One could say that Emulators, being essentially
the “Operating System” for games, are useless if the appropriate games are
not available. This assumption is
however incorrect. An Emulator is
useful as such, for it is a program that someone has spent much of his time to
write, mainly in order to improve and measure his programming abilities.
Once an Emulator’s user manages to “ease” the enthusiasm of the
first impression when he rediscovers an old favorite game, he soon realizes that he has in his possession an amazingly good program.
I, for example, found the most interesting part of Emulators being my
effort to comprehend how they work.
Not everybody however shares the same enthusiasm
or finds the same interest. “If
the sole purpose of an emulator is to allow the playing of a console game on a
PC, and the owner of the copyrights in that console game has not authorized the
copying, performance, display, or derivative work created when a console game is
played on a PC, then the creation and use of that emulator constitutes an
infringement of the copyrights in the console game”[103].
The purpose of writing an Emulator is not to
enable one to play a game; it is to reconstruct an old, most of the times,
system. In the words of MAME
Team “Even though MAME allows people to enjoy the long-lost Arcade games
and even some newer ones, the main purpose of the project is to document the
hardware (and software) of the Arcade games. There are already many dead Arcade
boards, whose function has been brought to life in MAME. Being able to play the
games is just a nice side-effect”. If
the motives behind Emulators were not those, programmers would not emulate all
titles, some of which can hardly be characterized as “commercially
successful”, but simply only the ones of their preference.
It would thus seem that Emulators are in line with the Industry’s
definition of legality.
What if one however was to suggest that all Roms
are illegal? [104] Before
addressing this question, it is preferable to put forward a more detailed
definition of Roms[105].
“A Rom is a binary file which can contain graphics, sounds, and program
code. For example, the Rom Image of Metroid is all the information contained
within the cart. The cart's information is transferred, or "dumped",
onto a computer by a person with the skills and resources to do so.
You can run them with the appropriate emulator”.[106]
If one was to mistakenly relate Emulators’
legality with the question of whether they are capable of loading the intended
software in its original medium, the assumption that all Emulators are illegal
would not be correct because some Emulators, admittedly few, such as VGS,
Bleem! and NeoGeoCD
are using CD-ROMs, i.e. the software in its original form, and not Roms, those
CD-ROMs being available for purchase by anybody, owner of the intended system or
not[107].
Let us disregard this fact though and assume that the software for all
Emulators comes in the “medium” of Roms.
According to this train of thought, all Roms are the products of software
piracy and Emulators are therefore illegal for promoting such acts; this however
again is not true. In order to consider whether or not a Rom is an infringing
copy, one must first examine whether a copyright holder exists and if so, if
this copy is an authorized or an unauthorized one by the copyright holder.
Although admittedly this is not the general
rule, some copyright holders, software programmers for the original systems,
have given their consent for their programs to be freely distributed in the
format of a Rom Image. An example
is the 1981 game called “Robby Rotto” by Jay Fenton, originally written for
Bally Midway’s Arcade cabinets[108].
Furthermore, many programmers have written games, referred to as
“home-brews”, for exclusive use with Emulators.
In theory of course, one could transfer the program to an appropriate
medium and use it with the original system but could not sell it as a game
endorsed by X for X’s system. These “home-brewed” games also come with a right for free
distribution. Finally, one should
mention some commercial endorsement which are Emulator-related.
HanaHo Games, Inc., the manufacturer
of HotRod “joystick” and Arcade PCs[109],
bought the exclusive rights and a license to distribute with its products a
number of Capcom’s games in the medium of Roms[110].
This action is significant for three reasons.
First, HanaHo’s products are essentially depended on the existence of
Emulators; without Emulators, few people would perhaps be interested in buying
them. This means that HanaHo must approve the existence of Roms for
it is to its commercial benefit. Secondly,
HanaHo not only approves the existence of Roms but also supplies them with its
products. Thirdly, and this is
probably the most important point, when Capcom decided to grant those rights to
HanaHo, it did so being aware of the abovementioned facts. Thus, one can logically conclude that Capcom, being one of
the most respected Arcade manufacturers if not the most respected,
supports the existence of Roms[111].
Another paradigm from the Videogame industry is Sega which decided to
release in the US a game pack called “Sega Smash Pack”.
This software from Sega was based on a version of the KGen Emulator and
was of course running Roms.
Having mentioned the above, one understands that
all Roms are certainly not counterfeit copies and can of course draw the
conclusion that not everybody in the Videogame industry is against any of their
systems being emulated. The most
direct statement has been made by Hasbro regarding the Atari Jaguar console:
“We realize there is a passionate audience of diehard
Atari fans who want to keep the Jaguar system alive, and we don't want to
prevent them from doing that. We
will not interfere with the efforts of software developers to create software
for the Jaguar system”.[112]
Even if we
were to assume that the legality of an Emulator is related to the availability
of appropriate software, i.e. by disregarding CD compatibility refer to Roms
only, the existence of legally obtainable Roms justifies the existence of
Emulators. The fact that Emulators
can be also used in conjunction with wrongfully acquired Roms is not sufficient
in order to proclaim Emulators illegal. In
order for an Emulator to be illegal, it must be proven that the sole purpose of
its existence is to run infringing copies of software; not merely being able to
also do that. The fact that a
“legal” product, such as a knife, can also be used for “illegal”
purposes, such as murder, does not render that product illegal.
This approach is not only consistent with logic, but is also a judicial
precedent in many jurisdictions[113].
The subsequent question that should born into one’s mind is the legal
position of Roms of commercially released games for which copyright holders
still reserve all their rights, as in the case of all Nintendo titles for
example. Does one by dumping a
cartridge creates an infringing copy? Should
this assumption be correct, and by relating Emulators’ legal status with that
of Roms’, it could effectively be argued that an Emulator of that particular
system is promoting the creation of infringing copies and is thus illegal.
In order to answer that question, one has first to determine the nature
of the product. A circuitry board,
be it in the medium of cartridge or not, can be potentially classed under two
titles; it can be deemed to be “software” in its conventional meaning, for
ultimately it contains instructions, or it can be seen simply as a semiconductor
product. There is a difference in
law between the two definitions and we shall address both instances, starting
from assuming that it is software[114].
The Software Directive, as we have previously discussed, covers all
programs regardless of the medium that they reside into. One can thus make the assumption that cartridges, for
example, are included within the definition of a program. According to Article 5(2)
of the Software Directive, “the making of a back-up copy by a person having a
right to use the computer program may not be prevented by contract insofar as it
is necessary for that use”. It is
common knowledge that everything in life, including the mediums that software
come into, is susceptible to destruction either by accident or by “tear and
wear”. One can thus effectively
argue that backup copies are always “necessary”.
Many companies acknowledging this fact have included such right in their license
agreement[115].
An innuendo rises regarding the instances where companies offer to
substitute the damaged product with a new one.
One could say that a company by doing so, removes in effect the right to
backup a software since it may no longer deemed to be “necessary”; this
however is not clear by the Directive[116].
In reality, most game software comes with a “90-Day Limited
Guaranty”, be it a PC game in CD or a cartridge for GameBoy, under which the
company offers to replace the damaged product usually, but not always, free of
any charge. After the lapse of this
period, damaged copies are either substituted at a considerable amount[117] on not substituted at
all. This limited time period of
availability for substitution of the damaged product directly from the copyright
holder suggests that the backup “right” cannot be defeated by the 90 days
warranty. Bearing in mind that the
Directive covers programs in any form, this should also extend to create a
backup in any form. Few would
disagree that in the absence of a CD-Recorder one still has the right to backup
a program in Floppy Disks, despite how time consuming this might be.
If we were to disregard that the Directive covers programs in any form,
we would then face a problem in relation to “circuitry-based” software, this
being the dominant medium for Videogame systems’ software.
According to this train of thought, the change of storage medium,
necessary since to create a duplicate of a circuitry is not something possible
apart for industrial units, would amount to the resulting copies being characterized
as infringing. The counter argument of course is that the transition of a
cartridge’s, for example, instructions to a ROM Image should not be viewed as
an “adaptation, translation, arrangement or other alteration”, since the
person making the copy does not deny that this is a copy of the rightholder’s
program, but rather as a technical necessity for backup purposes[118].
After all, the right to backup does not come with any restraining
provisos. In support of this argument, reference can be drawn here to the practices
concerning blind people[119].
It is acknowledged as a technical necessity that books must be
“translated” to Braille in order for blind people to be able to read them.
If we were to take a strict approach, this translation would constitute a
copyright infringement since the Braille edition of the book is in effect an unauthorized
change of medium within which the exact same text is contained. This however would in effect deprive the proper use of the
book from a person who has lawfully acquired that book[120].
It therefore seems logic, even if we were to interpret the Directive in
that manner, for the law to accommodate “exceptions” where needed, in order
to maintain the rights that it confers.
On the other hand, circuitry-based software can be characterized by the
medium that it is comes into, i.e. as a semiconductor[121].
In this case, the appropriate Directive to look at would be the
Semiconductors Directive[122]
and one should address this instance, for Software Directive’s provisions are
“without prejudice to any other legal provisions such as those concerning
patent rights, trade marks, unfair competition, trade secrets, protection of
semi-conductor products or the law of contract”[123].
Although going into deep analysis of the Semiconductors Directive does
not serve our purposes, the following points should be mentioned.
The purpose of the Directive is not so much to protect the unauthorized copying of a semiconductor but to insure that only the proprietor can benefit,
in the commercial sense, from it. Hence,
Article 5(2) states that “a Member State may permit the reproduction of a
topography privately for non commercial aims”.
Most Member States have permitted such action[124].
Reproduction thus for private non commercial aims, backup being such, is
therefore permitted. In any event, the instructions contained in the circuitry,
i.e. the game, would probably not be covered by the Semiconductors Directive
since, protection is not extended to “any concept, process, system, technique,
or encoded information embodied in the topography”[125].
Same would probably be the conclusion if we were to consider the emulated
parts of a videogame system as semiconductors, not only by reason of the
abovementioned Articles, but also due to consideration of the right to reproduce
a semiconductor for the purpose of “analysing, evaluating or teaching”[126],
as well as create a new one based on reverse engineering[127].
It is therefore highly unlike that any aspect of Emulators, be it at a
programming level or at a “software” level, will be deemed as infringing
under the Semiconductors Directive.
A final matter for consideration regarding the
legal status of Emulators and the software that they use, be it in the form of a
ROM Image or not, is related to technical measures taken by the industry in
order to prevent “access” to its products[128].
With the digital and network revolutions, copyright infringements have
become more frequent and their effects have impact at a greater scale.
For example, it takes one to upload a program to the Internet in order
for the whole world (literally) to acquire it, without paying any money to the
beneficiary whatsoever. In response
to this legitimate, and other not so legitimate, considerations many programs
are now protected with various techniques.
With regards to our immediate interest, the technical measures concerning
us are those of data encryption and copy protection.
The problem with those technical measures is that they aim at restricting
access to a program’s core and copying it.
These might be legitimate measures in order to prevent derivative works
and infringing copies from being created, but at the same time forbid one from
exercising his rights, i.e. decompilation and backup. In other words, they
confer copyright protection to elements that are explicitly not protected.
As of course any poison has its antidote, any protective measure has a
circumventing measure. So, now the
question is not if such protection is legal[129]
but rather if circumvention is illegal. In
the context of Emulators this point is crucial, for all the modern videogame
systems and their software are somehow protected[130].
The circumvention of protective measures is conducted through appropriate
software, hardware or a combination of both.
Addressing this exact point, Article 7(1)(c)
of the Software Directive penalizes “any act of putting into circulation, or
the possession for commercial purposes of, any means the sole intended purpose
of which is to facilitate the unauthorized removal or circumvention of any
technical device which may have been applied to protect a computer program”.
This however is provided, according to Article 7
“without prejudice to the provisions of Articles 4,
5 and
6”.
Circumvention is thus permitted for the purposes of decompiling, reverse
engineering and creating backups. This provision is also important for it
probably also permits the sale of “dumpers” under the Amstrad v BPI[131]
reasoning. Interestingly, Sony in
both litigations concerning Emulators, put forward as a claim that the VGS
and Bleem! are facilitating software piracy
because they do not include a mechanism found in the Playstation which does not
allow one to run a copied game; this claim of course
failed. It is worth noting
here that the US has taken a strict approach regarding circumvention, focused
mainly on banning devices that facilitate circumvention rather than the act, and
that the Commission in a proposal has somewhat followed, although in a milder
manner[132].
This however seems to be a bit controversial, bearing in mind that those
who press for such legislation are also those who produce CD-Recorders, blank
media etc.
Having mentioned the above, it should be well understood that those legal
facts and speculations apply with reference to legal owners of licensed programs
only, creating their own backups. Thought
it is legal for anyone to own an Emulator, it is not legal for everyone to
acquire a ROM Image. If however one
is to search the Internet, he will find a plethora of ROMs to download.
Although I will not try to tackle the question of Internet Service
Provider liability and the question of Internet in general, I would like to put
forward the following, perhaps radical, views for the reader’s consideration.
It is well stated in all software licenses that by purchasing a software
on does not become the legal owner of a program; he is merely licensed to use
it. Following the reasoning of
licensing, it can be said that one does not acquire the right to use something
tangible, i.e. a particular CD-ROM, cartridge or whatever, but the right to use
the program in general. It can thus
be argued that by downloading the dumped ROM Image of another’s cartridge one
does not acquire a backup that he is not entitled to have, provided of course
that he is indeed a licensed user, since he is acquiring the program that he has
acquired a license for. Although
this theory could fail on the grounds of “one” backup copy[133],
the counterclaim is that every licensed user acquires “one” backup.
Assuming that this does not stand, a further question would be if a
person has the right to upload material to the Internet that may potentially be
downloaded by unlicensed people. Since
new computers such as Macintosh i-Macs do not come with a floppy drive, the
suggestion being that the natural form of backup nowadays is that of uploading
to the Internet[134],
one could argue, in a parallelism with the Amstrad precedent, that it is not the
“uploader’s” fault that someone may download data not entitled to.
This allegation could stand in Europe but not in the US, since Internet
there has been deemed to be a “public forum”[135].
What about FTP[136]
sites, especially when the actual FTP server is one’s Hard Disk?
An FTP cannot be characterized as a commercial forum because access to it
is conditional and it is essentially a designated invitation to one’s house.
Given the enormous illegal exploitation that such an approach would have, it is highly probable that a court would find against such suggestions. Still, if we were to disregard the policy considerations, one has to admit that in principle those speculations have a legal basis.