Just throwing in my two cents, feel free to disregard this post. Otherwise, go and get some coffee. This will be a long one.
I'm not a lawyer, and I have no formal education in case law. However, I've read the actuals texts of US Copyright Law, the Berne Convention, a lot of case law (Sega v Accolade, Lexmark v SCC, etc), lots of  stuff on Wikipedia and various articles from others on copyright. While I may not have a good enough understanding to win a court case, I do believe I understand the issue fairly well.
That said, my understanding is that by simply translating the work of someone else and releasing it, it is a violation of copyright. Recent court cases suggest to me that we would not be very successful with even hacks. Especially when you consider the role expensive lawyers play in court cases.
In response to:
I recall someone else years ago linking me to the text of some treaty that the U.S. had signed which specifically stated that translations of software that were intended to increase usability were legal.
Links or it didn't happen :P
But this is mostly irrelevant. Regardless of whether or not a translation / hack / document is legal, the work put into it is still copyrighted by the owner. It does not become public domain just because it's not legal. Nor is it PD just because no license was specified. The default state of a work means all
rights are reserved, not the other way around. An author has to manually give up his rights, eg with a license agreement.
Think about an example: someone makes Chrono Trigger 3D. It's wildly popular, and Square-Enix sues to stop it, because it violates their copyright. Now what? Does it go public domain, meaning that since Square-Enix owns the copyright and trademarks, that they can take the 3D game and sell it as their own? Of course not, the creator still owns the copyright. But since it's illegal, he can't distribute it. However, Square-Enix can in turn buy
his rights to the 3D game, and then sell it. But they don't get the rights for free. By default -- if it's illegal, then nobody
has the right to distribute it.
If the patches aren't legal, then the rights holders could demand you take things down as well. They could take legal action against you too, if they don't mind bad PR.
And if it is legal, RHDN is in the same predicament. Either way, by ignoring an author's takedown request, you are making yourselves liable for copyright infringement claims. If this concerns you in the least
, and you even slightly doubt me on this, you should consult a real lawyer.
Now, to play the devil's advocate ... what ROM hacker out there has the resources to issue a valid DMCA takedown notice, and/or to take you to court, with lawyers, court fees, and all that? And all for work distributed free of charge to begin with (eg little to no monetary damages)? Not going to happen.
The translation scene has always came off to me as extremely
uninformed regarding copyright law. From someone threatening to sue me because my font looked like his (fonts are not copyrightable -- TTFs and such are a gray area, as they are claimed to be "software", but raw pixel fonts are not for very justified and obvious reasons), to not even knowing that the Berne Convention exists, to never specifying a license for their works anywhere
, to calling it "copywrite". And on and on.
Essentially, it comes down to two choices:
1. If you don't care about copyright:
... you accept that the files you're hosting are, at the very least, questionably legal in the first place. So why start respecting the rights of those in the community, but not the companies who created the games in the first place? It's a double standard to do so. Shield yourself using the DMCA, and require that end users, not staff members, upload all new content. Now you only legally have to remove it upon receipt of a DMCA takedown notice, and you will not be held liable.
2. If you do care about copyright:
... and you believe the files hosted here are legal, then you really should demand a valid license to the work you host. Licenses such as the GPL exist for a reason: they guarantee that distribution rights cannot be retroactively revoked. As it stands, I don't know of any fan translations (apart from ones I've worked on) that have actual licenses specified. Without specifying, the copyright owner retains all rights. Including the right to distribution. Even if the work itself is a copyright infringement in the first place!
This really shouldn't be hard. Require future content, starting from now, to be under a list of acceptable licenses. Anything here already, leave the old rules in-tact. If they ask for removal, take it down. If they ask for removal, but explicitly
placed the work; tell them to go fuck themselves, or something to that effect.
There are lots of nice software licenses: BSDL, LGPL, GPL, etc; and lots of nice creative licenses, eg Creative Commons. Make a list of acceptable ones, and start including a license field with each new hosted file.
As for the issue itself -- my personal opinions are irrelevant. But for what it's worth, I'm quite happy with the presentation of my works on this site. Nightcrawler was very quick to remove a now-useless Snes9X bugfix patch for me when I asked. I'm (hopefully) mature enough at this point to not go demanding all my work be pulled because Nightcrawler or someone else here hurts my feelings, so it doesn't really affect me.
Sadly, people already host my emulator on various porn sites to get click-through revenue. So I doubt even if RHDN went that route, that it would really bother me much.
I don't know what I'd do if I were in charge of this site. I have nothing but respect for those staff here subjecting themselves to this endless drama for no profit whatsoever.