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.

This is a news item, which discusses a list of four exceptions provided by the Library of Congress, which may be legal ways to circumvent the arm of the DMCA (Digital Millennium Copyright Act) and allow limited impunity to bypass some forms of copy protection. In relation to the theme of Video Game Copyright law, it is perhaps not a hugely relevant list of exceptions, but it does effectively illustrate that there is somewhat of a gray area in the Emulator/ROM issue.

The exceptions themselves include Internet filtering lists, programs protected by a dongle (any type of hardware device which is necessary for activation), programs in obsolete formats, and ebooks, which do not contain accessible features for disabled people. While this type of “legal” circumvention of DRM measures does not create the huge impact for those who wish to see copyright restrictions loosened, it may possibly have rejuvenated the emulator debate among its proponents. The vast majority of the emulators that exist in downloadable formats on many Internet sites are made from older video game consoles that have been long out of production. The ROMs that the emulators run are ripped from games that are likely older than a great portion of those who download them. It is this very argument through which many form the moral justification to download and play these ROMs. Such an idea could even be expanded into one about the promotion of arts and sciences, or the cultural benefit of generations too young to immerse themselves in the classic games.

The article uses the short reach of these exceptions as a way to illustrate the need for more rights to be given. The author makes the point that the Library of Congress has found itself in the unique position of being able to “poke the law” and get the attention of the Government and bring these issues into light. Being from a technology-oriented site, the article is clearly in favor of loosening restrictions. However, it is not so much a call to arms as it is a reporting of the exceptions themselves as they were released. The author’s point of view is apparent and he uses the news to bring up the questions about its possible impact on the emulation debate. There is perhaps no issue that is of more importance to the subject of Video Game Copyright than this. It is through this debate that the future of the industry will transform.

This is a journal article, which is a comprehensive look at the Video Game Emulation debate. Its layout is filled with loads of historical facts and analyzes the nuances of the debate in several chapters according to each aspect. In spite of the heavy loaded nature and its plethora of facts and technical data, it does all of this to arrive at a conclusion regarding the suggestions of the authors towards finding an amicable way to solve the legal disputes surrounding copyright infringement.

Its argument is not established early on in the article, but it lays the groundwork for it by setting the debate itself into context. It begins by explaining exactly why there is a need in the first place for the emulators and how the emergence of these have only been magnified by the rise of the Internet and peer-to-peer networking. Then it devotes some chapters to examining the methodology and technical data that brought the emulators about. The economic ramifications are also discussed, at which point the direction moves towards the points of views of both sides of the debate. Several cases are cited examining the potential legality or illegality of the practice. Finally, it arrives at its conclusion, which gives the authors’ strategy for issues.

The argument given is quite adamantly against an RIAA (Recording Industry Association of America) type of attempt at simply eliminating the emulation community through endless litigation and bullying tactics. It also makes the case that Game Makers should embrace emulators by recognizing the consumer need and actually meeting that need themselves instead of persecuting the individuals from the outside who have taken the initiative to do it for them. Moreover, the claim is made that customer loyalty would be recaptured. The support of backwards compatibility among gaming consoles is another major suggestion placating consumer ennui and possibly extending the longevity of the product itself. A plethora of statistics is also given to solidify its points.

So what does all of this have to do with Copyright Law, specifically related Video Games? Much of it does, and much of it is technical data and statistics that is, perhaps inconsequential to the legal debate itself. Ultimately, the article serves as a well-researched cornucopia of information about the subject. The overarching theme of this is how legality is either upheld or circumvented in the industry. Piracy and copyright law go hand in hand. The arguments made by the authors are conventional ones, views more than likely anyone outside of a Game Developer’s office would hold. However, its methodology is very precise. It cites information in a very unbiased way and allows the reader to make up his/her own minds. This results in a very different experience for individual readers, yet at the same time brings the debate into the frame of mind that it wants. While probably more fact and data-oriented than the casual reader may care to stand, it accomplishes what it sets out to do in a very efficient way.

This is an early, perhaps arguably, the first case that directly addresses the legal issue of Video Game Emulators and ROMs. Decided in 1983, the controversy here was surrounding a device JS&A produced and sold commercially called the “Prom Blaster.” It was a device, which attached to Atari’s 2600 video game console and allowed users to create back-up cartridges or copies of Atari games. JS&A also sold the blank cartridges it required.

JS&A’s method of argument was that the device allowed users to create backups of the cartridges they owned for protection against “mechanical or electrical failure.” But given the massive library of games that already existed for the Atari 2600 system at that point, the Court did not find any other relevant non-infringing uses for it. JS&A’s other argument was that the Prom Blaster was intended to copy games sold exclusively by JS&A themselves. The Court found that argument weak since they only manufactured nine games and given the cost of the machine, it would not constitute any logical decision to do such. The burden on JS&A was rather light especially considering it came in the aftermath of the Sony Corp. of America v. Universal City Studios, Inc. case which demonstrated that if the device could justify any legitimate non-infringing uses, it could be within the scope of fair use. JS&A’s device could not reap any such uses. It’s failure to do so left the Court with little choice but to issue a preliminary injunction enjoining JS&A from selling, manufacturing, and distributing the Prom Blaster.

There have been many such devices as the Prom Blaster developed for many subsequent game consoles over the following years. But it was not until the rise of the Internet did the practice of emulation really start to make any serious kind of detrimental impact to the industry. When all one needs is a computer and Internet connection to acquire an emulator of a game console and download an entire library of games, this became a danger to them in an exponentially greater way that JS&A could compare. Unlike physical counterfeit copies, this could lead to a form of piracy where the supposed loss and damages would be inestimable. That perhaps is why the JS&A decision is so important to the issue of Video Game copyright. There had been cases regarding software programming codes, but this was the first one to specifically call video games to the forefront to be judged in its own merit of being a protected work of artistic expression.