Legal brainstorming

After talking to a bunch of law students recently, I am becoming more and more afraid that Big N and Big S might go ahead and sue the hell out of me, if I ever were to make a larger volume of these devices. After all, the Retrode might actually cause people to legally re-use their old games instead of having to buy new copies for virtual consoles, which translates to a potential disprofit for said parties.

In their favor:

  • The Retrode is a device that could potentially be used to pirate copyrighted software. But so are pencils and paper.
  • The cartridge enclosure might be considered a form of copy protection, which can be “circumvented” by the Retrode. Hence, if we were talking about audio data, it would fall under the Audio Home Recording Act which led to the prohibition of DAT recorders without SCMS. Is there any analogous legislation concerning computer software?

In our favor:

  • We’re 20 years late, and all damage that could possibly be done has already been done. There are tons of pirated ROMs available everywhere.
  • For the species who tends to use such devices in legally questionable ways, the Retrode has nothing to offer which they wouldn’t get from the tons of pirated ROMs out there anyway.
  • It’s read-only. Using the Retrode alone, you cannot even duplicate game cartridges.
  • The data on the cartridges is not copy protected. After all, they’re only standard memory chips on a circuit board. No encryption or anything.
  • When you buy a piece of software, you acquire a permanent right to use it, which you may enforce by making an archive copy. At least that’s what Germany and the US say. The Retrode allows you to play the games you purchased, even when your original console has gone to meet its maker.

Kind of indifferent:

  • In Germany, tying the right to use a piece of software to a specific hardware device has been tried with varying success. Reselling OEM versions of Windows is perfectly alright (sorry Microsoft), but you’re not allowed to install OS X on a PC, unless you bought the boxed version, which has the EULA inside the package. Has anyone ever seen a SNES or Genesis game that came with a EULA? If so, please report.

You see, there’s a lot of things that need to be considered. We wouldn’t want the project to be killed by a multi-billion dollar company and their lawyers, would we now? If you have profound knowledge of US copyright legislation, I would appreciate if you could get in touch with me. Of course, everybody is invited to comment. Open questions:

  • Is there anything fundamentally different to the Retrode compared to the Bung and Lik Sang things they sued out of production?
  • Is there an embarrassingly obviously legal use for the Retrode?
  • Would the situation change
    1. if no brand names would ever appear in its advertising?
    2. if the device were labeled as a generic reader/writer for nonvolatile memory elements? After all, it could be used as the first USB-based EEPROM/flash programmer ever that doesn’t require drivers or special software other than what comes with any OS.
    3. if it were distributed defunct, e. g. with the end user having to install the firmware?
  • Does the volume matter? I don’t now how many Flash Advance Linkers or Doctor V64s were sold, but I hardly think the Retrode is ever going to hit the 1,000 mark…

On the other hand, all of the daunting example lawsuits occurred in countries far, far away from here. I still have a high opinion of the German legal system that is not exclusively controlled by those who can afford. The worst thing I could imagine is that I try to send devices to the US, and Big N sues me there.


9 comments to Legal brainstorming

  • dave

    Anyone ever hear of Pier Solar? It’s a game being developed for the Sega Master System.. 20 years later.. the preorders are $35 and it gets your cartridge and audio disc + goodies.. getting sidetracked.

    How can they legally produce an unlicensed game for one of Sega’s old systems? If they can make games for a defunct system, I would hope that you would be allowed to make devices for the purpose of using the games. (knowing what we do about system vs cartridge lifespans)

    It’s probably very naive of me to feel that way, but still.. I just don’t see you getting in any hot water over lil’ol’ Retrode. If anything, I’d imagine it will drum up attention for old games, rather than detract from their sales.

    • dave

      my brother points out to me that I said “master system” but I meant genesis / mega drive.. I do that all the effin time..

  • MetaKirbyKnight

    The cartridge could be considered copy-protection. But it is legal to circumvent, under the Fair Use Act, it if it is an obsolete technology, as defined by it’s commercial availability. SNES carts aren’t commercially available, are they?

    So, that really doesn’t count in their favor.

  • Mitch

    Here is some light reading on the subject.

    The Question of ROMs by Chuck Cochems is one of the better articles I have read. The idea comes from the betamax case.

    My idea comes from CDs. We could easily make a copy of our CDs into mp3 format for our own “personal use.” We would be protected under “fair use.” We still can’t distribute those to others. Now this does hurt the music company in one way. We don’t have to now buy the mp3s to put them on our ipod. Similar to argument that if we make our own roms we wouldn’t have to buy them from nintendo for the virtual console. Either way creating our own roms is essentially “space shifting,” and should be protected under “fair use.” The problem is that the devices made to do this (cart readers) have been ruled illegal, because they “allow” for copyright infringement. Essentially since they could be used to do something illegal the devices themselves have been deemed illegal. First case was Atari vs JS&A. Every device since has met a similar fate. But lets jump back to our mp3 analogy. CD rippers are perfectly legal. In fact iTunes and Windows Media Player both allow you to rip your own CDs into mp3 format. See RIAA vs Diamond Multimedia. So you would simply have to convince a court that your device performs the same function as a CD ripper does, but for games. “The court has endorsed the point that it is entirely proper for consumers to make copies of digital recordings that they own or have acquired properly.” “Consumers are free to space-shift.” To further strengthen the point you could use the dingoo or the gp2x wiz as portable rom players as a justification for “space-shifting” of roms.

  • J. Evans Turner

    I owned the Doctor V64 and V64 Jr devices. I know that they could be used for piracy, but Bung’s claim that they could be used as cheap development hardware certainly has merit. There was plenty of N64 homebrew long before software emulators existed. Professional developers also used these devices. I remember some TV documentary that featured game development at Iguana Studios (creators of the Turok game franchise). I clearly saw a Dr V64 in use at their game development studio. I believe this was on the Discovery Channel a LONG time ago.

    The fundamental difference is that those devices attached to the game console and contained enough memory to simulate a game cartridge. ROM data could be loaded into the internal memory from a PC and played on the original console, long before software emulators existed. A user could download a game through the Internet or copy rented / borrowed games. You could archive them on your PC or put a few dozen onto a CD-R (fairly new technology at the time of the Dr V64), then play them back on the N64. This still offered a better experience than today’s buggy N64 software emulators. I still miss the resources on sites like Dextrose and BlackBag!

    A legitimate, useful function of your device is that it allows you to manage the battery-backed data that contains your saved progress / high scores / etc. When the cartridge battery goes dead, the data would be lost and could not be restored. Your device would allow the backup / restoration of this data…and does not infringe on copyright any more than the memory card / save data managers that come built-in with today’s game systems.

    Your device does not allow you to load copyrighted information onto a blank / writable cartridge, so it does not enable piracy like the devices from Bung. I don’t think you have anything to worry about.

    Your project does remind me of one of the best accessories I ever used. The N64 / USB “Adaptoid” worked as a standard HID-compliant USB came controller and didn’t require any software. An optional driver would enable an API that all N64 emulators supported. This allowed emulated games to use the I/O of the controller’s memory pak slot. Emulated games could fully support the Memory Pak, GB Pak, Rumble Pak, Bio Pak, microphone, mouse, dance mat, etc … just about ANY accessory that ever existed for N64!

    The Adaptoid also allowed the games to accurately read the position of the control stick. Any other USB adapter for game consoles converts the circular range of a thumb stick to a square range, which is then converted back to a circular range by the emulator…resulting in a loss of precision and some undesirable effects in some games. With the API, this problem was solved. It also supported force feedback for PC games. A specific button combination would set the Rumble back to vibrate and you could use the thumb stick to set the vibration level. Other button combinations allowed the functions of the D-Pad and thumb stuck to be swapped on-the-fly without exiting / reconfiguring a PC game.


  • Perhaps build some sort of DRM into the firmware. If you set it so that Windows refuses to copy the ROM image from the cartridge (I don’t know how feasible this is), then it can’t be argued that this device can do anything illegal; playing the games would be possible, but not copying them.

    Alternatively, and much more difficult, would be to not make it compatible with Windows Explorer (or any other OS filesystem) at all, and collaborate with emu makers for access to it only within that software. This is not a terribly feasible idea, but it pretty much 100% ensures that the device is legal, no gray area.

    • Phew. Thank you for these suggestions. However, both options would mean having to compromise one of the key design principles, namely unlimited compatibility to USB Mass Storage – and its beautiful universality regarding the host system and OS. I cannot think of any way of implementing what you call a “DRM”. If the emulator can read it, it can also be copied. Waiting for a zillion emu developers (most of who abandoned their projects a long time ago) to implement proprietary – yet standardized – reading and writing routines doesn’t sound like much fun either. And again, if the emulator can read it, someone will add a copying routine.

  • Aethix

    The major problem here is that if any big companies decide to go after you, you probably won’t have anywhere near the resources required to fight them off. The American legal system does not provide much protection against legal bullying.

    What I would do is try to find an obviously legal use for it. Nothing in the gray area, something of which the legality absolutely cannot be denied. (See the Wikipedia page for the Wizard V64 – in the legal battles Bung emphasized its use as a cheap development tool. Although Bung lost, Nintendo is not nearly as aggressive today, and I think the courts may be a little bit older and wiser in terms of technology.) If the device is capable of writing files to special writable SNES/Genesis/MD cartridges, that would be a good point to make. If you can think of any other obviously legal uses, be sure to take note of them in case you have to use them.