But can’t I make a backup copy if I own the video game? You may be thinking of the backup/archival exception under the U.S. Copyright Act. There is some misinformation on the Internet regarding this backup/archival exception. This is a very narrow limitation that extends to computer software. Video games are comprised of numerous types of copyrighted works and should not be categorized as software only. Therefore, provisions that pertain to backup copies would not apply to copyrighted video game works and specifically ROM downloads, that are typically unauthorized and infringing.
This statement is misleading and a lie. Computer software encompass video games as part of the legal definition outlined in Galoob v. Nintendo in 1992, which Nintendo lost in court. They do not have a legal leg to stand on. If someone wants to make an archival copy of a game they own physically, they can legally. The terms backup and archival are not interchangeable from a legal stance and Nintendo intentionally uses misleading language when answering the question.
I was responding to the statement found currently on Nintendo’s website, the question Nintendo states, “But can’t I make a backup copy if I own the video game?” which you posted.
Nintendo makes the claim that making an archival copy of a physical game you own is not legal because video games do not fall under computer software,
“There is some misinformation on the Internet regarding this backup/archival exception. This is a very narrow limitation that extends to computer software.”
According to the court case I referenced, it in fact does just that. This court case clearly spells out that video games do fall under computer software and that they are subject to all of legal rights that go with it, your right to archive your physical copy of your game just like any other computer software, but this does not extend to making “backups” which Nintendo uses interchangeably with the term archive.
In legal terms backups are intended for short term storage and readily usable. An archive is intended with the purpose of long term storage and preservation of the software. Nintendo conflates the two and claims both are illegal, this is the problem. Not the subject of the court case mentioned, the court case I referenced is only to reinforce that the court recognized that video games fall under computer software and that § 117 of The Copyright Act of 1980 do give you that right. Here is a link to that section of the law.