> That might protect their direct distribution mechanism, but it doesn't change the far bigger bugbear, which is Intellectual Property. Almost every mod or ROM hack makes use of the original IP its applied to, in order to market itself. A Kaizo Mario romhack for example will kinda inherently use the Mario IP to get people interested. IP that is owned by, in this case, Nintendo.
That's not how any of that works though, otherwise you couldn't even write an article about Nintendo themselves without their approval.
Romhacks do not distribute any of the original content but are distributed with patches anyways.
> Game companies haven't sued mostly because whenever it happens in a legal gray area (which is where romhacks and mods are - and a legal gray area is illegal if you don't want to retain a lawyer), they ended up getting blasted by their competitors (who often already do the same thing) in court.
They don't sue because they know they will lose basically and losing would create a precedent.
> I wasn't talking about SNES romhacks either. Pretty much any system from the turn of the millennium onwards (which is the majority of systems nowadays) uses something comparable to a TPM, which means breaking them is needed and therefore, it's illegal.
Depends where, in the US for sure, in the EU you have interoperability exceptions which means breaking up any kind of DRM preventing interoperability (so pretty much all of them by definition) is legal.
You don't need to break any protections to dump most the old system games anyways either so that doesn't apply for old games even in the US.
I've been watching this since 2000 and I'm still unaware of any ruling that addresses this, even tangentially. I have never seen the law address the act of taking content from a major company and adding in content from a third party, despite the popularity of the practice.
"They don't sue because they know they will lose basically and losing would create a precedent."
I disagree completely that they would obviously lose. I think you're applying some combination of logic and wishful thinking to a situation where neither apply. The only logical conclusion I can come to about this situation over the past nearly 25 years is that they haven't codified anything because the current murkiness suits them just fine. There has been plenty of time to push a law through Congress that reifies that you're not allowed to make any modifications, but why bother with that expense when they can pretty much harass anyone they like at any time about it right now. What third-party mod provider has the wherewithal and desire to go toe-to-toe with a multinational behemoth so they can distribute their alternate Mario Kart courses or something? A C&D shuts down any sane person now, and a DMCA report takes out the vast majority of the rest. There's not a lot of need for them to established a precedent, and establishing a court precedent on this matter has been complicated by the inability and/or disinterest of anyone on the receiving end to take this through multiple levels of court, all the while incurring personal risk if they lose and only highly socialized benefits if they win (as they will most assuredly still be deeply into the net negative both in terms of money and stress). It's easy to wish someone else would take them up to the Supreme Court and establish that it's perfectly legal to mod games, to distribute the mods, and the game companies aren't allowed to prevent it, but the list of people willing to do it themselves has been pretty short.
Is it a derivative work of a book to says "Given an english copy of 'The Da Vinci Code' replace all occurrences of the word 'Jesus' with 'Dave'. In the current 20th printing of the english language version of the book you will find these on pages 1,4,6,..."
It is not. Telling someone how to run a process on a work to transform it is not breaching copyright in any way. If the person how transforms the work then distributes it, they will have a problem. But the person who told them how to transform it would not.
I think you are mixing up copyright and trademark laws. There's no copyright issue here as long as you don't publish content owned by Nintendo (which is the case of all romhacks I know of), Trademark can be still violated depending on the case.
There technically is a problem for the creator of the derived content. It is not quite as clear if distributors have any liability though.
Copyright in the US includes exclusive right to prepare derivative works. Just preparing, even if not distributed, without permission is a copyright violation.
A meaningful romhack is pretty obviously a derivative work. Even if one could convince a jury that the patch file itself was not, it would not matter, as the author obviously created the patched work first, in order to create the patch file.
Now, this prohibiting of non-copying of production of derivitive works is probably a mistake. It would be far more sensible to allow such creations, but only if no new copy is made and only if other exclusive rights (like public performance) are not used with respect to the derived work. But the law as written would certainly seem to prohibit romhacks.
The courts have been fairly inconsistent in rulings about derivatives that have not actually copied the work or its elements. There having been rulings that cutting pages out of a book and mounting them in ceramic tiles or even picture frames are infringing. (And other rulings that essentially identical cases are not infringing). Making baby bedding with purchased fabric with a copyrighted design is fine. Installing an alternate circuit board for a video game that speeds up gameplay is no good (Midway v. Artic), but an external device that does the same thing is fine (Galoob v. Nintendo).
The main reason Nintendo of America seldom goes after people who make or distribute romhacks as patch files is not because they can't.I strongly suspect it is a mixture of it not being sufficiently clear cut that they would win (and they don't want the precedent if they lose).
Its also possible that there is some other reason. Perhaps NCL is reluctant to let NoA do that for some reason. (Which would seem weird, as if anything NCL's mindset would be very strongly opposed to ROM hacks.) But more likely it is the other way around. NCL would probably like NoA to go after such sites, but NoA is probably more reluctant to do so.
Nintendo of America certainly knows about sites like SMW Central, romhacking.net, etc. Those site do get ocassional visits from NoA ip addresses. NoA have to know they could most likely shut them down with a single threatening letter, especially since they are making no money (not even running ads). But they don't.
NoA seems actively reluctant to go after people who are not distributing raw roms (a.k.a. piracy), and are not making money, unless the project becomes really high profile (since it could cause marketplace confusion, trademark dilution, etc), or the project is likely to be confusing in light of something they are working on (See AM2R vs the 3DS remake).
All the nonsense they have pulled with Streamers and YouTubers stem in part from the fact that those people do make money from using Nintendo content. The stuff they have pull with tournaments stems at least in part from tounament sponsors finally benefitting from running them. Etc.
That's not how any of that works though, otherwise you couldn't even write an article about Nintendo themselves without their approval.
Romhacks do not distribute any of the original content but are distributed with patches anyways.
> Game companies haven't sued mostly because whenever it happens in a legal gray area (which is where romhacks and mods are - and a legal gray area is illegal if you don't want to retain a lawyer), they ended up getting blasted by their competitors (who often already do the same thing) in court.
They don't sue because they know they will lose basically and losing would create a precedent.
> I wasn't talking about SNES romhacks either. Pretty much any system from the turn of the millennium onwards (which is the majority of systems nowadays) uses something comparable to a TPM, which means breaking them is needed and therefore, it's illegal.
Depends where, in the US for sure, in the EU you have interoperability exceptions which means breaking up any kind of DRM preventing interoperability (so pretty much all of them by definition) is legal.
You don't need to break any protections to dump most the old system games anyways either so that doesn't apply for old games even in the US.