2002 UCLA J.L. & Tech. Notes 12

Video Game Emulation and the Law
by Andrew Leung

As the video game industry grew from a niche hobby to a multi-million dollar industry, video game enthusiasts look for new ways to enjoy their favorite games past and present. Their prayers were answered when video game emulators arrived onto the scene. There are now emulators for old game consoles like the Atari 2600 and for newer consoles like the Sony Playstation and the Nintendo 64. The emergence of emulators, however, has game console makers like Nintendo and Sony very worried. They see emulators as another tool for pirates to infringe on their intellectual property. Are video game emulators just another tool that contributes to copyright infringement, or do they serve more valuable and innocent purposes? Should emulators remain legal because of those purposes, or should the console makers' concerns over infringement carry the day? The answers to these questions will depend on the emulator in question.

Video game emulators are software that emulates a video game console's hardware and firmware on a PC. This allows the PC user to play games for the emulated console on the PC. Most emulators are freely available, though emulators released for commercial distribution have emerged. Emulators generally do not emulate the console exactly. However, emulators often add features that are lacking in the real console, such as "fast forwarding" the game and saving the state of the game so that you can pick up from that state another day. The game software actually accessed by the emulator depends on what console the software is emulating. If the emulator is programmed to emulate a CD-ROM based console, then the emulator would just access the original game disks. If the emulator is programmed to emulate a cartridge-based console, then the emulator would access ROM files, which are images of the ROM chips in the game cartridges and act as the "game cartridge" for the emulator.

It is the use of ROM files for the cartridge-based emulators that have drawn the wrath of console manufacturer Nintendo and the Interactive Digital Software Association (IDSA), the industry trade group. Their argument is essentially that the ROM files directly infringe on the copyrights of the cartridges and the emulators, by encouraging the proliferation of the ROM files, are guilty of contributory infringement and are therefore illegal. Nintendo has gone so far as to say that the only purpose of emulators are to play infringing ROMs and thus represent the greatest threat to video game developers' intellectual property today. Those who support video game emulation respond by arguing that the cartridge games are abandonware, software that are no longer commercially available or supported by the publisher (this is basically true for most cartridge-based games today; possible exceptions include Nintendo 64 and Game Boy games). Because the companies do not make money from such games anymore, they should become public domain and be accessible by all. In addition, the emulators serve valuable purposes in preserving these gems of video game history for future generations and allowing players to play games that were never released in the United States. It is not surprising that Nintendo and the IDSA would take the position that would maintain as much as possible the copyright holders' control over their intellectual property, while the pro-emulator crowd would take the position that would loosen the control that the copyright holders would be able to exercise. It remains to be seen whether the abandonware argument, while intuitively attractive to many, will prevail in a court of law.

For emulators of the Playstation, however, it is the emulator itself that has drawn the ire of Sony, maker of the Playstation console. Sony's attack against Playstation emulators is based on the fact that the emulators requires a copy of the Playstation basic input/output system (BIOS) in order the function properly. Because the BIOS is copyrighted by Sony, emulators that utilize an image file of the Playstation BIOS or was developed using information reverse engineered from a Playstation bios are illegal. Sony has in fact sued Connectix, maker of the Virtual Game Station (VGS), one of two Playstation emulators that were commercially distributed, using the BIOS reverse engineering argument. Sony also pushed a trademark tarnishment claim based on misattribution and difference in quality, In Sony Computer Entertainment Inc. v. Connectix Corp., the Ninth Circuit Court of Appeals ruled that Connectix's copying of the BIOS during development of the VGS was fair use because the copying was necessary to access the unprotected functional elements of the BIOS and the final VGS product did not contain infringing material. The Ninth Circuit also ruled against Sony in the trademark tarnishment claim. Sony and Connectix has since settled their differences with a joint agreemnt, with Sony acquiring all VGS related assets, all lawsuits related to the VGS resolved, and the VGS no longer sold or supported by Connectix. Bleem, the maker of the other commercially distributed Playstation emulator, did not survive the Sony legal onslaught. While Bleem did win against a Sony claim of copyright infringement by using game screen shots in Bleem's advertising, the financial burden from the lawsuit was just too much for Bleem, which has ceased operations. In the end, even though the two emulator developers survived the legal battles, Sony still managed to get what it wanted all along, halting of the distribution of the emulator.

The legal battle over emulators leads to questions, not only about whether there can be a solution that can satisfy all sides, but also about the nature of intellectual property law itself. One question is what the goal of intellectual property law should be: to give companies maximum control over their intellectual property and maximum extraction of profits from their intellectual property, or to allow companies to profit from their intellectual property for a truly limited time and then loosen the control by the companies over the intellectual property so that such property can enrich the public. Another question is whether the length of time for which a copyright is valid is too long and gives companies too much control, at least in the video game software context. Given that one of the recurring characteristics of the video game industry is planned obsolescence, a shorter copyright time may be desirable.

The emulator battle is merely one front in the overall battle for the balance of power of intellectual property law. No matter what the outcome of the emulator battle is, it will set a precedent for how other battles in the front will be waged.


Cases and Resources

Sony Computer Entertaiment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000), cert. denied, 531 U.S. 871 (2000)
Sony Computer Entertainment America, Inc. v. Bleem, LLC, 214 F.3d 1002 (9th Cir. 2000) (as amended on denial of rehearing and rehearing en banc)
Nintendo's Emulation FAQ, http://www.ninetendo.com/corp/faqs/legal.html
IDSA's Anti-Piracy Information, http://www.idsa.com/piracy.html (click the FAQ button on the left side to see IDSA's stance on emulation)
Gamespot's feature on abandonware, http://gamespot.com/gamespot/features/pc/abandonware (examines the abandonware argument in the context of PC games)
Takis Tsiricos, One Flew Over the Pac-Man's Nest: An Authoritative Study on Emulators and the Problems that they Pose in Relation to Intellectual Property Rights, at http://website/lineone.net/~takist/ (this is a much more technically detailed, much more in-depth look at the legal battle involving emulators, with a focus on European law)
Gordon Worley, Console Boycott == End of Emulation, http://homepage.mac.com/redbird/doc/emuboycott.html (a fan response to the crackdown on emulation)
Dan Shay, Emulating Another Napster?, The Internet Law Journal (Mar. 8, 2001), at http://www.tilj.com/content/iparticle03080101.htm







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