Is it legal to sell

Includes but not limited to: SNES, Genesis, Sega CD, PlayStation 1, Nintendo 64, Dreamcast, Game Gear and I guess the Virtual Boy.

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Tchay
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Re: Is it legal to sell

Post by Tchay » Sat Jul 03, 2010 1:06 am

snowpenguin wrote:Sony and nintendo don't make the laws.

His ps2p would only be illegal to sell if it was loaded with games.

If you think it's illegal to sell it if it works off internal memory at all, then every modern gaming console is illegal.
:|

Nintendo and Sony decide what to do with their rights and ownership for their products, so in a way they DO make the laws regarding their copyrights.

And I never said it was illegal if it rain off of internal memory, thatd be silly.

But this is all moot, because a "PS2 Portable" that has no disc drive HAS to play games off of internal memory (backups). Its safe to assume that Knight Raizer didn't make his portable merely for homebrew purposes...

But like I said, Sony might be cool with you backing up your games...but I doubt it.

Anywo, my biggest concern would be the legality of making a doppelganger Gamecube portable (WiiP with Gamecube backups). We could potentially make VERY small gamecube portables with a Sundrive WiiP. But I already know the answer to my own question: if Nintendo has announced on their site that backing up your own Nintendo games via internal memory is illegal, then a Sundrive Wiip with Nintendo games is illegal, plain and simple.

EDIT: sorry for thread jacking. I think its important that people understand these legal issues though.
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Re: Is it legal to sell

Post by snowpenguin » Sat Jul 03, 2010 2:16 am

Dood, raizer cannot get in any trouble unless he sells it with games on it. Even if sony found out about it and cared, they couldn't do crap because for all they know it was only for homebrew.
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Re: Is it legal to sell

Post by Tchay » Sat Jul 03, 2010 3:26 am

snowpenguin wrote:Dood, raizer cannot get in any trouble unless he sells it with games on it. Even if sony found out about it and cared, they couldn't do crap because for all they know it was only for homebrew.
You're right Snow. I'm not trying to stir up the doodu here. I was more just wondering about Wiip and such, but I guess I already knew the answer.

/threadjack
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Re: Is it legal to sell

Post by TornadoCreator » Sat Jul 03, 2010 5:21 am

Right, this is something I bothered to look up quite carefully for various previous projects. Legal issues are often blown out of proportion.

1. It is perfectly legal to create and sell any mod or portable of any console you make, including mods that play multiple consoles.
2. Emulation is not only perfectly legal but used by the big companies for things like XBLA, Wii Virtual Console and offshoot releases like the GENMobile.
3. ROMs are also perfectly legal. I currently have multiple ROMs on this very computer for Gameboy, GBA, Mega Drive, SNES and even .iso's of Sega Saturn, PSone and PC games. It is also perfectly legal to own backup copies of your games. I make ROMs out of every game I buy, especially the rarer cartriages.
4. It is ILLEGAL to distribute ROMs, buy/sell ROMs and to download ROMs over the internet if you do not own a licence for that game.
5. Technically speaking, so long as you own an original cartriage for the game, it is legal to own the ROM also, even if the ROM was made by someone else, using a different physical cartriage as the source because owning the original cartriage constitues a licence of ownership of the software on it.
6. Interestingly, if you sell the original copy you must legally destroy all copies, including ROMs within 24 hours of selling the original otherwise it would be consider piracy and distribution.
7. Selling a moded portable system that runs of an internal memory, even with games loaded into it, is entirely legal so long as you also include the original cartriages in the sale. These cartriages must be owned by the owner of the system for as long as they want to legally use the ROMs within it.
8. Hacked ROMs are also entirely legal so long as they meet the following requirements.
a) You must own the original game cartriage/disc if you are creating a Hack.
b) Your hack may not be sold, but can be distributed freely if the games code is at least 20% original or altered from the original.
c) Anyone can download and own your hack, even if they don't own the original game, but only if it's a least 20% original.

This is what I learned about the legal issues concerning this hobby, and I hope it was a useful and informative post. Should I be mistaken, which I doubt as I was careful to check my information at multiple sources, but even still, don't hesitate to tell me. I wouldn't want to be giving people faulty advice.

PS: This legal information is correct for the United Kingdom where I live. It also applies for Norway, Iceland, Canada, USA, South Africa, India, Hong Kong, Australia and New Zealand but not for Japan, Korea or China and I'm not sure about Mainland European countries. Just so people know.

Interesting side note... Internationally speaking, the internet tends to follow either USA or Australian laws concerning copyright depending on where the site is hosted, although technically the internet itself is only bound by International Law and Maritime Law and the user is bound but the laws of whichever country they're in at the time of using the internet. This is why there are Russian websites with 16 year old porn stars all over the internet much to the annoyance of the USA Government, yet it's illegal in most countries to use those websites because it would be considered underaged porn in those countries. To take this further, it is illegal in some countries such as Iran and Lebanon to be involved in, or watch/use porn if you're under 21, so porn containing a 19 year old would be considered underage porn in those countries. In Japan porn can contain people as young as 14 however it is illegal to show the genitals at all, which is why Japanese porn is always blurred out. Saudi Arabia, being a country that loves to ban things, simply outlaws porn entirely.

I always find the legal issues surrounding pornography as an interesting example as to how legal issues on the internet are rarely simple. Hopefully people didn't find it to be in poor taste.

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Re: Is it legal to sell

Post by Jon » Sat Jul 03, 2010 1:05 pm

Thumbs up on the information. The viewpoints of the world is indeed an interesting topic.

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Re: Is it legal to sell

Post by Tchay » Sat Jul 03, 2010 3:55 pm

TornadoCreator....you should leave sources next time:

Here's my source: NINTENDO
http://www.nintendo.com/corp/legal.jsp#download_rom" onclick="window.open(this.href);return false;

Mod Chips

Mod chips circumvent the security embedded into Nintendo's products. To install the mod chips into a Nintendo hardware system, it is necessary to dismantle the product and, in some instances, remove components. Use of mod chips voids the consumer warranty. Mod chips have also been adjudicated to be illegal in various countries around the world, including the Unites States, the United Kingdom and Hong Kong. Countries around the globe are also adopting similar laws aimed at illegal circumvention of security measures. People caught selling or installing them may be subject to criminal prosecution and may also be liable for civil damages resulting from such activities.

Independent Publishers/Licensees/Licensed Property Owners

Nintendo licenses a number of independent third party publishers to use its patented technology, copyrights and trademarks in developing, creating and marketing their own video games. Additionally, there are a number of intellectual property rights associated with these games that are owned by these publishers. In addition, many independent property owners from such sources as movies, television, sports leagues, etc. license their intellectual properties for use in video games.

What are Nintendo ROMS?

A Nintendo ROM ("Read Only Memory") is the type of chip used in Nintendo's video game cartridge which contains the game software. However, this term is commonly used on many gaming sites on the Internet and refers to game data that was copied from an authentic Nintendo video game cartridge.

What is a Nintendo Video Game Emulator?

A Nintendo emulator is a software program that is designed to allow game play on a platform that it was not created for. A Nintendo emulator allows for Nintendo console based or arcade games to be played on unauthorized hardware. The video games are obtained by downloading illegally copied software, i.e. Nintendo ROMs, from Internet distributors. Nintendo ROMs then work with the Nintendo emulator to enable game play on unauthorized hardware such as a personal computer, a modified console, etc.

Can I Download a Nintendo ROM from the Internet if I Already Own the Authentic Game?

There is a good deal of misinformation on the Internet regarding the backup/archival copy exception. It is not a "second copy" rule and is often mistakenly cited for the proposition that if you have one lawful copy of a copyrighted work, you are entitled to have a second copy of the copyrighted work even if that second copy is an infringing copy. The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet.

How Does Nintendo Feel About the Emergence of Video Game Emulators?

The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers. As is the case with any business or industry, when its products become available for free, the revenue stream supporting that industry is threatened. Such emulators have the potential to significantly damage a worldwide entertainment software industry which generates over $15 billion annually, and tens of thousands of jobs.

What Does Nintendo Think of the Argument that Emulators are Actually Good for Nintendo Because it Promotes the Nintendo Brand to PC Users and Leads to More Sales?

Distribution of an emulator developed to play illegally copied Nintendo software hurts Nintendo's goodwill, the millions of dollars invested in research & development and marketing by Nintendo and its licensees. Substantial damages are caused to Nintendo and its licensees. It is irrelevant whether or not someone profits from the distribution of an emulator. The emulator promotes the play of illegal ROMs , NOT authentic games. Thus, not only does it not lead to more sales, it has the opposite effect and purpose.

How Come Nintendo Does Not Take Steps Towards Legitimizing Nintendo Emulators?

Emulators developed to play illegally copied Nintendo software promote piracy. That's like asking why doesn't Nintendo legitimize piracy. It doesn't make any business sense. It's that simple and not open to debate.

People Making Nintendo Emulators and Nintendo ROMs are Helping Publishers by Making Old Games Available that are No Longer Being Sold by the Copyright Owner. This Does Not Hurt Anyone and Allows Gamers to Play Old Favorites. What's the Problem?

The problem is that it's illegal. Copyrights and trademarks of games are corporate assets. If these vintage titles are available far and wide, it undermines the value of this intellectual property and adversely affects the right owner. In addition, the assumption that the games involved are vintage or nostalgia games is incorrect. Nintendo is famous for bringing back to life its popular characters for its newer systems, for example, Mario and Donkey Kong have enjoyed their adventures on all Nintendo platforms, going from coin-op machines to our latest hardware platforms. As a copyright owner, and creator of such famous characters, only Nintendo has the right to benefit from such valuable assets.

Isn't it Okay to Download Nintendo ROMs for Games that are No Longer Distributed in the Stores or Commercially Exploited? Aren't They Considered "Public Domain"?

No, the current availability of a game in stores is irrelevant as to its copyright status. Copyrights do not enter the public domain just because they are no longer commercially exploited or widely available. Therefore, the copyrights of games are valid even if the games are not found on store shelves, and using, copying and/or distributing those games is a copyright infringement.

Haven't the Copyrights for Old Games Expired?

U.S. copyright laws state that copyrights owned by corporations are valid for 75 years from the date of first publication. Because video games have been around for less than three decades, the copyrights of all video games will not expire for many decades to come.

Are Game Copying Devices Illegal?

Yes. Game copiers enable users to illegally copy video game software onto floppy disks, writeable compact disks or the hard drive of a personal computer. They enable the user to make, play and distribute illegal copies of video game software which violates Nintendo's copyrights and trademarks. These devices also allow for the uploading and downloading of ROMs to and from the Internet. Based upon the functions of these devices, they are illegal.

Can Websites and/or Internet Content Providers be Held Liable for Violation of Intellectual Property Rights if they are Only Providing Links to Illegal Software and/or Other Illegal Devices?

Yes. Personal Websites and/or Internet Content Providers sites That link to Nintendo ROMs, Nintendo emulators and/or illegal copying devices can be held liable for copyright and trademark violations, regardless of whether the illegal software and/or devices are on their site or whether they are linking to the sites where the illegal items are found.

How Do I Report Potential Infringements to Nintendo Products?

To report infringing items on internet auction sites, please call us at 1-800-255-3700 begin_of_the_skype_highlighting              1-800-255-3700      end_of_the_skype_highlighting begin_of_the_skype_highlighting              1-800-255-3700      end_of_the_skype_highlighting begin_of_the_skype_highlighting 1-800-255-3700 end_of_the_skype_highlighting or e-mail us at auctionpiracy@noa.nintendo.com

To report ROM sites, emulators, Game Copiers, Counterfeit manufacturing, or other illegal activities, please call us at 1-800-255-3700 begin_of_the_skype_highlighting 1-800-255-3700 end_of_the_skype_highlighting or e-mail us at piracyscene@noa.nintendo.com

For any other legal inquiry or concern, please call us at 1-800-255-3700 begin_of_the_skype_highlighting 1-800-255-3700 end_of_the_skype_highlighting or e-mail us at noalegal@noa.nintendo.com

For more information on piracy issues regarding the videogame industry, please visit the Entertainment Software Association's website at http://www.theESA.com" onclick="window.open(this.href);return false;.

/quoting

None of this is my opinion, all straight from Nintendo's corporate page. Now, TornadoCreator seemed to be right about copying your own game for archival purposes. I thought I would show this just so everyone is clear. This means my earlier post was wrong. You CAN backup your own copy for archival purposes. BUT, if you sell a portable with backups, you have to destroy your copy.
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Re: Is it legal to sell

Post by TornadoCreator » Sat Jul 03, 2010 9:32 pm

I would quote sources if I had them, but I learned the information that I had. Meaning over a period of time I looked at various sources of information and took the time to remember it, in the same way as I remember than Athens is the capitol of Greece, I don't have a source because the source is my own memory. I probably read it in a book somewhere... unfortunately people online have a tendancy to become instant experts with the help of google, and it creates often large gaggles of people who know absolutely copulate all but think they know everything because they have a search engine. Now, I don't want this to seem like I'm bashing Tchay at all, I'm glad he made his post as I wouldn't want people to take what I say on faith. But what I feel I should address is the whole "stating sources" issue. People who feel a need to state sources at everything are people with no intellect of their own. When someone grabs a book and website and effectively uses the argument "look I'm right because someone else wrote down the thing I just said", I feel generally saddened for the human race as a whole. You can likely find a book or website that will agree with almost any idea, standpoint, opinion or so called fact and generally speaking even things that should be irrefuteable, such as supporting an argument for evolution with scientific works doesn't even stand up, because somewhere there will be a creationist with a biology degree who wrote a paper about it. Law is much the same, after all, it would be stupid to claim that killing a Welshman in England would be perfectly legal, but so long as you use a crossbow and you're within and old city wall it is as the law was never repealed, but no judge would ever take it seriously. The same is true in USA, the constitution specifically states that the many should not make laws to undermine the rights of the few yet slavery happened, womens rights where held back for years too and gay rights are still being denied to this day. Basically what I'm saying is a source is only as good as it's writer and it's baring on reality, and the day in which my own practical experiences, intellectual deductions and ability to learn no longer consitutes a source so much so that I can't discuss something on a discussion board unless someone else thought of my opinion first and wrote it down for me to quote parrot fashion, well, I wouldn't want to continue living should that day come.

All in all the information seems rather vague as to exactly where the line is drawn by Nintendo and exactly what is illegal. But also remember that some things are illegal that quite frankly no self respecting company would ever take you to court over. Such as the legal warning the average DVD or VHS tape that states that lending it to a friend constitutes illegal distribution, as does inviting friends around to watch it as a group. Nintendo are also naturally going to be biased in what they claim. They will read to the letter of the law and spirit of the law, flitting between the two, as it suits their needs as any company would.

As for the mod chips that void a consumer warranty, Nintendo is entirely talking out of its copulate arse there. Opening the console up voids the damn consumer warrenty and that's hardly illegal. The illegal part has nothing to do with the mod chips, and everything to do with bootleg cartriages, which are illegal and would require a mod chip to play them. That said, a bootleg cartriage would also count as a legitimate form of backup medium and so long as you still own the original cartriage and have not distributed any of the copies, it would still in fact be legal to own both the bootleg cartriage and the chipped console. There are however loopholes to this, and games companies could reasonably sue someone if they have reason to believe that you're creating modded consoles for the purpose of playing illegally obtained bootleg games, or making bootleg games for distribution. So while it is perfectly legal to have 50 bootleg copies of Super Mario World and 10 chipped SNES consoles, chances are you would be found to have due cause to accuse to of intent to supply copyrighted material. Again though, assuming you have a competent lawyer, he would be easily capable of proving no crime was actually commited because unless actually caught selling the games, you cannot be found guilty of distributing copyrighted material. It's the same logic that would follow that a person walking down the street with a full petrol can, a couple of glass bottles and some oily cloth rags is not actually breaking the law, and cannot be sentenced for anything, but chances are the police are going to arrest you anyway because the chances are you're making Molotov Cocktails with those things... but you could easily be returning from your brothers house after helping fix his car and just happened to have had a couple of bottle of Coka Cola (you know the classic ones in the glass bottles) to drink on the way back. It's all about interpretation, and motive cannot be proven, so basically, Nintendo is crap when they say mod chips are illegal and no case defended by a competent lawyer would ever reach the courtroom. Nintendo wouldn't even bother to sue, it's not worth the money it would cost in legal bills even if they did win.

Now again, I have no sources for what I've just said, because the above information is the culmination of 10 years worth of higher education, studying and a passion for reading and learning. This entire post was from my own memory and intellect, and although it means the chances for error may be higher as I could have easily made a mistake, as it's something I learned and thus understand, not just a cut/paste job, the chances of outright missinformation are considerably less. Consider it this way, if you have an illness with a few specific symptoms, you would go to a doctor because his learned experiences will likely reach the correct answer, even if he makes a mistake on occation, however if you got a complete library of medical texts published over the last 500 years, you are certain to get the correct answer as to what's wrong with you (assuming we've discovered it), but chances are you'll also get many other disorders and illnesses that have similar symptoms but are entirely different in your searches, and without the experience and knowledge once can only get from learning, not from Google, you would have no way of knowing which was the correct one.

Hopefully this point was well made, and again I wish no hard feelings to Tchay, after all, I myself have responded to many a topic online in much the way you did there. It's only very recently I've come to embrace the phrase "Knowledge is Power" although I like to follow it with "Google is only the illusion of Power". Still I encourage you to still question. After all, to search for supporting evidence is the antithesis to blind faith and the very basis behind the scientific method, and although this point is an advocation of learning one should take seriously, it is little more than a glorified if elegant argument from authority. The problem however with an argument from authority, is just because the premise is logically fallacious doesn't mean the ideal is not wise and the outcome not true.

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Re: Is it legal to sell

Post by bassmasta » Sun Jul 04, 2010 12:45 am

There's a lot of legal grey area around ROM's. One issue is one that wikipedia brings up is
Some games companies, such as Nintendo, print warnings inside their game manuals that they do not allow users to make backup or archival copies. Whether or not these warnings in this specific form can be considered valid contracts is legally questionable. For an overview of relevant issues, see user agreement (EULA), shrink wrap contract, clickwrap, Fair Use, Fair Dealing and DMCA.
ROM's may or may not be illegal as many different instances apply.
Are you entitled to a backup/archival copy? Yes, but as long as you make it and do not circumvent copy protection mechanisms on it.
Are you entitled to a second copy on a different cartridge etc? Not in the US.
Spoiler:
However, in the U.S. it has been illegal since 1983 for a user to create their own backups of video game ROMs onto other cartridges. This was decided in the court case of Atari v. JS&A. JS&A manufactured a "game backup" device that allowed users to dump their Atari ROMs onto a blank cartridge. JS&A argued that the archival rule allowed for this. The court disagreed, noting that ROM media was not subject to the same volatility as magnetic media (for which the law was created). Thus, not being so relatively vulnerable, ROMs were not applicable under section 17 USC 117(a)(2).
There are misconceptions that you can have a second copy.
Are modchips illegal? Probably yes.
Spoiler:
One of the functions of many modchips—the circumvention of copy protection mechanisms—is outlawed by many countries' copyright laws such as the DMCA in the USA, the EUCD and its various implementations by the EU member countries, and the Australian Copyright Act. However, due to the many diversified functions of a modchip, other laws may apply to a modchip as well, allowing specific functions (e.g. the circumvention of region coding under Australian law).
Now, selling a portable system MAY with internal memory may be illegal. I say may because of the complications of software licensing. It may say your use of the software constitutes acceptance of the software maker's terms, and breaking the terms may be illegal. As the issue wikipedia brought up, whether those terms can be considered actual legal contracts is questionable.

TornadoCreator, I'd like to ask you where you get this 20% idea. Is it an extension of derivative works? I haven't heard about this, and I'm curious to where you found it.
Also
Basically what I'm saying is a source is only as good as it's writer and it's baring on reality, and the day in which my own practical experiences, intellectual deductions and ability to learn no longer consitutes a source so much so that I can't discuss something on a discussion board unless someone else thought of my opinion first and wrote it down for me to quote parrot fashion, well, I wouldn't want to continue living should that day come.
We aren't asking for your opinion. If you have the knowledge, then state the facts.
You also seem to contradict yourself as you make the point that people shouldn't always question sources, yet because you have "researched" we should trust you. This is the internet. What qualifies you, a poster on THE INTERNET, to make the assertion that we should trust you? A reputable source (e.g. US law) qualifies your claims and extends the spread of legitimate information.
zeturi wrote:If you're getting 404'd when trying to use the links in stickies, try this tutorial to find that juicy info.

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Tchay
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Re: Is it legal to sell

Post by Tchay » Sun Jul 04, 2010 3:58 am

TornadoCreator, this wasn't a debate. Opinions mean nothing to corporate laws regarding copyright. Nintendo has clearly stated what allows for Roms/backups to be legal. Without a "source" my previous post might as well have been an opinion.

Btw, ever watched a debate tournament? Or Presidential debate?......just curious :wink:

"Basically what I'm saying is a source is only as good as it's writer and it's baring on reality"
^ I have a hunch Nintendo's legal department would disagree with this statement

so basically, Nintendo is crap when they say mod chips are illegal and no case defended by a competent lawyer would ever reach the courtroom.

:wtf:

it's not worth the money it would cost in legal bills even if they did win.
- Nintendo has lost billions in sales due to the continuation of piracy.

supporting evidence is the antithesis to blind faith and the very basis behind the scientific method
I completely agree. I'm glad you finally came around by the end of your post :wink: we all need to vent some times, I understand.

Argument settled :mrgreen:
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Re: Is it legal to sell

Post by TornadoCreator » Sun Jul 04, 2010 5:46 am

TornadoCreator, I'd like to ask you where you get this 20% idea. Is it an extension of derivative works? I haven't heard about this, and I'm curious to where you found it.
It's common knowledge to anyone who's studied media or computer programming in higher education. One of the things my lecturers where very clear on was the way copyright laws concerning similar products and derivitive works work. Granted again I have no source for my claims, (unless you want the phone number of my computer sciences lecturer from 3 years ago), but I can give an example. Programs like OpenOffice in which the base code is extremely similar to Microsoft Word is entirely legal to distribute as it's base code is at least 20% different than that of Microsoft Word which it is based off. I believe there's a similar law concerning cookery recipies and I remember a court case concerning the Betty Crocker Cookbook but I don't remember any details of that.

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Re: Is it legal to sell

Post by TornadoCreator » Sun Jul 04, 2010 6:12 am

Tchay wrote:TornadoCreator, this wasn't a debate. Opinions mean nothing to corporate laws regarding copyright.
I know it wasn't intended as a debate, and I wouldn't want to cause any animosity as I like this community (well spoken intelligent people on the internet, no way) and have been admittedly lurking around here for quite some time before I joined in but as you said sometimes we need to vent. (I did the same recently on YouTube http://www.youtube.com/watch?v=nIXjW-H34fA" onclick="window.open(this.href);return false; and that was about pretty much nothing). I know the site has some strict rules on discussing things like religion and politics as it tends to get peoples backs up, but I feel we're acting like responsible civilised people here and I respect peoples ability to discuss things without it becoming a silly internet flamewar. Especially as this is tenuously linked to the hobby.

Honestly my opinions, although grounded in fact, may not be perfectly accurate but all I really wanted to get across is how there are grey areas in corporate law. Some laws exist that are never acted upon, some laws exist but are so open for interpretation they may as well not have bothered, and some laws don't exist but through clever lawyers somehow people are found guilty of them. Legality and morality are also rarely the same. Let's face it, we're looking at a legal system that has succeeded in letting someone sue Wal-Mart after tripping over a toddler in their store, and won, and it was her toddler. A legal system that allowed a man who accidentally locked himself in someones garage when he was robbing them while they where on holiday sued the owners for emotional pain because he was trapped there for 8 days without a toilet and subsiding of dried dog food. Compound this with the fact that some companies are so stupid the have been known to sue themselves. In the case of Apple, they threatened to sue a website for daring to put a link to the Apple website where you can find technical information about their products, because apparently their technically manuals are copyrighted so linking to them on THERE OWN WEBSITE clearly violates the copyright of their FREELY DISTRIBUTED technical troubleshooting magazine. Apple lawyers clearly don't know what a hyperlink is.

Anyway, thank you for listening to my points, this was a thoroughly enjoyable discussion. And for anyone who disagrees with my points fair enough.

As for anyone who's unsure about actual legal issues of what they're doing, the best advice is, if you think it might be illegal just assume it is. That way you can't get in any trouble.

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