The difference is that you can still buy the MP3s and DVDs in a format that is playable on modern hardware.

Whilst with ROMs it may be that the original hardware is harder to get hold of. Not really the case with the N64 but with Arcade ROMs its a whole different ball game because some of the boards simply suicide if the battery runs out (without emulation or reverse engineering some of these games would already have been lost forever). Also with the Dreamcast and the Amiga CD32 there is a large hardware failure rate so whilst you may still be able to buy a device from eBay, you may not be able to in say 10 years time. Then there are games on magnetic media that simply deteriorate with time. I've bought boxes of thousands of Amiga and Atari disks in the past where only a few dozen still work.

Certainly, I'm not saying that I agree with the existing laws. I don't - they need to be vastly overhauled. I'm only stating my non-lawyer understanding of what the laws currently are, not what I want them to be. The DMCA took away some rights we used to have, to try to accommodate the new technology we have, but IMO overshot it.

These statements are great for in court arguing for changes to the law, but feel like flimsy excuses for when individuals use it as a rational just to entertain themselves. "I'm, um, uh, preserving culture! Yeah! I'll go with that.".

Most arguments in favor of piracy just seem like excuses to rationalize doing what we want, ("I wouldn't have bought it anyway","They make enough money", "They charge too much", "They owe me for X or Y", "I'm just testing to see if it works on my device", "I don't even know if I'll like the game", "They're scumbags of a company and I don't want to support them", "It's not harming anyone. Well, not any human. Well, not harming them too much anyway.", "The law is corrupt", "We need to stand up for the public's rights.", "It's not available in my region", "It's out of print", "There's no way I can acquire a legitimate copy - I would if I could", "They're getting free advertisement anway", "Their monetization method stinks", "and besides... if I don't do this, it could be lost forever! I'm preserving history!").

I think it just boils down to, "I'm going to do whatever I want, and how dare you tell me it's wrong!". The rest is mostly just self-justification/rationalization of what was going to be done regardless - either after the fact or before-hand to work ourselves up to it. People want each other to turn a blind eye to "slightly" wrong behavior so they don't feel bad for doing it, they want to be joined in that behavior so they feel okay about it, and even want to be patted on the back and told that behavior is not only acceptable, but heroic. But self-indulgence is not heroism, no matter how we dress it up.

If we're arguing for changes in the law, then these statements make sense. But if we're talking motives of individuals, then we need to first raze the potemkin villages.

Some of these I sympathize with - the "I already own it, why should I have to get it again for a different console?", "It's out of print or only on ebay for outrageous sums of money", "It was never brought to my region". But I try to understand in my mind what reasoning is just excuses I'm using to get what I actually want, and which reasoning is actually an ideological stance. Obviously I don't know other people's motives, but it's extra hard for me to believe it's ideological stances if they're just using it to play videogames.

In response to your comment about archiving, the Internet Archive (regular humans like ourselves) argued for and won additional exemptions to the DMCA (as of 2010, it's now a permanent exemption). This benefits legitimate archivers.

You are allowed to circumvent DRM and encryptions and such if you are doing it on:

• "Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete."
• "Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access."

So that would most likely cover SNES and NES cartridges (and your Amiga/Atari stuff), and probably cover N64 cartridges as well.

It still does not cover downloading ROMs. Only bypassing the DRM if the format is "obsolete" and "require the original hardware as a condition of access". This is a DMCA exemption - downloading or copying ROMs other people have bypassed is still infringing copyright.

I had forgotten about these exemptions. In that case, my earlier statement is wrong:

"If you harvest your own ROMs, and in doing so break encryption (even simple encryption), it's 100% illegal."

It should be:

"If you harvest your own ROMs, and in doing so break encryption (even simple encryption), it's illegal, unless they are 'distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.'"

There are also legit copyright exemptions for educational or research purposes (including "private study"), which may come in handy for game designers. This includes some exemptions for duplication (which might include downloading ROMs). But I don't think we can just pretend all of our game playing is "research" - there's a set of factors that need to be weighed for 'research' to count as 'fair use'.

Still, the exemption for obsolete formats is a big step forward, as individuals, because it gives us back the right to format-shift for private use our older games from aging hardware.

We still have to do the format-shifting ourselves. Downloading a ROM of a game we already own is still infringement, as far as I can tell - but I'd love to be proven otherwise!

(my desire to play my N64 games on computers trumps my desire to always win arguments )

I wasn't trying to make the point of it being legal or not just that it is very unlikely that you will get into much trouble downloading rom. Also that in Europe at least the big companies have stopped going after individuals for downloading and instead are going after the sites that make the media available. And also forcing ISPs to block access to sites where they are unable to prosecute the owner due to international jurisdiction.
For example today it was announced on the BBC that "The Publishers Association" have forced Google to remove 1.7 million links to pirated ebooks.

Oh yes, definitely. You're 99.99999% likely to not get sued. Though you're just slightly more likely to get sued if you upload ROMs - as @frob pointed out, they tend to target the uploaders more, but even then they can't get them all.

It seems clear to me that these two courts think that both uploading and downloading constitutes infringement of copyright, though in different ways.

No, read them again, and in full context.

The Napster case was about the company engaging in infringement and also facilitating infringement. The users were not the subject of the lawsuit. The court covered that many times, that the law "does not cover the downloading of MP3 files". The ruling is clear that it was Naptser who as distributing the files. Read the rest of the paragraph, not just the single sentence, and it becomes a little more clear. When users downloaded the file Napster was violating the rights of distribution.

The Sega v Maphia case your quote covers quite enough for it to be clear, but you bolded the wrong parts. He solicited others to upload -- to distribute to him, hence the "contributory infringement" charge -- and also he "allowed subsequent distribution of the games by user downloads" -- which constituted direct infringement. There were other charges of trademark infringement (because he was distributing products with a trademark but not authorized to do so), false designation of origin, and unfair competition, all of these because he was distributing the files. Again it was Chad Sherman who was running the board and distributing the game images, not the users of the board, who were sued.

The quotes from the prosecution has lots of statements about users downloading files, the rulings are clear that it is the one distributing the files when the users requested a download, not the one receiving the files when the users requested a download, who are the ones liable.

In the US and probably other places, the particulars of emulation legallity usually come down to copyright firmware that's necessary to boot and run the software, sometimes also embedded trademarks in the boot process, sometimes also essential algorithms implemented in hardware or firmware might be patented. Many places are less strict than the US, and some places don't enforce what laws they have on the books (even in the US, enforcement is pretty lax).

As for modifying actual hardware you own to continue doing its intended purpose, but in a different form-factor, you're 100% safe (As far as I know, and I am not a lawyer) if your modified device runs the software from its original physical format (e.g. carts or optical disks). If you format-shift the software to a new media (e.g. loading dreamcast ISOs from an SD-card) then you get into a grey area -- though the courts have generally held that format-shifting is legitimate as long as you retain the original media and have the right to use it. Again, that's in the US. In other places when you buy software on an optical disc, for instance, their courts hold that you don't just own the disc and a liscense, but that you "own the bits" and are free to do as you please with them.

As for OpenPandora or other such devices, they themselves are perfectly legal, but you might be using them to do illegal things. For example, playing a ROM of a game you don't yourself own is pretty clearly illegal, or using an emulator for a system that requires firmware to boot (but you don't own said system yourself) is likewise pretty clearly illegal. (again, all US-centric, and I Am Not A Lawyer).

The court covered that many times, that the law "does not cover the downloading of MP3 files".

They said a specific act passed by congress doesn't cover downloading MP3 files.

"The United States Postal Service does not issue driver's licenses" is not the same as "The United States Government does not issue driver's license."
The first statement is true, the USPS does not issue driver's licenses. The second statement is false, the United States Government (via the Department of Motor Vehicles), does issue driver's license.

Here's what the court said: (emphasis mine)

[71] The district court rejected Napster’s argument, stating that the Audio Home Recording Act is “irrelevant” to the action because: (1) plaintiffs did not bring claims under the Audio Home Recording Act; and (2) the Audio Home Recording Act does not cover the downloading of MP3 files. Napster, 114 F. Supp. 2d at 916 n.19.

[72] We agree with the district court that the Audio Home Recording Act does not cover the downloading of MP3 files to computer hard drives. First, “nder the plain meaning of the Act’s definition of digital audio recording devices, computers (and their hard drives) are not digital audio recording devices because their ‘primary purpose’ is not to make digital audio copied recordings.” Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1078 (9th Cir. 1999). Second, notwithstanding Napster’s claim that computers are “digital audio recording devices,” computers do not make “digital music recordings” as defined by the Audio Home Recording Act. Id. at 1077 (citing S. Rep. 102-294) (“There are simply no grounds in either the plain language of the definition or in the legislative history for interpreting the term ‘digital musical recording’ to include songs fixed on computer hard drives.”).

In the court's statement, the (two) times they used that sentence, they specifically used a specific act's name.

"The United States Postal Service does not issue driver's licenses" is not the same as "The United States Government as a whole does not issue driver's license."

"The Audio Home Recording Act does not cover the downloading of MP3 files" is not the same as "the law [as a whole] does not cover the downloading of MP3 files"

Further, by "cover the download of MP3 files", they actually meant the opposite of what you are saying. If that act did cover the downloading of MP3 files, it'd mean Napster wasn't liable for users downloading the files, in the same way Sony wasn't liable for the public using home video recorders to record TV.

And, even if that specific act did cover mp3 downloads, the "covering' means Napster's butt is covered, not that the downloading itself is non-infringing. Though IF it did cover mp3 downloads (which it is very clear it doesn't), it would protect the Napster users from lawsuits, though not make their downloads legitimate. "you can't be sued in X situation, even if it is clear you are infringing" - It's a rather weird slice of law.

(Incase it wasn't clear, the Audio Home Recording Act is a congress-passed law, and is not the document itself we've been reading, which is a lawsuit titled "A&M RECORDS, Inc. v. NAPSTER, INC". Different branch of the government - the AHRA act is from the Legislature, and this lawsuit is from the Judicial System. Napster claimed they were covered by the AHRA act passed by Congress, and the court (both the district court and, on appeal, the circuit court) said "No you're not, the AHRA doesn't cover downloaded MP3s". They weren't saying 'This lawsuit doesn't cover downloaded MP3s').

The ruling is clear that it was Napster who as distributing the files. Read the rest of the paragraph, not just the single sentence, and it becomes a little more clear. When users downloaded the file Napster was violating the rights of distribution.

When users downloaded the file, the users were violating the rights of reproduction, and Napster was responsible for contributory infringement.
When users share their files with others, the sharing users are violating the rights of distribution, and Napster was responsible for contributory infringement of that as well.

The language is very clear about that. It can't possibly be any clearer:

"We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders’ exclusive rights: the rights of reproduction, § 106(1); and distribution, § 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights."

And later on:
"The district court determined that plaintiffs in all likelihood would establish Napster’s liability as a contributory infringer. The district court did not err; Napster, by its conduct, knowingly encourages and assists the infringement of plaintiffs’ copyrights."

Even Napster agreed on that.
"Napster asserts an affirmative defense to the charge that its users directly infringe plaintiffs’ copyrighted musical compositions and sound recordings."

Napster's defense was that downloading the music was "fair use". The court rejected that, saying that the users downloading MP3s was not covered by fair use.
Napster's three claims of fair use were:
- Users "sampling" the music to see if they like it before buying it. Court response: Nope, that's not fair use.
- Users who already own the music using Napster to access music they already own in CD form. Court response: Nope, that's not fair use.
- Users downloading music from artists that gave permission for it to be on Napster. Court response + RIAA response: We have no problem with that.

"There was a preliminary determination here that Napster users are not fair users. Uses of copyrighted material that are not fair uses are rightfully enjoined."

Napster is responsible for helping others (the users) infringe. Yes, by the users uploading, but also by the users downloading.

Yes, this lawsuit is against Napster. But the ruling states clearly the opinions of the judges that the downloading was also infringement.

Downloading, at its core, is copying. It may be non-infringing copying, or it may be infringing copying. The district court said, 'in our opinion, the downloading is infringing'. Upon appeal, the circuit court said, 'In our opinion, we agree'.

Further, in a later document:

"When Congress has chosen to make particular uses of copyrighted works noninfringing, it traditionally has said so expressly. For example, the fair use provision of the Copyright Act provides that "the fair use of a copyrighted work * * * is not an infringement of copyright." 17 U.S.C. § 107 (emphasis added). Congress has spoken with equal clarity regarding other uses. See, e.g., id. § 108 ("it is not an infringement of copyright" for library or archive to reproduce single copies of works under specified conditions); id. § 110 (specified performances and displays of works "are not infringements of copyright"); id. § 117 ("it is not an infringement" for owner of copy of computer program to make an additional copy for, inter alia, archival purposes).""

Congress hasn't come out with an express statement that downloading is non-infringing. Since downloading at its core is copying, it is infringing unless Congress expressly states otherwise. (as an aside, there's the permission to copy (stuff you already own) for archiving. I remembered one existed in the USA, but I was too lazy to look it up ).

In this related lawsuit - while it is once again directed at the filesharing service (in this case, Grokster) and not the users, the accusation is that it encouraged and enabled "infringing downloads". The downloads themselves are a violation of copyright law.

There may be some other law somewhere that I'm not aware of, where the public is given explicit permission to download files. If such a law exists, that'd be worth knowing about. But unless explicit permission is given, there is implicit statements that it's not allowed, and it is blanket banned by general copyright law.

Is open pandora legal if I own the game but download a rom from a rom site?

Why can't I play n64 games on my pc if I own the game? I am willing to pay for the game if it is made on future consoles. I can even buy 2 copies of the game if that will allow me to play on pc. What is nintendo losing that it has to make emulators and roms illegal?

Is open pandora legal if I own the game but download a rom from a rom site?

Laws vary from country to country, so it's impossible to answer without knowing what country you live in.

What is nintendo losing that it has to make emulators and roms illegal?

For starters, Nintendo cannot make anything illegal, they're a company, not a government. They do stand to lose potential sales of course, if people are pirating ROMs to use with free emulators. You might be willing to buy a copy of the game and then use a ROM, but not everyone else will be.

Nintendo also pretty obviously do not want their games on PCs. They have more than enough resources to port their games to PC, and the fact that they haven't means they don't want to.

Is open pandora legal if I own the game but download a rom from a rom site?

According to the reasoning explained in my previous posts, in my understanding it's illegal in the current state of copyright law in the USA. You won't be caught, but it's not legal (civil law, not criminal law).

Why can't I play n64 games on my pc if I own the game?

You can if:
A) You use the cartridge you purchased, not a different identical copy that you didn't purchase of the same game. Even if you purchase one copy, downloading another copy isn't legal.
B) The emulator you are using doesn't violate any copyrights or infringe any patents. Many console emulators do infringe.

Both of these have to be true.

I'd love very much for the copyright laws in the USA to get changed to be more in favor of consumers. Currently, however, this is not the case.

I am willing to pay for the game if it is made on future consoles. I can even buy 2 copies of the game if that will allow me to play on pc.

Yes, most of us would be willing to pay if we get to play our favorite games on the platforms of our choice. It'd be nice if copyright law permits this, but (mostly) it doesn't.

What is nintendo losing that it has to make emulators and roms illegal?

Suppose there's four games I want to play on the WiiU: the new StarFox, the new Zelda, the new Mario Kart, and a new Metroid Prime (if they made one).

If I could buy those four games and play them on my PC without buying a WiiU, Nintendo loses the sale of the WiiU (costing them ~$20 in lost profits per user).

Further, and even more costly, if I'm buying games and playing them without them being on the WiiU, then the market share of the WiiU would be very tiny, and 3rd party developers would make less games for the WiiU, and I'd be buying their games to play on the PC or other platforms instead of the WiiU. If those 3rd party games aren't on the WiiU, Nintendo doesn't get a cut of those games' sales (costing them ~$75 in lost profits per user, if an average user buys five 3rd party games).

Nintendo suffers great financial loss if people could play Nintendo games legally on the PC. We're talking hundreds of millions of dollars of lost profits.

Basically, the more people who buy 3rd party games for Nintendo's platforms, the more money Nintendo makes from 3rd party developers. If very few users are playing on Nintendo's platform, Nintendo doesn't make money from the 3rd party developers. This is why Nintendo releases very few games for iOS and PC.

Ofcourse the WiiU is doing pretty badly anyway, and there isn't much 3rd party development going on, but that's for unrelated business reasons. The same reasoning applies to Microsoft and Sony consoles as well. Now, tossing in older consoles that aren't from the two most recent generations changes the economics somewhat, but to what extend, it'd be hard to calculate.