CompuServe Messages

Here is an excerpt from the January, 1994, CACM (in the highly recommended "Legally Speaking" column — that column tends to being rather long and technical, but explains the issues it addresses in all the detail most computer people are likely ever to need): "The fair use doctrine provides a flexible and adaptable way to balance the interests of copyright ownders and of the public so as to maintain adequate incentives to produce createive works while at the same time allowing the public to make reasonable uses of copyrighted materials." "Under US law, four factors are generally considered in judging whether a use of a copyrighted work is fair: the purpose of the defendants use (whether for commercial purposes, whether for purposes of news reporting, scholarship or the like or some less favored purpose); the nature of the copyrighted work (whether entertainments or factual works); the substantiality of the taking (judged qualitatively as well as quantitatively); and the harm or potential for harm to the market for the copyrighted work arising from the defendant's activities." One of the many cases this article cites is Nintendo v. Galoob. It appears to be paritcularly relevant to whether we can legally crack copy protection. I think that the issues are very similar and that a court would find in favor of cracking based on Galoob. "Nintendo charged Lewis Galoob Toys with contributory copyright infringement because Goloob's Game Genie allowed users to alter certain aspects of the play of Nintendo video games, such as increase the number of lives of a particular videogame character. The Game Genie accomplished these changes by intercepting certain signals from the Nintendo program for which it substituted other signals. Nintendo's theory was that Galoob provided consumers with a device knowing they would use it to alter the audiovisual sequences of the Nintendo games, thereby creating an unauthorized derivative work. Galoob argued fair use in defense." "…the court decided that… Galoob made only fair use of the Nintendo works. In line with Sony [another important fair use case involving Universal suing that VCRs were going to be used to illegally tape copyrighted works]a, the court ignored Galoob's obvious commercial purpose in marketing the Game Genie. The alleged infringers in Galoob were kids who used the Game Genie to alter the play of Nintendo game sin the privacy of their homes. The court, therefore, invoked the Sony presumption of fairness because consumers were making private and noncommercial uses of the allegedly contriutorily infringing device." "The court judged the alterations to Nintendo's games though use of the Game Genie to be lesser in quantity and quality than the copying in Sony which made this factor favor Galoob's fair use defense as well. In reliance on Sony, the court thrust the burden onto Nintendo to demonstrate some meaningful likelihood of harm arising from use of the Game Genie." "Nintendo did not meet this burden because it had no plans to market versions of its games containing alterations of the sort that the Game Genie produced. But the factor that most stongly swayed the court was the fact that kids could only use the Game Genie if they had already bought Nintendo games, which meant that Galoob's device did not displace sales of the Nintendo programs." — Dale L. Larson, Intangible Assets Manufacturing