Videogames, Consoles or
Arcades, are classified under law by logic, in the absence of another
classification, as computers. Judge
Canby, of the United States Court of Appeals for the Ninth Circuit, while
submitting his opinion in Sony
Corporation of America v. Connectix Corporation
[27],
referred to the Playstation Console as “essentially a mini-computer” and
this comment is accurate, since all Consoles and Arcade cabinets work with
technology either identical or similar to those of computers[28].
This approach is further strengthened by the fact that companies such as
Sega and Sony have released the Dreamcast and Playstation 2 Consoles
respectively, with attributes such as Digital Versatile Disk (DVD) playback and
Internet connectivity, functions which one would anticipate rather from a
computer and not from a plain “console”.
For those reasons it is perfectly normal that reference to computers is
made and that terms familiar to computers and computers as such are used in the
context of this dissertation.
Videogame Emulators, as it has been previously mentioned, can be technically divided into two categories; Arcade Cabinet Emulators and Game Console Emulators. For the purposes of law however, it is preferable for one to treat them the same. This is so because similar reasoning and technology applies two both categories. For example, MAME, an Arcade Cabinet Emulator, and VGS, a Console Emulator, were both designed so in order to emulate instructions given by hardware and load programs written for that particular hardware. To succeed in doing that, the authors of the respective programs in both circumstances had to study the original system and then write their own program. A synopsis of the “production” process should be given here, in order for the reader to able to comprehend how the law works and where the fine line between an act in violation of Intellectual Property Rights and a permissible act is drawn.
Although everyone accepts that software is code put in a given order, few
perhaps would realize that what we traditionally consider as being hardware,
apart from the nuts and bolts, is in essence software.
A cart, for example, might be full of wires, conductors and pins but
inside this “hardware” are contained instructions regulating the function of
the whole system. Those
instructions are essentially a program. A very accurate, and relevant, example is the BIOS[29].
A BIOS contains information, usually in the mode of a program, and is
located in a ROM[30]
chip. This software hybrid is also
called “firmware”. Furthermore,
in order to speed up the processing speed, those instructions can be literally
“hardwired” onto a chip, an example being the Application Specific
Integrated Circuits (ASICs). The
reader must thus come into terms with this “software-ish” nature of the
hardware surrounding him and to his assistance, if the explanation and examples
provided above were not to his satisfaction, are Article 1(2)
of the Software Directive[31]
and Mars (UK) v Teknowledge[32].
Then question then is,
how can one gain access to this information, i.e. the code.
Machines, no matter how complicated they become or evolve, save for the
not so frequent truly pioneering revolutions, are simple to their basis and
operate in a given manner. A widely
understood example is the automobile which, after so many years of evolution and
the transition, for example, from a maximum speed of 50 mph to 150 mph, still
relies on a shaft and four wheels in order to operate effectively.
Similarly, in order for any computer to comprehend the instructions given
to it, be it a new one or a very old one, those must be in Machine Language
which does nothing more that regulating “electricity” switches, “I”
being for on and “O” being for off, “I”s and “O”s being referred to
as binary digits. The question then
should be how is it possible for one to program a computer.
Although a programmer can write his program directly to Machine Language
or a Low-Level Language[33]
this is rarely how it is usually done nowadays, for it is extremely difficult
without any real advantage for most purposes as compensation.
Instead, most programmers use High-Level Language in order to write a
program, such as BASIC, Pascal and C, the benefit being that High-Level
Languages have a “comprehendible” structure based on a mixture of English
words and mathematical formulas, containing commands such as “GOTO” and
“IF X=10 THEN FD10”[34].
Once a programmer is finished with his program written in a language
other than Machine Language, this programme being called the “source code”,
he then assembles it, in the case of a Low-Level language, or compiles it, in
the case of a High-Level Language, i.e. transforms it, into “object code”,
i.e. a program written in Machine Language, in order for his program to be
understood by computers. The object
code is said to be in binary format for it is a command string of “I”s and
“O”s and it is in this form that programs are usually distributed to the
public.
The task of a programmer writing Emulators is to
create a program resembling the functions of a system.
Acknowledging that, one anticipates that the programmer needs to
comprehend the original program in order to be able to write his own.
In order to do this, the programmer must have the original program in a
format understood by him, i.e. he must have the source code of a program[35].
Obtaining the source code of a program can be done in two ways; either
the person or company holding the copyright to the program can release the
source code in order to assist programmers to write programs compatible with
their programs, an example being Microsoft in relation to the Microsoft Disk
Operating System (MS-DOS or DOS) and the Windows Operating System’s
Application Programming Interface (API)[36]
and AT&T in relation to the UNIX Operating System, or a programmer, through
the use of suitable hardware and software, can decompile/disassemble the object
code in order to obtain the source code. Those
are acknowledged technical necessities and cannot be circumvented, their
application of course being far wider than in the context of Emulators only.
For example, the mere fact that Windows9x is the Operating System which
most computer users have installed in their computers, should prove to be a
reasonable ground as to why programmers, others than that of Microsoft’s own,
want to write applications compatible with Windows.
The legal problem of course is self evident.
Computer programs, being considered by Article 1(1)
of the Software Directive as “literary works”[37]
are entitled to copyright protection, meaning that one cannot simply copy the
code of a program and under a new name claim that he has a program of his own.
Although the notion behind copyright is as simple as that, the law
provides a far more detailed analysis on rights, restricted acts and exclusions
upon which we shall now elaborate.
Computer Programs, being considered as literary works under law, are afforded
the protection of copyright. Although
the term Intellectual Property Rights also includes, apart from copyright,
trademark and patent, trademarks are usually not violated by Emulators for they
are not used at all[38]
while computer programs are rarely granted a patent certificate in order to a be
able to afford such protection in the first place[39].
Furthermore, it is more difficult and time consuming for a claimant[40]
to establish a patent infringement than it is to establish a copyright
infringement and thus the copyright “route” is preferred.
Since the only available recent litigation is copyright-centered it is
appropriate for us to concentrate upon copyright.
A creator enjoys copyright protection for the
mere fact that he created something, without the need to comply with further
formalities in order for his work to be protected by copyright[41].
For example, this dissertation is copyrighted by Takis Tsiricos simply
because he went through the trouble of writing it.
Since there is not one single European Directive or Treaty listing all
the restricted acts, leaving this “consolidating” task for national
implementing legislation, it is worth looking at the relevant English statute
which serves as a typical example[42].
According to s.16 of the Copyright, Designs and Patent Act 1988[43],
acts restricted by copyright, permissible only under the express authorisation
of the copyright owner, are[44]:
a.
to copy the work
b.
to issue copies of the work to the public
ba. to rent or lend the work to the public[45]
c.
to perform, show or play the work in public
d.
to broadcast the work or include it in a cable programme service
e.
to make an adaptation of the work or do any of the above in relation to
an adaptation
In relation to our given subject, the applicable provisions are those of adaptation and copy. Adaptation, according to s.21(3)(ab) of the CDPA 1998 as amended[46], “in relation to a computer program, means an arrangement or altered version of the program or translation of it”, whereas translation, according to s.4 “includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code”[47]. Regarding copying, it is understood that literal, i.e. straightforward, copying without the copyright’s owner consent is a restricted act; such examples being the products of software and videocassette piracy. The problem rises with respect to non-literal copying, for the purpose of copyright is to protect one’s expression and not the underlying idea to that expression[48]. This dichotomy of a work between idea and expression is reasonable for otherwise copyright law would produce adverse phenomena both at a social and technological level. For example, if we are to disregard the copyright expiry limits, scientists would not be able to study effectively the atom for it was first conceived as an idea and expressed by the Ancient Hellene Democritos[49], nor would for me to write this dissertation be possible because, at least in parts, it is based on ideas of others; the result would have clearly been disturbing. Emulators, as one might have anticipated, raise questions in the context of non-literal copying and not literal copying[50]. To elaborate further on general principles of law would be futile; instead we shall proceed to examine Emulators under the prism of the Software Directive.