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The question was asked:

https://gaming.stackexchange.com/questions/4590/how-can-i-make-a-backup-copy-of-my-wii-games

And I think it's a legitimate question. Maybe he should have used the term "archival" tbetter be in compliant with US copyright law, but shouldn't these questions be allowed? There's (presumably) no illegal activity going on here?

Furthermore (should this be a different question?) If the question wouldn't be allowed, but isn't possible, is a "not possible" answer valid, or do we close? What if making backups is illegal, but the answer is "That's not physically possible" so we're not linking to illegal activity, is that allowed?

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See http://www.chillingeffects.org/anticircumvention/faq.cgi#QID91 and http://cyber.law.harvard.edu/openlaw/DVD/1201.html#a

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

Making copies of a Wii disc and making it run on a Wii is definitely circumventing access control.

Additionally:

It is a violation of the DMCA to circumvent access controls, but it is also a violation to provide tools to others that circumvent access controls (including selling, distributing free of charge, and possibly even linking to a site with such technology or even the source code).

  • "Definitely" I think is a strong word here. There are exemptions provided by the librarian of congress which could make his case legitimate, and the "effectively" adjective is also in question if it's only a physical limitation, also, current precedents state that using works you have legally obtained is not in violation. – McKay Aug 5 '10 at 19:25
  • It's not just a physical limitation. It's an actual access control measure. Providing a means to circumvent it is illegal under the DMCA. – user56 Aug 5 '10 at 20:07
  • @Arda A) How is it an "access control measure"? And how does that differ from just being a physical limitation. B) You're quoting from the DMCA there "no person...", but, like I said there are exemptions, and current case law that probably apply in this case either of which is probably enough on its own to make it legal. – McKay Aug 5 '10 at 20:50
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    A) It was put in place by Nintendo, as can be seen in the efforts made by Nintendo to remove software that evades the protection from the device. B) IANAL, but we can't judge posts like this on a case-by-case basis. Consensus in legal matters is to not bother at all. – user56 Aug 5 '10 at 21:35
  • Also, how much does it hurt the site to not bother with these legal questions compared to how much would it hurt the site if we answered them and SO.Inc had to deal with potential legal backlash. There are places all over the internet that will fill this need for them, I doubt it would harm us to much to not be one of them. – Noctrine Aug 6 '10 at 17:37
  • Exactly. In contrast, it will harm us to actually be one of them. – user56 Aug 6 '10 at 17:51
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Regardless of whether or not a backup is possible in the given circumstances, if what the person asks for is illegal they should be notified immediately and the question should be closed as soon as possible. If we want to keep this site clean from this sort of material we have to make it as clear as possible that we will not tolerate questions of this nature.

  • So, if it's only possibly illegal? Probably? Part of the disagreement on this particular issue is that I don't think what he's doing is actually in violation of the law. – McKay Aug 5 '10 at 19:34
  • I wouldn't even want to go into the grey area on these topics, that way we hopefully prevent the dark grey or black ones from being asked too – Ivo Flipse Aug 5 '10 at 21:50
  • @Ivo Then why are there so many questions about Mods, Abandonware, and Emulators? Abandonware (particularly those with nocd hacks) is illegal but unenforced, but because Making an archival copy of a CD, might be considered by some to be possibly illegal we're not going to discuss it and shun the questions? That seems inconsistent. – McKay Aug 5 '10 at 21:53
  • @Jeff Atwood said "it's OK to link to these sorts of grey area "abandonware" sites." Seems like it's okay to talk about light-gray backups. – McKay Aug 5 '10 at 21:55
  • Actually, Jeff said "unless the site is clearly illegal and hosting 'warez'". In this case, it is clearly illegal. – user56 Aug 6 '10 at 7:30
  • @Arda "clearly" is such a strong word. Also, we wouldn't be linking to any sites. We'd be saying "not possible." – McKay Aug 9 '10 at 22:13
  • It is "clearly" illegal if it involves breaking DRM, which is illegal under the DMCA. In the case of Wii games you need to break DRM. – user56 Aug 10 '10 at 14:25

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