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Thread: A Legal Question on the Uses of Backups

  1. #1

    A Legal Question on the Uses of Backups

    Hello, first let me preface this by saying that this is a question about American copyright law. Also, this doesn't have so much to do with Wii hacking as much as the issue of making copies of games in general.

    Anyway, I've seen a lot of discussion about the legality of making backups of games you purchased legally, and the general consensus seems to be that it's alright as long as you own the game and are not trying to sell them.

    However, I was wondering whether or not it is legal to make and use backups for purposes which are still essentially personal use, but would require multiple copies of the original game. Say, for instance you're hosting a LAN party and you want to have several consoles running, would it be legal to make copies of the game for each console, since it's still intended for your uses (throwing a party), and are not profiting off it in any way?

    Along the same lines, would it be legal to host a tournament with multiple backup copies as long as you legally own an original copy of the software and wouldn't be making any money off the backups? What if a small fee was charged for entry into that tournament, or if a fee was charged, but the money didn't go to the person running the tournament who made the copies, but to the venue to pay for the space provided?

    Finally, say it were possible to set up a network drive and have a backup of the game on that drive which multiple consoles can access. Would it be legal to run multiple instances of the game off a single copy on the drive?

    So, these are just a few things I've been thinking about lately, I was hoping someone could shed a little light on them for me.

  2. #2
    Retired WiiHacks Staff
    Darkcide666's Avatar
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    You are right in the fact that you can legally make a copy of software you own for archival purposes but you can only transfer it if you are giving up all rights to said software. Straight from the US copyright law Chapter 1 Section 117 subsection (B):

    Lease, Sale, or Other Transfer of Additional Copy or Adaptation. Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

    Essentially the answer to your question is no it is not legal even if you are not making any type of profit. While it is legal to make multiple copies of your original software you can not distribute them in any way unless you are fully transferring the rights and the original copy over to a new owner.

  3. #3
    Thanks for the reply.

    That clears up a lot of the things I was wondering about, however, it gives me one more question as well. It becomes illegal due to the fact that the systems are owned by another owner, therefore the use of that copy on their system is a transfer of property meaning I can no longer use it on mine.

    However, what if I own multiple systems but only one copy of the game? In that case, it can't be considered transfer of property as both the game, the original and the copy, as well as all the hardware is mine.

    Even though no property is transferred, would be considered that this goes beyond archival purposes, and is therefore illegal, or could you say that as all the copies still belong to you, that you that the backups are legal as multiple copies are required to access certain functions of your software (such as console to console interactions).

    EDIT: Additionally, how would having multiple consoles running copies of the same game be considered different than say, having multiple computers or music players with a copy of the same song. Also, if use for archival is a requirement, couldn't that raise some questions regarding the legality and use of games off of USB loaders or flashcarts, which would seem the primary use is for convenience? And what does this mean for copyrighted software being used by multiple computers off a shared drive?
    Last edited by Pharrox; 09-09-2010 at 09:43 AM.

  4. #4
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    ganoderma's Avatar
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    First of all, I have no idea about the US law and how it works. Anyone with more knowledge please correct me if I'm wrong.

    What I understand is that you basically let your friends "give" the wii to you before the party and you "give" them back afterwards. Meaning you have ownership of the wii(s) during the party?

    What I think is this:
    The game was sold as a single copy to be used on a single console at the time.
    You can make a backup for archival purposes. Archival doesn't include using the game (either the original or the backup, most people just use the backup and 'archive' the original).
    If you use both copies (or more copies), logic seems to be that it isn't archival anymore.

    But like I said: I have no idea about the US law (or any law, actually :P not even the dutch law on this subject), so I could be completely wrong here. Though I think archival is a keyword in the post by Darkcile666 (unless the word archival wasn't taken from the law)
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  5. #5
    I don't actually play any games that have that capability, I've never hosted a LAN party and don't have any intentions too. Legal loopholes have always just been something that's somewhat interested me, so I figured I'd just get a few other's opinions.

    What you're saying here seems to be what make the most sense and is how I figure it is, however, I looked at the section Darkcide gave and it also includes that in addition to archival, a copy can be made if "that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner". I'm just not entirely sure what would be considered "an essential step in the utilization".

    Which once again raises the question on the legality of backups designed to make access easier such as flashcarts or USB loaders.

  6. #6
    Retired WiiHacks Staff
    Darkcide666's Avatar
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    Essentially one copy of the game equals one license to use said software (Unless otherwise stated). You can use your archive copy (whether digital or actual media) as your main copy to protect the original paid copy from damage so USB loaders are safe as long as you own the original. Even if you own multiple systems you are expected to only use it on one system at a time (unless otherwise stated). Laws like this are partially designed to keep people, corporations, and system builders from buying one copy of a license and distributing it to multiple systems. It's also where the DMCA and so forth come into play. On a small scale like you are talking about such as a LAN party it might not seem like that much in punitive damages to the proprietary owner but think of it on a large scale if say a corporation with 500-1000 PCs or more only bought one license for a piece of software like Windows and installed it on all of their PCs on the same principles you guys are talking about. "I own all of the systems it's installed on" doesn't quite hold up in court. But from a practical standpoint I wouldn't be worried about the partyvan appearing at your next LAN party and have never been to one without at least one person (Usually multiple people) playing a pirated version of whatever game. Not supporting piracy...Just stating facts.
    Last edited by Darkcide666; 09-09-2010 at 11:43 AM.


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