Video Game Emulators and Roms: How the Law Could Have Worked, and Should Today, to Protect Video Game Companies

Posted by Cyberbear on December 3, 2013 in Computer Software, Intellectual Property, Video Games |

Posted By: Paul Isso

 

320px-Ms_sidewinderSuper Mario Brothers 3.  Sonic the Hedgehog.  Zelda.  Space Harrier.  Double Dragon. The list can go on forever…

Those are just some of the nostalgic game titles that come to mind when reflecting on past Nintendo and Sega games that became international successes in the 80’s and 90’s – with gamers still playing those titles today.  And you didn’t have to be born in those decades to know what I’m talking about either; classic video games like Sonic and Mario have attracted players of all ages and skills, from all over the world.

A major issue concerning video games that still appears to not have been corrected is that countless game titles like those above are available, playable and distributed in the form of emulators and roms. Not to mention — some emulators and roms exhibit near identical gameplay in comparison to the original games that were being sold and distributed by the original creators.  The law today generally allows this, and it shouldn’t, because the creation, distribution and use of videogame emulators and roms is really just another form of piracy if you think about it; consoles and games are essentially being stolen from the copyright holder-creators and made freely available.

Major video game companies like Sega, Nintendo and Sony have in the past tried to demonstrate to courts that related forms of copyright and trademark infringement, as well as variations of emulation, are unlawful.  Unfortunately, none of their cases were able to elicit the creation of legislation that would make the creation, use and distribution of emulators and roms illegal — something the courts should have done. See Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,964 F.2d 965 (9th Cir. 1992); Sony Computer Entertainment, Inc., v. Connectix Corporation, 203 F.3d 596 (2000); Sony Computer Entertainment America v. Bleem, 214 F.3d 1022 (9th Cir. 2000).  The general result of these cases was that the acts committed essentially constituted fair use per the four factors under 17 USC § 107 and that reverse engineering was permissible, and thus the acts committed did not infringe copyrights or trademarks.

 I can understand how the courts applied the law in the above videogame cases, and can see why the courts could believe that emulators and roms constituted fair use in some respects; the idea that emulators and roms are transformative enough (i.e. emulators and roms don’t provide the exact copyrighted videogame controllers, sometimes don’t provide identical gameplay, or the actual console platforms or formats that the original videogame systems provided, etc.), and that the concept of reverse engineering was one of the main tools used in their creations to understand such videogame technology, are among the things courts have relied on in reaching their decisions in these cases. 

Still, the idea of emulators and roms being created and freely distributed on the Internet and various other electronic mediums without the consent of or compensation to the rightful video game copyright holders, and the fact that the law generally allows their creation, distribution and use, doesn’t seem to be morally right, or legally right for that matter, and shouldn’t be.  Emulations of copyrighted video game technology that took so much time and money to initially create by companies like Sega and Nintendo being generally legal permits wrongful and seemingly illegal conduct.  When you consider the tremendous issue of piracy that still faces our world today, you can see that the creation, use and distribution of emulators and roms is really not so different from the creation, distribution and use of MP3s and other files through unlawful programs like Napster, which made possible the illegal peer-to-peer (P2P) file sharing, distribution and downloads of music.

Perhaps summoning different legal doctrines and rules like the ones used in music piracy cases, such as A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001), as well as a similar analysis and reasoning, would produce a different outcome and make emulators and roms illegal by way of being categorized as a form of piracy — just the way illegal downloads of MP3s on file sharing systems are. 

Instead of allowing such acts regarding emulators and roms, the law concerning the subject should be treated very similarly to the way it treats the piracy of movie and music downloads.  As such, the aforementioned Sega, Nintendo and Sony cases should have been decided similar to the way the Napster case was decided.  Had that been the case, the law would be in favor of video game companies by holding that the creation, distribution and use of emulators and roms are unlawful because it’s a form piracy.  If it did so, or one day does so, the law could at least send the proper message that such acts regarding video game emulators and roms are wrongful and likely cause a decrease in the number of people creating and use video game emulators and roms.  Such a holding by courts would place such acts involving emulators and roms in the same realm as acts involving illegal music downloads.  In essence, such acts involving emulators and roms would thus fall under the federal anti-piracy laws we see in effect today that cover movies, music, and various other kinds of media that have the ability to be pirated.

In conclusion, it appears that the creation, distribution and use of videogame emulators and roms will continue to increase with time unless new law is made that categorizes such acts as being illegal. One such way to effectively do this is for courts to throw these types of acts into the same category as the movie/music piracy categories. If that happens, emulation of video games will be unlawful, and we can expect a drastic drop in the number of people and programs being created for purposes of video game emulation — just by virtue of the fact that committing such acts would be illegal. Obviously, it’s never too late for the law on this subject to evolve and change. The future of the video game industry is at risk. An anti-piracy position needs to be taken by the courts towards videogame emulators and roms to prevent further damage to video game companies and related industries. The proper changes in the law that are made today concerning this subject will provide more protection for the videogame industry tomorrow, as well as other industries that seek to keep further piracy from occurring. It is well settled that piracy is illegal.  The creation, distribution and use of video game emulators and roms should be illegal as well.    

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