Nintendo’s attacks against anything capable of copying a video game are not just a historical curiosity.  The company, along with the rest of the video game industry, continues to sue these copying devices to this day.  The most recent lawsuit is against the R4, a Nintendo DS cartridge that fills many of the same purposes as the old Game Boy Advance flash cartridges.  The device bypasses the protection on the system and uses a micro SD card to run pirated games, homebrewed games, or anything else capable of working on a Nintendo DS system (playing music, programming, etc.).  Despite being fully aware that the device skirted the edge of legality, Japanese retailers continued to stock and sell the device to high demand (while explicitly not explaining what the device does).  Of course, Nintendo was not happy about this state of affairs, and proceeded to sue the companies that make and distribute the device.  54 other software companies joined the lawsuit.

Under the precedent set by the Game Boy Advance flash cartridges these devices are probably illegal.  It is easy to see why the video game industry wants them off of the market.  However, the consumer base clearly loves these devices.  The R4 apparently sold very well in Japan, and with the lawsuit the price of the device skyrocketed (see another article linked from this one).  Consumers seem to believe that there exists plenty of legitimate uses for the R4, not just playing old, illegally obtained games.  Consumers write homebrew applications that allow the DS (and also the PSP, although this is not the subject of the lawsuit) to do an incredible number of things.  The author even notes that he has meet people who jumped into game design by learning on hacked DS’s and PSP’s.

Clearly, the consumer base enjoys using the R4.  And while Nintendo might be perfectly within their rights to stop them, it could create massive ill will.  Being told that all of the hard work you put into a homebrew application that you created without breaking copyright law is bound to make anyone angry.  With a huge portion of the video game industry getting behind this lawsuit, it makes an easy target for the ire of the community.  The video game industry, it seems, has not learned its lesson.  Despite already angering many consumers with their attacks against any form of copying or emulation, it continues to press lawsuits.  If this path continues, then the industry risks turning into the next RIAA.

Lik-Sang was an Internet mail order business based in Hong Kong. Note the word “was”; the company was forced out of business in 2006 by multiple lawsuits from Sony regarding the early selling of PSP's in the UK. However, in the early 2000’s Lik-Sang was embroiled in a legal battle with Nintendo over the selling of Game Boy Advance copy devices (similar to the GB Flash Advance Linker). These devices allowed a consumer to either copy a ROM from a PC onto a blank cartridge, or copy a legitimate game cartridge to a PC. The court ruled in Nintendo’s favor that the devices were illegal, making the analogy of going after drug traffickers instead of drug addicts to curb drug use.

But this article is primarily a statement from Alex Kampl, one of Lik-Sang’s founders, after the decision was handed down. First of all, he notes the errors in the official Nintendo press release (which can be found via link from this article), including the fact that he had filed an appeal to the case, and that it was a summary judgment, not a full trial. In addition, he notes that the Hong Kong judge in the case was not an IP specialist (apparently there is not IP specialist in the Hong Kong judicial system any longer) and seemed to misunderstand some basic concepts about video game emulation. Kampl goes on to claim that since there is not copy protection on the Game Boy Advance, this particular section of law does not apply. Kampl also describes his disappointment that Nintendo is going after hardware used extensively by hobbyists, even by certain video game companies (apparently companies purchase flash cartridges from Lik-Sang for development purposes). Kampl claims that what he is doing is perfectly legal, and that presumption of innocence seems to no longer apply to cases of video game copying (“Nintendo doesn’t need to prove you are a pirate anymore, it is assumed you all are if you have the technical means to copy”).

Kampl’s claim that the Game Boy Advance does not have copy protection is more or less false; the system does have a form of copy protection (as explained in the Customs and Border Patrol ruling on the GB Flash Advance Linker). In addition, the analogy to drug trafficking has some logic to it, since it would be impossible for Nintendo to find and prosecute all video game pirates. But Kampl’s statement that the whole case should be embarrassing for Nintendo certainly seems to have merit. The purchase by video game developers of hundreds of flash cartridges clearly shows that they have some legitimate use in game development (and could be used by consumers to produce homebrew games), and as such is does seem that Nintendo is assuming that anyone who uses this device must be guilty. In addition, these types of cases clearly build up ill will towards Nintendo within the video game community, something that the company wants to avoid. Overall, while the decision may have been correct, Nintendo’s decision to pursue this case may have been a mistake.

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 is Nintendo’s legal page and list of frequently asked questions (FAQ).  Many things on this page are completely unsurprising.  For instance, Nintendo defines terms such as copyright, patent, and trademark, along with explaining what ROMs and emulators are.  Nintendo very clearly has a zero tolerance policy towards emulators and illegally distributed ROMs (it refers to emulators that play illegally copied software as “the greatest threat to date to the intellectual property rights of video game developers”) and refuses to legitimize any attempts at emulation.  Nintendo also makes it clear that the exception of the law allowing backups does not allow a consumer to download a ROM of a particular video game (as the company notes, it is not a “second copy” law).  This exception, it explains, only refers to an owner making a copy to ensure that, in the case of the destruction of the original, they have a usable alternative.  However, later in the FAQ, Nintendo explains that game copying devices are illegal, since they allow for the illegal uploading of ROMs to the Internet. 

Nintendo’s absolute refusal to legitimize any emulators, while completely expected, is unfortunate.  Emulators are completely legal, and, considering how widespread they are, are here to stay.  It would be nice if Nintendo accepted this fact, and tried to find some middle ground (the Virtual Console on the Wii system could be seen as a sort of middle ground).  The classification of emulators as “the greatest threat” is a little excessive; emulation tends to focus on previous generations of video games, which bring in little revenue for the companies.  And even if emulation was such a large threat, the fact that it is legal means that Nintendo needs to live with the existence of emulators.

Most interesting is Nintendo’s understanding of the backup copy exception.  As Nintendo explains, you cannot simply download a ROM of a video game that you already own, since that copy is illegal.  A legal backup, however, seems impossible to create, since Nintendo classifies all game copying devices as illegal.  Without a legal means to copy a video game, Nintendo has essentially made it impossible for a consumer to create a backup copy of a video game that they own.  Nintendo provides no solution to this dilemma, and in all likelihood does not want a solution to exist.

Another landmark emulation case, although slightly different from the Connectix one.  Bleem was another emulator for the Sony Playstation, and Sony sued it for the use of copyrighted images on their packaging.  Basically, on its packaging Bleem compared what a video game looked like on a Playstation vs. what it looked like on the emulator.  To do this, they used screen shots of Sony video games, which Sony contested.  Bleem, of course, claimed fair use.  The court decided in agreement with Bleem, noting that the use of copyrighted images fell under fair use because it was comparative advertising.  Since Bleem is a direct competitor to the Playstation, it needs to be able to use copyrighted material in order to make a successful advertisement.  Sony even claimed that Bleem was hurting the market for screen shots by using them in advertising, but the court shot that argument down as well, stating that Sony could still use the screen shots in advertising if they wanted to.  Also, since a screen shot is an absurdly small portion of the total work, Bleem is not actually copying that much from Sony. 

Similar to the Connectix case, the Bleem case drove home to the video game industry that contesting emulators themselves would lead nowhere.  With emulators being fully allowed to advertise using copyrighted video games, there was no need to hide their real uses.  Emulators and their creators are free to proudly display the abilities of their systems, without fear of any legal reprisal.  This makes it much easier to distribute a particular emulator using advertising, and in turn makes emulators much more widespread.  If this decision had gone the other way then the difficulty in advertising an emulator (remember, you wouldn’t be able to use any copyrighted shots in the advertising) would have been a huge obstacle to distribution.  But, without any legal recourse to stop the distribution of emulators or make them harder to spread, the video game industry needs to focus on the people illegally distributing the actual games, not the programs that play the games.

The definitive video game emulation case. In the late 1990's, Connectix created the Virtual Game Station, a commercial emulator designed to replicate the Sony Playstation on a PC. In doing so, they necessarily had to copy elements of the Sony BIOS (built-in operating system (the software that runs the Playstation)), but they claimed fair use. The court agreed, noting that law stated that disassembly could be considered fair use when it is the "only way to gain access to the ideas and functional elements embodied in a copyrighted computer program." Since Sony had provided little information about their BIOS to the public, Connectix could only gain access to it by taking it apart. The court also found VGS to be "moderately transformative"; it transfers the Playstation to a new platform, and thereby expresses the product in a different fashion. And since the VGS is transformative, it is not really a replacement for the Playstation. The court also ruled on the claim that Connectix tarnished Sony's Playstation name. Although the VGS does not play games as well as an actual Playstation, the court did not find that this would result in the VGS hurting Playstation's good name

This case follows sound logic, and clearly sets out the argument that emulation itself is perfectly legitimate. It clearly outlines exactly how Connectix copied Sony's BIOS, and explains why that path resulted in VGS being fair use (and in doing so, more or less created guidelines as to how to ensure the legality of an emulator). More importantly, this case made it clear to video game companies that contesting emulation itself would not succeed; if video game companies were intent on stopping piracy, they would have to go after the actual copies of the games, not the emulators. Since ROM files are much more prevalent than emulators, this decision in essence made it much more difficult to stop video game piracy, and forced companies to allow the creation of dozens of free emulators.

First, some basic background. VNES (stands for Virtual NES) is an online NES emulator, written entirely in java. The site, based in the US, has a huge catalog of original NES games, which are completely free to play online (no downloading required). Now, obviously a whole bunch of legal questions come up here, most notably the claim that this is massive copyright infringement. The vNES legal page attempts to address these claims, and provide a justification for the legality of the site, through six main points.

One of the most notable arguments is the claim that the website constitutes fair use. It states that the website is noncommercial, only uses cartridges out of the market for 15 years, keeps copies of entire works, and that it holds works "vastly technologically inferior" to modern works (and then claims that these facts sufficiently satisfy the four factors). It also claims that, under Sony v. Universal, this emulation simply constitutes time-shifting, and therefore must be fair use. But by far the most interesting claim that they make is their classification of themselves as an archive (under 17 U.S.C. § 108). As an archive, the claim goes, they should be able to make their works available to the public. Also, they only provide games that they have physical copies of in their offices.

Now, their fair use claim in tenuous at best. The fact that they use entire works actually hurts their case as opposed to helping it, and just because the works are "vastly technologically inferior" to modern games does not mean that companies cannot still profit off of them (as remakes clearly demonstrate). Also, this isn't time-shifting so much as space-shifting, and the legality of space-shifting is not well tested in the courts. However, the archive claim is interesting, and could provide a valid loophole for emulation sites to provide video games to consumers. It relies on the games only being playable online though (no downloading (other than normal, incidental downloading) is involved). And the site has been contacted by the ESA (after which they removed all games for which they did not own physical cartridges), so presumably the industry is aware of it. This could provide an interesting middle ground for video game companies and consumers.