How do you know if you're infringing someone's intellectual property rights (copyrights, trademarks, and patents) when you're selling or buying video and software games? According to Sony, Sega and Nintendo, the following items could potentially be infringing, and both the seller and the buyer could be at risk for infringement:
Backup copies
Listing of backup copies of software, including games software, is not permitted by Details.at. Click here for more information on Details.at's policy on backup copies. Here are some ways to recognize backup copies:
Games which require a mod chip or other special hardware to play. Backup copies, which cannot legally be sold separately, will require such hardware to play. Original games NEVER require mod chips to play.
Games referred to as "Silver" or "Gold" copies. Backup copies are frequently sold using these terms. Silver colored CDs are characteristic of mass production illegal copies frequently produced outside of the US. These are sometimes called HK, Hong Kong, or Import versions.
Multiple games on one CD, especially "choice" compilations. In most cases, manufacturers only offer one game per CD. If you are offered a choice of several games to be put onto one CD, these games are backup copies.
More than one manufacturers' game on the same CD. Games manufacturers do not bundle games with each other. Such compilations are backup copies.
Pre-release games
Selling or buying games that have been acquired prior to the manufacturer's release to the public probably is a copyright infringement. These may include "beta" test games. Listing of beta copies of software, including games software, is not permitted by Details.at. Click here to see Details.at's policy on listing of beta copies.
Manufacturer tip-off
Authentic games by Sony are always black on the bottom. Sony uses a proprietary technology that produces games with this unique design. If a Sony game is sold with a different color CD, it is a backup copy. (Note: Original import versions are fine, but they will not be the silver or gold variety).
Devices that allow the play of import games on a domestic system are infringing upon Sony's copyrights.
Nintendo has produced 99% of its cartridges with only 1 game per cartridge. Any cartridge with more than 8 games has been produced without authorization from Nintendo.
All Nintendo games are on cartridges. Any version of a Nintendo game that is not on a cartridge is an infringing copy.
Software emulators that play Nintendo games without Nintendo hardware are infringing items.
"ROM" is a tip-off term for infringing copies of Nintendo games (usually on CD or Disks).
Backup copies infringe on Sega's copyright.
The sale of imported Dreamcast software and hardware may infringe on Sega's copyrights and/or trademark. Sega sells these Asian versions outside of the US, and pursuant to 17 USC section 602, the subsequent importation and sale of these goods in the US (without Sega's permission) infringes upon Sega's copyrights.
Devices that allow the play of import games on a domestic system are infringing upon Sega's copyrights.
Encouraging the use of an import adapter may be an infringement.
Other infringing items related to games
Selling mod chips is infringing.
Selling modified Playstations, modified game enhancers, or other game hardware which has been modified to play backup copies is infringing.
Encouraging the use of any device described in the above rule may be an infringement.
Selling hardware or software that is made for the purpose of producing unauthorized copies of games is infringing. These include: Doctor Z64 (Nintendo).
You cannot legally transmit copies of games over the Internet. For additional information on Details.at's policies on software policy for games, please go to our Software and Piracy FAQ pages.
What About the Berne Convention?
Some users have written to us asking whether the Berne Convention for the Protection of Literary and Artistic Works (sometimes mistakenly referred to as the "Berne Act") allows them to list an otherwise infringing item. The short answer is "no." The Berne Convention is an international treaty that the United States agreed to in 1989. By signing the Berne Convention, the U.S. committed to making certain changes to its copyright law. In fact, even before signing the Berne Convention, the U.S. had made all the necessary changes to its law. The Berne Convention itself is not U.S. law and does not excuse activity which otherwise would violate U.S. copyright law.
For more information
idSA Anti-Piracy Web Page - Video Game Anti-Piracy
Findlaw - General Law
International Trademark Association - FAQs on Trademarks
Avoiding Trademark, Patent and Copyright Problems (Franklin Pierce Law Center)