VirtualNES.com Copyright Information
Emulation Collective goes to great lengths to ensure the full legality of the services we provide. Through hundreds of hours of legal research, we believe, in good faith, that we have crafted a website that is fully compliant with all applicable laws; certain organizations with a history of being aggressively litigious would beg to differ. In an effort to achieve transparency, Emulation Collective provides the following information to answer your questions about our legal process and bearings.
Emulation Collective Copyright Policy Summary
VirtualNES.com uses the iConsole Web Player software package to act as an emulator of the Nintendo Entertainment System and Nintendo Family Computer hardware, designed with the specific purpose of allowing fans all around the world to play vintage video games whilst staying within the boundaries of applicable laws. iConsole is expressly designed to not assist in the download of copyrighted files, but rather stream them when needed. The innermost workings of this technology allow only the necessary data to be placed in the temporary storage of a computer while in use, and destroy the files in question when the user has finished playing a game.
Due to substantial legal pressure, the staff of Emulation Collective have gone to extensive lengths to operate within United States law, while still providing a quality product to our users. All of the games on VirtualNES.com that were commercially published within North America, and/or are originally sanctioned products of Nintendo Co. Ltd. (or its subsidiaries), are backups from original cartridge copies stored at the Emulation Collective offices, in accordance with 17 U.S.C. § 108 and 17 U.S.C. § 1201 (a)(1), and Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
Products made outside of those limitations are not known to have a copyright recognized by Title 17 of the United States Code. Special cases are made in circumstances, including but not limited to cases in which the game was designed but never saw publication. Details of handling policy for these cases are covered below.
Emulation Collective Legal Sevenfold Path
In an effort to reach full legal enlightenment, Emulation Collective governs our practices by these laws. It is by this path that we are able to provide a legal solution to the archival and playback of vintage video games.
Step 1: Fair Use
Emulation Collective uses methods of archival and transfer that can be easily interpreted as being protected under the doctrine of fair use, as codified at 17 U.S.C. § 107.
- The purpose and character of the use, such as if the
works are used for commercial or nonprofit purposes.
- Our websites are free of banner, popup, or interstitial advertisements and require no membership.
- The nature of the copyrighted work in question.
- The game cartridges available on our websites have been out of the retail market for a minimum of 10 years.
- The amount and substantiality of the portion used in
relation to the work as a whole.
- The complete, unedited game cartridge is available for use.
- The effect of the use upon the potential market for, or
value of, the copyrighted work.
- The video games in question are vastly technologically inferior to modern video games.
Step 2: 17 U.S.C. § 108
17 U.S.C. § 108 allows archives to produce (and distribute) copies of copyrighted works in the event that it does not result in commercial advantage, that the collection of the archive is open to the public, and that the reproduction of the copyrighted work retains the notice of copyright of the holder of the copyrighted work. This right extends to unpublished works, provided that the archive has an original copy of the work in question.
Step 3: 17 U.S.C. § 117
17 U.S.C. § 117 allows the owner of a copy of a computer program to make a copy provided that the copy is created as an essential step in the utilization of the computer program, and the copy is for archival purposes only.
Step 4: Sony v. Universal Ruling
The ruling of Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), confirmed that the creation of complete backup copies made for the purposes of shifting time or format for noncommercial purposes is fair use. As described in more detail above, Emulation Collective is not run as a for-profit operation, it is akin to a library or museum, a place where video games are preserved not only as an entertainment medium, but cultural artifacts.
Step 5: Policy for Unreleased Games
Emulation Collective provides access to unreleased video games that have been copied and published elsewhere on the Web on our websites, as it falls within our mission of archiving our digital past. Our policy is to not host the games if it results in unfair commercial advantage. The policy for determining such is as follows.
An unreleased game that is completed and released for the original platform, or a reasonable facsimile thereof (such as emulation), will not be provided on websites run by Emulation Collective.
For example, if Nintendo released Earthbound for the NES on the Virtual Console, or made a production run of Earthbound cartridges for the NES, Emulation Collective will not have Earthbound on our websites, until at least 10 years after it is no longer commercially available.
An unreleased game that is revived as an enhanced remake for a new platform will be available on websites run by Emulation Collective.
For example, if Nintendo released a collection of Earthbound games (collectively known as Mother 1, 2, and 3) for the Nintendo DS, Emulation Collective would still have the unreleased Earthbound game on the NES, as this release would be an enhanced remake, not the original version programmed for the NES.
Step 6: Policy for Prototype Games
Emulation Collective provides access to prototype games that have been copied and published elsewhere on the Web on our websites, as it falls within our mission of archiving our digital past. Prototype games are considered "Beta" versions of games that did receive a commercial release.
For example, a prototype of Pokémon Gold Version would only be available on Emulation Collective websites if we have the published edition of Pokémon Gold Version.
Step 7: Policy for Unlicensed Games
Certain games, the bulk of which were released in Asia (but outside of Japan), and are not licensed products of Nintendo Co., Ltd. (or its subsidiaries) do not have a notice of copyright or proper identification of rights holders, or, ascertaining the identity of such is not possible. In certain other cases, these games may use characters that the company responsible for publishing does not have the rights to use. In these situations, Emulation Collective may provide the games in question on our websites.
If a rights holder was to provide proof of identification, copyright and status of product, these games would be handled by the same standard policy of library usage as commercially released games of known sources.