The RIAA is not a popular name amongst many music consumers. Its actions against potential copyright infringement have created a huge backlash amongst the community, and it has done little if anything to alleviate the general ill will. Now, the video game industry risks following the same path. For years, the industry has attacked video game emulation and the copying of cartridges as detrimental to the industry and illegal. While it has succeeded in many places (and failed in others), the gaming community has started to become angry. Unless some middle ground can be found (such as has been attempted by websites such as vNES), this pursuit of piracy could turn the ESA 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.