the way. Changing part of a ROM doesn't negate copyright on everything left unchanged. You could replace all the graphics and all the levels in a game, but the remaining code in the game would still be a copyright violation. Changing the region doesn't negate it either, these things are protected by international copyright treaties.

There's a lot of them, and each infringement of copyright is on a relatively small scale. The technically could go after them, but it's a lot of work for little gain. Usually lawsuits against such a small thing like that seem like they're pursued to make an example to the rest, in hope that fear will deter them.

China itself is a place where I understand that copyright law is not very well enforced. Similarly there are a lot of loopholes in internet piracy involving hosting copyrighted material in particular countries to avoid prosecution. Illegal distribution of ROM files on the internet is probably 100,000x more prevalent than illegal repros. (That might be a low estimate, but in terms of what should be on their radar, repros are fairly low.)

So, all in all, it seems like most repro sellers are at relatively low risk for being sued for copyright infringement, but the risk is there.

Now, I don't know who is liable for copyright infringement if, say, someone were to give you a ROM file, and you just create a cartridge for them. You might draft a standard form, wherein they state that they own the rights to use the ROM they're giving you and are responsible for any liability due to misrepresentation of that. I've seen agreements like this for similar service. Don't ask me how well they'd hold up in court (I'm sure there's lots of cases where it wouldn't), but it does seem like a reasonable precaution. The law is still being broken, but at least it might shift the burden of this to the buyer, somewhat?

Edited. Is the new wording any better?

A little better, yes, but I suppose you really meant "licensed for free commercial use", didn't you? You listed a bunch of ROMs that are in this category, freely available and explicitly permissive about their use.

Lots of commercial licenses are paid, not free, e.g. royalty.

But then "licensed to you" covers those, as if you are party to a royalty-bearing license agreement, you ought to already know its terms.

Alright well I believe I have my answer on this subject but I do have 1 more question. Lets say I put a rom onto a cart and give it to someone as a gift or charge someone for the cost of the boards labels ect at cost. Would I still be liable if this person decides he magically no longer wants it "for his collection" and sells? Or is that lawyer question time?

You're breaking the law by making the copy in the first place. Whether you charged money for it is irrelevant. Whether they sold it later or gave it to someone else is also irrelevant. The liability is already there from the start.

Does anyone know if it's legal to make a physical copy of a game that you own, for backup?

Like, you can have a ROM if you own the game. Wouldn't making a backup cart be about the same as making a copy of a VHS tape?

Fair enough. I will definitely keep a close eye on my games at all times.

I think backups for personal use (i.e. no transfer of ownership) are usually considered exempt from copyright violation. However, if you had to defeat some kind of security measures to do it, you may be violating the Digtial Millenium Copyright Act? i.e. the copying itself isn't what's illegal in this case, just the tampering with copy-protection devices. There are some exemptions to the DMCA as well, but it's very complicated/nebulous. I don't really understand it very well myself, so don't take my word for any of this.

In practice, you're extremely unlikely to be sued for privately making copies for yourself, even if you're technically violating the DMCA to do it.

You're also pretty unlikely to be sued for making copies of stuff and giving it to your friends, or in large part even for selling it. It's against the law, but it's not easy to enforce. Piracy is rampant.

If there are any consequences at all, usually it's something like getting your eBay seller account banned, rather than being sued for copyright infringement.

I'm still kind of amazed that this made it past Kickstarter's review process: Nintendo NES: Retroplayer.nl championship 2015

So anyhow, there is hope for people that want to ignore the law and make reproductions and stuff, I guess, but it's never without risk. As for whether it's moral/ethical, that's more of a personal question, I guess? You'll get a lot of variation on that question.

In my opinion, making and selling bootlegs makes the scene look bad. This includes out-of-region games, translations, other game mods, and anything else you don't have the right to make and sell.

Honestly, I tend to agree.

There are a lot of different angles to it, and it's really easy to dismiss the big companies, especially for software that's been abandoned, but what about independent game retailers?

I don't know about you guys, but when I see a little game store with vintage stock, I like to dig through their cart selection. It's a fun little part of vintage gaming culture. Collecting is never going to be the same after this big flood of repro carts on the market. I mean, it's like now you have to carry around a 3.8mm security bits to look at ROMs and a loupe to make sure labels were offset printed just go to the flea market. It's not like selling repros is altruistic. People do it to make money, but in doing so, it hurts a market that people have been enjoying for a long time.

Why not use that interest and skill to create something that adds to the market and promotes homebrew?

Again, just making sure I was perfectly clear, I have straight out refused to pirate games. I was asking more about the non existent games such as homebrews and rom hacks creating completely different games (example like Zelda GoW and PW).

Sorry, I didn't mean to insinuate that you did. All of the games you mentioned are distinct from any official US games. I was speaking on the overall topic of the ethical matters of repros, definitely not you specifically.

Did you mention at one point that you have a games store?

I work at a game store yeah. I told my store manager about the games I have made and got him into the retro scene as well. He has asked me to make him a few games for him and insisted that SNES games are now "abandonware" and I could legally distribute these games. I kind of felt that he was mistaken and tried doing some research to no avail. No information out there seemed to support his claim. I figured asking the site since people here deal with these type of games on daily basis.

At least in terms of games that were officially released, I feel like selling them hurts everybody in the market except for the person selling them. If somebody wants to play ROMs I'd rather see them buy a Powerpak or Everdrive and support someone making a new contribution.

Legal Disclaimer: Please only use a Powerpak or Everdrive to play ROMs of which you own a licensed copy or games which are free-license.

LOL nooooope. Copyright does not expire just because you're not currently selling something.

Copyright expires on a fixed timeline, whether or not you're still trying to make money off it. In the case of games, it's usually 95 years from the publishing date. So, for an game made in 1990, its copyright will expire in 2085.

The exception is that an author can wilfully place it in the public domain, or otherwise place it under a free public license (e.g. creative commons). In these cases copyright still persists, and the original author does own the work still, but they've given you the right to make copies of it.

Again, largely academic, because these laws aren't enforced very well at all, but from a legal perspective, no, copyright doesn't work like squatter's rights. Abandonware is not a distinction that affects the legality of copyright.

Is there some rule against perpetuities that prohibits taking an order that won't be delivered for several decades? If not, "I can make this game for you, but it'll take about 70 years to ship it to your grandchildren. I can offer express shipping for 10 billion dollars.[1]"


[1] Half of Nintendo's market capitalization according to NTDOY on Yahoo! Finance

While some older games might fall under the umbrella of abandonware, Nintendo games most certainly do not. First of all, the original copyrights have not expired, and second, they have the Wii(U)/3DS Virtual Console, which shows very clearly that they have not abandoned those libraries (even if a specific title has not been released as VC). ROM hacks would likewise be covered by copyright because they are considered derivative works, which are governed under the copyright of the original work (i.e. the original game). So Zelda GoW is still considered copyright property of Nintendo because it is a derivative work of aLttP. Now, the GoW authors can also claim copyright on their own work on that ROM hack, but that does not supersede or invalidate Nintendo's copyright (which is why ROM hacks can be C&D'd for copyright/trademark infringement, like Crimson Echoes was). So if you are worried about copyright ramifications, then for all intents and purposes treat ROM hacks, ports, and (re)translations the same as OEM releases.

A ROM hack is simply a work with two copyright holders instead of just one. To be able to use it, legally, you need the permission of both owners. (The hack author, and the original game's owner.)

You shouldn't have mentioned this to a store manager. His eyes probably lit up with dollar symbols and thinks he's now going to ride you into retirement.

exactly.

Don't worry guys I was born at night but not last night. Unless I can be provided documentation that proves I can legally distribute carts (which we have definitely already said many many MANY times already that it cannot be) it won't be happening.

Oh we're not questioning your scruples, just concerned that your manager is now going to apply pressure and make your job harder if you're not willing to 'play ball' so to speak.

Is he willing to do NES too, or only Super NES? Because if NES, then he can play a different kind of "ball".