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.
