wee doors banging

This is a posting I made in the excellent English Amiga Board forums regarding the legality (or lack thereof) of WHDLoad patches for old Amiga games. The original posting was made in 2005 but the question has come up again recently so I thought it would be useful to post the text again.

Before you read on, there are some un-pleasantries to deal with. I am not a lawyer, solicitor or any other kind of qualified or practising legal professional. This article is based on my own layman level research and may contain gross omissions and / or inaccuracies. It must not be taken as legal advice. If you are in any doubt about any legal matters you must consult a qualified professional.

That ought to do it. Now on with the legalese fun. We’ll look at this from both sides of the Atlantic:

United States of America

In the US, I believe the relevant legislation is the infamous Digital Millenium Copyright Act (DMCA) (http://www.copyright.gov/1201/), or, more specifically, a 2003 amendment to it:

Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works

On October 28, 2003, the Librarian of Congress, on the recommendation of the Register of Copyrights, announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. The four classes of works exempted are:

[...text deleted for brevity...]

(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

[...text deleted for brevity...]

I think we’re pretty safe in saying that the Amiga models these games were designed for are “no longer manufactured” as well as “no longer reasonably available in the commercial marketplace” (if only…), so the American legal situation for WHDLoad patches would appear to be clear cut.

Europe

The European situation is not quite so obvious as in America. On this side of the pond, I believe the relevant legislation to be “Council Directive 91/250/EEC (14 May 1991)”. The proposed EUCD (aka “Euro DMCA”) does not apply to computer programs and in any case has not been passed into law yet … I think.

Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs

Whereas the exclusive rights of the author to prevent the unauthorized reproduction of his work have to be subject to a limited exception in the case of a computer program to allow the reproduction technically necessary for the use of that program by the lawful acquirer;

Whereas this means that the acts of loading and running necessary for the use of a copy of a program which has been lawfully acquired, and the act of correction of its errors, may not be prohibited by contract; whereas, in the absence of specific contractual provisions, including when a copy of the program has been sold, any other act necessary for the use of the copy of a program may be performed in accordance with its intended purpose by a lawful acquirer of that copy;

[...text deleted for brevity...]

I read this as saying: if you lawfully acquire a program you can do whatever you need in order to use it, including modifying the program to fix errors and bypassing any reproduction prevention mechanisms (copy protection) that prevent you from using it. I believe my position on this is supported by Article 5 of the directive:

Article 5 – Exceptions To The Restricted Acts

1. In the absence of specific contractual provisions, the acts referred to in Article 4 (a) and (b) shall not require authorization by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction.

[...text deleted for brevity...]

For reference, Article 4(a) mentioned above would appear to refer to making copies of a computer program, and Article 4(b) would appear to mean that only the rightsholder(s) are permitted to modify a computer program. Therefore Article 5 would appear to exempt these actions from requiring permission from the rightsholders in cases where the actions are necessary in order to use the program.

However, there is no mention of the legality of creating and/or distributing programs that automatically perform these actions (ie: WHDLoad patches), so I guess this is a legal grey area. It is perhaps covered under Article 6 of the directive:

Article 6 Decompilation

1. The authorization of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of Article 4 (a) and (b) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:

(a) these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorized to to so;

(b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph (a);

(c) these acts are confined to the parts of the original program which are necessary to achieve interoperability.

[...text deleted for brevity...]

I would argue that a WHDLoad patch is “information necessary to achieve the interoperability of an independently created computer program with other programs”. The initial definition of “interoperability” in the directive includes “all elements of software and hardware” in the system, so in this respect the Amiga hardware and WHDLoad would be “other programs”.

In that case a WHDLoad patch developer would be allowed to decompile (disassemble) the game in order to obtain the “information necessary to achieve the interoperability” (the patch) provided they had lawfully obtained the game in the first place. I believe Article 6 Paragraph 2(b) would further allow them to distribute the information (patch) to allow others to achieve the same interoperability.

Interestingly, there is no mention of specific exemptions for obsolete systems. “Article 8 – Term Of Protection” defends the rights until 50 years after the author’s death!

Summary

In summary, I believe WHDLoad development and patch usage is legal on both sides of the Atlantic provided that you have lawfully acquired the games being patched. Distribution of pre-installed images is not legal I’d say, but then we knew that already.

I don’t know anything of the legal situation in other countries and would like to hear from anyone with knowledge of this subject in jurisdictions other than those covered above.

You can read the original article and the rest of the accompanying thread here.