I wouldn't count on it, it is still derivative work and I am sure the licences for the games forbid this. Some companies may let it slide, but Nintendo is known to be aggressive about their intellectual property.
And you will probably have a hard time arguing that it doesn't promote piracy. You can't get "ROMs" officially. You have to extract them from the cartridge with specialized equipment, or maybe in some other way, but it is not as simple as reading from a CD. It means that most people will simply get them from illegal sources. With an emulator, you can say it is for "homebrews", but if you recompile a commercial game, you can't use this argument.
I don't think that's right, I think it's essentially considered the same work under copyright law. Apparently compilation doesn't fulfil the criteria of derivative works.
A shrinkwrap license is not a real license. The game is copyrighted, and fair use applies.
And if you want to avoid the license just steal it from someone. You never agreed to a license, but you are still required to follow copyright. (I've obviously being a little sarcastic, but license agreements on software are meaningless, even if a company claims they have meaning.)
Nintendo hasn't been taking down any projects that can't work without a ROM input. They'll change that eventually, but for now they are not. You can't share a modified ROM but you can share binary patches.
> You can't get "ROMs" officially. You have to extract them from the cartridge with specialized equipment, or maybe in some other way, but it is not as simple as reading from a CD.
Nintendo has, in fact, sold the public ROMs before (and I don't just mean custom emulator executables wrapping ROM payloads that get delivered encrypted onto DRMed consoles.)
Specifically, I'm talking about the NES Classic and SNES Classic. These little boxes use multi-image emulators, rather than Nintendo's usual approach of a customized single-image emulator for each game. And the ROMs used by these systems are just sitting there as files on disk. The disk isn't encrypted, either; nor is the bootloader or kernel integrity-signed; or really anything like that. You don't need to "jailbreak" these things — they act like Android phones, where you can just reboot them into restore mode and plug them into a computer with a USB cable, and see a virtual disk. The "modding tools" for them just drop a new kernel with wi-fi support into their /boot partition! (And you don't even need to go that far to read the ROMs off the rootfs — any Linux PC will work to mount it.) So any DMCA "they used DRM, which means their intent was to license you X, not sell you X" arguments don't apply. They did nothing to stop people from extracting these ROMs.
By buying these systems, you're effectively buying "a box full of ROMs" directly from Nintendo (the IP rights-holder for said ROMs), at retail, as a "money for goods" transaction. So now, by the first-sale doctrine, they're your ROMs, and you can do with them as you please.
This is true as surely as buying a DVD box-set means you now own those DVDs, and can do with those as you please. (Part up and resell the DVDs individually? Sure, why not!)
Or — for perhaps a more interesting example — as surely as buying a stock images or sound-effects library on CD (even second-hand!) implicitly brings with it the IP rights to use those assets in derivative works you create. The primary-market purchaser didn't have to agree to any kind of license terms at point of sale? First-sale doctrine applies to that IP from then on! (Amusingly, Nintendo redistributed exactly such stock-image CD assets embedded into Mario 64 — so their lawyers are double-bound to agree that this particular interpretation of first-sale doctrine should pertain.)
The license also says “unless otherwise required by applicable law”, and applicable law here in the US is the DMCA, which says that you can make copies for the purposes of playing the game on different hardware [1]… so long as you don’t need to circumvent copy protection in order to do so. Since the system doesn’t have copy protection, the law permits you to do this even if the license does not.
This is the odd thing about the DMCA… rights holders can prevent you from doing something in their license, but then the law can override that by allowing you to said thing… unless there is any sort of copy protection involved, in which case the law doesnt override the license.
- [1] Here I’m interpreting this as “format shifting”, which has largely been considered fair use by the courts. It’s the reason Apple got away with selling the iPod with CD ripping software and told customers to rip their CD collections… since CD’s didn’t have copy protection, the DMCA provisions didn’t apply, and thus it was not explicitly illegal to copy your CD’s to your iPod. And the prevailing view was that copying your own CD to your own other device was fair use so long as you didn’t sell the copy or anything. I would wager that the ROM situation on the NES/SNES classic is similar.
I'm pretty sure all roads lead to either playing the game or otherwise not doing anything of value to Nintendo whatsoever (ie who cares if you bury a box of roms in your yard)
And you will probably have a hard time arguing that it doesn't promote piracy. You can't get "ROMs" officially. You have to extract them from the cartridge with specialized equipment, or maybe in some other way, but it is not as simple as reading from a CD. It means that most people will simply get them from illegal sources. With an emulator, you can say it is for "homebrews", but if you recompile a commercial game, you can't use this argument.