Are these types of files allowed on DH? NDS Rom files are basically .nds files that emulate the actual Nintendo DS Game. These files are usually used for back up and archival purposes. There an archaic legal and rules for the use of NDS files but I was wondering if these files would be allowed on Dreamhost, under certain circumstances.
The answer is almost certainly an emphatic no. Although it is legal (under certain circumstances) to make a copy of a ROM file for personal use, distributing it is illegal. Putting up any copyrighted material (ROM files included) online is illegal, and will probably result in having your account terminated.
I understand that it is copyrighted material, but what if lets say i Upload it online for archival and backup purposes (and that I own and bought the original copy of the game).
You would need to make sure that the copy wasn’t accessible (i.e. not in a browsable directory) or you would still be in legal jeopardy. You may still be in violation of DreamHost’s own Terms of Service anyway.
Let me speak plainly. It sounds to me like you are looking for a justification to put copies of ROM files online to allow them to be downloaded, which is basically the illegal distribution of pirated media. My advice would be to not do it.
When you start with that line of reasoning, you are generally headed into problematic waters.
If you are concerned about the “legality” of what you propose in any given scenario, you should ask a lawyer for advice, and consider the answer you receive to be “possibly correct” - courts decide lawyer A is right and lawyer B is wrong every day.
If you are concerned about the DreamHost TOS, just read the damn thing, and check out http://abuse.dreamhost.com. You might be able to get away with putting the files on a DreamHost server, in a certain circumstance, and you might not - but the TOS is pretty clear about whether they are “allowed”. If your account is terminated for TOS violation, don’t expect DH to refund any of the money you have paid, or to be able to “get back in” to retrieve any files/data you didn’t have backed-up when you account was closed.
I suggest you get your own box and put whatever you want on it. That way, you and you alone can decide what is “okay” and what is not, and you and you alone will have to deal with any potential legal issues or repercussions.
I think that there’s a lot of unwarranted assumptions in this thread. Most free software programs are copyrighted works yet they are distributable, even commercially distributable. Typically a copyrighted work’s license describes the permissions and obligations for any licensee. I’m sure Nintendo’s licenses are no exception. Nintendo is not the only copyright holder for DS programs, so even if Nintendo uniformly prohibits copying and distribution of their programs, other copyright holders can be far less restrictive.
It’s entirely possible that there are free software Nintendo DS image files (that is, free software program image files which run on a Nintendo DS computer). Therefore one should be more careful than to declare that “distributing it [a Nintendo DS ROM image file] is illegal” and that “Putting up any copyrighted material (ROM files included) online is illegal”. This simply isn’t so.
Finally, it would be shameful if DreamHost thought it their obligation to stop distribution of copyrighted works from their servers in the absence of a proper complaint. There’s enough trouble with large commercial copyright holders (such as the National Football League) abusing the DMCA by issuing bogus takedown requests; there are also safe harbor provisions to help people place their files back online and keep online service providers from being targeted as a contributory infringer.
- I think homebrewing on the Nintendo DS is a bit iffy since you need to use rewritable cartridges which have a questionable legal standing. Besides, the OP said “that emulate the actual Nintendo DS Game. These files are usually used for back up and archival purposes.” I don’t think they were talking about homebrew games.
Well, they do cancel accounts for chronic violation of the “no distribution of copyrighted material” part of their ToS. I think I remember reading some threads here about their taking action in cases of obvious (or even not-so-obvious) cases of copyright violation.
I don’t know the reasoning, but it could be paranoia about the “no actual knowledge” requirement of the OCILLA.
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Those are all good points, and I’m glad you brought them up.
The whole issue could have been framed much more accurately if, instead of saying “distributing copyrighted material(s)” is “illegal”, or a violation of the TOS, etc., it was instead said that “distributing copyrighted material(s) that you do not have the legal right to distribute” is a violation of the TOS. That would have properly addressed your points in your first two paragraphs.
“Fair Use” is another consideration, though it probably isn’t so much relevant in the case of ROMS (though, I suppose it could be under certain circumstances - meh).
Well, I’m not sure I would describe that as “shameful” - how you perceive that from a “shame”, “right vs. wrong”, or “moral,” standpoint depends quite a lot on how you perceive the “rightness” of present copyright law. That’s a huge issue in and of itself, but it doesn’t really effect what the law is now, and that’s what we are all having to deal with at the present.
DreamHost is trying to run a business, and a “value” business at that. I see nothing “shameful” on their part in trying to minimize the expenditure of their resources in dealing with DMCA take-down notices, subpoenas, demand letters, etc. by simply proscribing certain things in their TOS. It’s a business decision, and there are lot’s of other hosts if one doesn’t like DH’s rules.
It is a valid business decision for a company to attempt to minimize their exposure to these time-sinks by being “proactive”; trying to keep their servers free of content likely to be infringing may well save them a lot of time, money, and aggravation.
Sure, “safe harbor” provision may protect them from liability, but it won’t spare them the cost of having to deal with the consaequences of hosting infringing content, and that can easily add up to a major expense.
I agree! A quick read through the abuse.dreamhost.com pages makes it pretty clear they understand this. I actually think they take a nicely balanced approach, from a business standpoint, to the whole issue.
All this discussion can easily devolve into waring factions on any side of the whole mess that is present American copyright, trademark, and patent law, and end up completely ignoring the reality that DreamHost has a right to conduct their business in the manner they wish, within the requirements of the law.
No one has to host here, and there may well be a hosting business model out there and can afford to, or wishes to, spend their resources in support of copyright “activism”. Maybe they charge more money for hosting, or save money somewhere else. (That hosting business model is already well established in the cases where hosts are friendly to SPAMtards!)
A lot of these infringement issues can also be rendered virtually moot by hosting with a non-US company; different strokes for different hosts. I see that a a “Good Thing” ™
I don’t know their reasoning either, but I expect they would rather “just say no” than face an ever-increasing barrage of legal process over stuff that they would just as soon not host.
I think the “constructive knowledge” issue you bring up is also a real possibility. From what I have seen, they have excellent legal counsel, so I’m sure they have reasons with which they are comfortable.
I disagree that DreamHost is either better off seeking out copyright infringement (and presumably taking steps to prevent it from ever being hosted on DreamHost servers), or whether it’s possible for DreamHost to avoid the consequences of hosting allegedly infringing works.
I do not agree that seeking out copyright infringement (as opposed to letting the copyright holder find the infringement, as it is their burden) will save DreamHost “time, money, and aggravation”. Quite to the contrary, properly determining permission and the interference in normal operation this poses for DreamHost customers will be nothing but time-consuming, expensive, and so aggravating that customers will leave DreamHost. Cory Doctorow’s latest Guardian column discusses this. DreamHost stands to lose more customers when extra-judicial takedowns are considered “valid business decision[s]”. The Internet Archive librarians behave as if they’re waiting for a proper infringement complaint before doing anything involving a takedown despite users tipping off the librarians to potential infringements in their forums.
Only repealing the DMCA can spare any US-based hoster “the cost of having to deal with the consaequences of hosting infringing content” because in the US that cost now comes with the job of being a hoster. To believe otherwise is to believe that relevant laws can be avoided through a sufficiently careful screening process whereby infringing works are identified and never hosted. This process does not exist, would be prohibitively expensive if it were attempted, and a small portion of this problem is already endlessly aggravating to archivists who preserve works where the copyright holder is unresponsive or cannot be found.
I am 100% sure that DreamHost doesn’t institute the controls that Cory Doctorow seems to be concerned with:
I think that DreamHost support engineers, if they come across a file sharing site with hundreds of megabytes of free commercial MP3 rips for download for “educational purposes”, do initiate some kind of action.
Don’t get me wrong, I hate the DMCA and the RIAA’s recent heavy-handed actions as much as the next guy, but I don’t begrudge copyright holders their due. Nor do I begrudge DreamHost the option of both having Terms of Service that require compliance with the law and in not turning a blind eye to illegal hosting.
That said, I truly despise the anti-copy-protection aspects of the DMCA and the criminal and commercial prosecution of file sharers. The RIAA brought this on themselves through years of fleecing their customers with overpriced product.
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Rather than start argumentatively by focusing on the areas in which we disagree, I’ll first respond that I agree with much of what you write. I probably agree with much more of how you feel about all this than I do with your actual words. I tend to get caught up in the semantics of some of these discussions, and tend to focus on distinctions of methodology, and practice, that many anti-copyright activists seem to believe are unimportant.
I agree that DreamHost, and their customers, are not well served by DreamHost “seeking out” copyright infringement.
I agree that it is probably impossible for Dreamhost to completely avoid the consequences of hosting allegedly, or actual, infringing content.
Like you, I do not feel “seeking out” infringement is a particularly effective tool for saving “time, money, and aggravation”. You correctly point out that these irritants are present in one form or another, or from one quarter or another, whether they do, or don’t attempt to “police” the actions of their customers. It’s very much a “damned if you do and damned if you don’t” thing at some level.
I read Cory Doctrow’s piece (as I do most of what he, and Lawrence Lessig, writes) and agree with him. I think the DMCA is woefully flawed, is “bad law”, and I would like to see it repealed. I am very much opposed to government censorship, for a plethora of reasons that have to do with many things including the economics of “intellectual property”.
That said, the semantics do become important, and therein lie the issues where our views diverge. I see very real differences between “seeking out” potentially infringing content, turning a “blind eye” to, or ignoring, apparently infringing content, dealing with such content as it is encountered, and responding to reported allegedly infringing content (whether by DMCA takedown notice, demand letter, casual observation of a sysadmin, whatever)
To the degree that a business is not an arm of the government (though many argue that,in America, they are often cohorts in crime), I believe a business should be free to deal with these things as suits their business model, their politics, their economic sensibilities, or all of the preceding.
This is where I see both Cory Doctrow’s pamphleteering and the Internet Archive’s librarians’ behaviors as being strawmen in the discussion of how DreamHost chooses to handle these situations. They should lobby strenuously for what they believe, and should run their operations as they see fit - and so should DreamHost, or any other host.
I have no more problem with the Internet Archive waiting for a DMCA takedown notice than I do with DreamHost, or another host, choosing to evaluate the reports of alleged infringement received from users, the general public, or non-DMCA compliant demand letters if they choose to do so. These are their machines, and the material stored on those machines is subject to their control, as they define it in their TOS. Certainly, their TOS may not be acceptable for some.
Customers who do not agree to these restraints or terms are not “censored”, as they have the free opportunity to set up their own servers and net connections, or contract for hosting with a provider whose terms are more to their liking.
Of course, the market will determine whether DreamHost’s, or any other hosts’, TOS are sufficiently onerous to prevent them from being successful. To date, the continued growth of DreamHost seems to indicate there is a general level of comfort with their business model sufficient for them to succeed, but that could always change
That is certianly a true statement, as far as it goes, but it ignores the realities of “degrees of consequences” to which a company may be subjected. The truth in that statement does not mean that a company should not be free to attempt to minimize that cost to whatever degree possible, and in any legal manner they choose to employ to that end.
One company may believe that their exposure to such consequences is minimized by “seeking out” potentially infringing content and eradicating it on sight, another might believe that refraining from “seeking out and eradicating” such content while dealing with such content as it is encountered is a more economically feasible approach, and yet another company might feel that ignoring the issue completely until legal process forces some action is the “best” approach (for economic, political, or philosophical reasons). I have no problem with any of those models; I’m free to host where, and how, I choose to host.
I’m at least as afraid of those who would force a host into a “chosen” model as I am of any of the models themselves. That could effectively limit my ability to host where, and how, I choose.
You seem to feel that any degree of pro-activity on the part of a host in dealing with this is impossibly difficult, expensive, and detrimental to a host’s business; I’m not so sure that is the case. Either way, it is not your, or my, decision to make - it is the decision of the host. It is our decision as to whether or not we choose to avail ourselves of the services of that host, and we have every right to consider this issue in making that decision.
Of course, the whole state of the law in these matters is a mess in the US; on that I think we agree. It’s also true that archivists, creative individuals, and scholars suffer greatly in trying to function effectively and efficiently under the burden of these laws, and I’d like to see that changed.
At the end of the day, I am comfortable with the stated, and demonstrated, positions DreamHost has taken in addressing these issues over the course of the 9 years I have hosted with them. I understand, and respect, that YMMV and encourage you to voice your opinions; I also respect Dreamhost’s, or any other host’s, right to do business as they see fit.
I also very much enjoyed reading your blog earlier this evening. There is interesting and relevant content there, and your site is outstanding. Thanks!
That is very well stated, and pretty accurately describes how I feel about it.
That’s not to say I completely agree what what present copyright holders feel is “their due”, or what “due” current copyright law has granted them. I feel that has gotten out of hand and should be revisited, but that is another subject.
Broadly-speaking, I agree with the comments made by rlparker; however, with respect to copyright violation I take the following stance:
The copyright laws are stupid. Particularly with respect to copyright extensions and cracking-down on fair use.
And so are the patent laws, by the way. Half the time, the USPTO ignores prior art (like in Eolas Vs. Microsoft). They give out patents like candy bars on Halloween.
Doing anything illegal is equally stupid, irrespective of the moral high ground. I have no patience for thieves and pirates, because they all know they are breaking the law, even if they don’t agree with it.
DreamHost can do whatever they want, because we agree to abide by their rules when we sign-up for their service. If they want to actively pursue copyright violations, then more power to them.
Coke is better than Pepsi.
Totally agreed! Pepsi is an illegal abortion of the psychosomatic conundrum we know as “corporate legitimacy”.
… goes back to reading more Calvin & Hobbes
Just to note btw, if you follow any of the news posts on arstechnica.com, you’ll notice a LOT of “battles” between the RIAA/MPAA and their cohorts versus the “Pirates” as well as legitimately innocent parties, of which these lovely corporate conglomerates have exceedingly tried to victimize.
Such things have been going on for some time of course, it’s just that it seems to be coming to more of a “boiling point” right now than before.
So hopefully, once all of these “battles” have subsided to a better degree, we’ll see some changes in copyright laws (the sooner the better IMO) at the very least .
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