This article, by Chuck Cochems, is an interesting look into the mind of a video game consumer. This particular consumer is annoyed at video game companies (“corporate fat cats”) for their unending bashing of video game emulation. He feels that they are simply out to make as much profit as possible, and do not really care about what is right or legal. However, what starts as just a long rant against the industry morphs into the author’s attempt to find a legitimate, legal defense for video game ROMs. After discarding all of the traditional defenses, he turns to the Betamax case, and focuses on what he refers to as “the personal use defense.” Through his reading of the decision, the author comes to the conclusion that ROMs made for personal use could not be infringing. He also applies this personal use logic to the DMCA, claiming that since a personal use could not possibly be commercial, the DMCA does not apply to copies made by consumers (he also notes catch-22 inherent in the DMCA, that nobody can legally provide the equipment to make a legal backup copy of a video game). So, there does exist a legal means for a consumer to make backup ROMs of a video game.
While the author makes some valid points, a lot of his logic seems to fall flat. The Betamax case cannot be applied to space-shifting quite as easily as Cochems might think, even if it only applies to personal use. And not every personal use is non-infringing; it is clearly possible to infringe on someone’s copyright without selling or trading the infringement. Also, he simply waves the DMCA away with a wand and the magical words “personal use.” This is an unlikely scenario at best, and downright wrong at worst. However, the true power of this article is to demonstrate how important this issue is for a significant segment of consumers. It is clear while reading this article that Cochems cares passionately about video game emulation, if only on an ethical level. He is “sick and tired” of the attempts by the video game industry to stamp out emulation, and he is looking for any legitimate argument to ensure the legality of video game ROMs. The video game industry wants to avoid creating a consumer base that predominantly resembles Cochems. Otherwise, they could find themselves in the same position as the RIAA.
This article from Wired magazine is primarily an interview of Hilary Rosen, at the time head of the RIAA and an important Washington lobbyist. However, it also showcases the tremendous consumer backlash against her and the RIAA following the Napster case. The article opens with Rosen at a debate concerning music file sharing at Oxford University, in which she is repeatedly attacked by a crowd of students. It moves to describe how she became a powerful music lobbyist, and how she handled percieved threats to the music industry. She notes that she tried to explain to the music executives how important the digital frontier was, and that ignoring it could lead to disastrous consequences. Explaining that the executives actually consider her to be too soft on these issues (apparently these execs still want to put teenagers in jail), she describes how she encouraged companies to embrace the internet and start their own online music distribution systems.
This article's description of a lobbyist is interesting, but much more fascinating is the vitriol of music consumers. They see Rosen as "the Unabomber in a pantsuit" and "the Antichrist" (the debate at the beginning devolves into simple attacks agains the industry and Rosen). All because she tried to prevent the illegal distribution of music online. The article notes that "To some extent, at least, the record companies have themselves to blame," and it's correct. The RIAA, by going after file sharing so forcefully and determinedly, created this huge backlash by its own consumer base.
What does this have to do with video game emulation? Everything. If the ESA goes after emulation in the same way as the RIAA did file sharing, it is very easy to imagine a world in which the ESA commands just as much hate as the RIAA does. So far, it seems that no video game company has really created this much ill will amongst consumers, but if the industry doesn't step carefully that could change. Think of this article as a warning. If modern video game consumers have gotten used to emulation and downloading ROMs, a significant attack by the ESA could result in a tremendous backlash.