(The post that follows could be considered selfish, and I suppose that for self-preservation reasons it is, but I wanted to share my thoughts on my own risk profile.
I'd consider myself to be one of the more public faces of TASing, and thus at greater risk of direct attack. Specifically, I took a risk showing NES SMB inside SNES SMW at AGDQ 2015 (that was a lot of acronyms and an assumption of prior knowledge on my part;
check out this ArsTechnica article as needed for the backstory, but I digress). I ensured I had both the correct SMB and SMW cartridges physically present with me on-site at AGDQ. I also had access to equipment that could have allowed me to re-dump the contents of SMB from the cartridge ROM (albeit not easily) if I was pressed to do so. Because neither system employs encryption the DMCA is not invoked and thus I maintained a defensible position in the context of presenting in front of a live audience.
While I was able to protect myself for the purposes of presentation at a non-profit fundraiser, what we haven't been able to sort out is how to release this art in a way that would not result in unwanted legal attention. We could release the button presses as an .lsnes movie file but that technically contains a nearly unrecognizable but nevertheless intact ROM dump of SMB. We could release an .ips patch file to SMW but the patch file would have the same problem and is exactly the kind of content that seems to be getting targeted, so that's no better. That leaves us with the encode; based on the recent activity at Nicovideo it's even possible for the
encode of SMB on SMW to be targeted for removal even though there's a reasonable case to be made that it is fair use.
In summary, in selfishly looking at only my own situation I'm probably safe, but there is still a lot of leverage out there to prevent the team who created this art from sharing it. I feel rather strongly that what we have created only benefits the original IP holder through additional exposure, especially as there is no profit being made, but that's something a court will have to decide. I will continue to attempt to be above reproach as much as possible, but I'll again be taking a risk if I pitch running Ikaruga at SGDQ 2015 (what's safer, Dolphin with an exact copy of the game with the original in plain sight, or a video encode of the same?) and I have a secret project I'm pitching for AGDQ 2016 that will possibly also be what I'd best describe as risky. I guess we'll just have to see what happens.
