Are emulators really an issue?

emulator

Update (4/30/14): What about emulators that aren’t just rip offs, you say? PCSX2, a PlayStation emulator for your PC, takes following the rules pretty seriously. In their configuration guide and FAQ they address the issue concisely:

You can get your own BIOS from your own Playstation 2 console.
You can use games from your own collection, or acquire them from a game store. Any other way is illegal and we have a strict policy about warez.
Case closed.

The Debate:

Nintendo, a game developer with a clear and concise opinion on their corporate services page, claims that emulators hurt the entertainment software industry’s revenue stream and Nintendo’s goodwill. Some argue that emulators are good for the industry because it promotes the brand to users and therefore leads to more sales.

What are emulators?

According to Classic Gaming, a site run by IGN Entertainment, Inc., “emulators allow your computer to act like the actual hardware of the emulated system….” For example, I could run a Game Boy Advance emulator on my smart phone and be able to play an old school game like Pokemon Red.

 

What makes it illegal?

ClassicGaming alludes to the illegality of emulators when it clearly states that creating an emulator “requires obtaining appropriate system information and then figuring out how to emulate the system hardware with software code.”

Because software is intellectual property regulated under copyright law, only the author has the rights to reproduction, adaptation, distribution, performance, and display (Hunter, 2012).

It would be easy to say that Nintendo and other game developers should just calm down about emulators since they give people access to old games that they love. It’s not like the people creating emulators are really making all that much money, and are often doing it because they and others are huge fans of the nostalgic games. Unfortunately, though, the law allows for a nice big loophole out of that argument.

According to 17 U.S. Code § 506 – Criminal offenses, “the term ‘work being prepared for commercial distribution’ means – (A) a computer program…if, at the time of unauthorized distribution – (i) the copyright owner has a reasonable expectation of commercial distribution;.”

This definition means that a game developer can argue that there is clearly a market for their old game and clearly has a reasonable expectation of commercial distribution. Therefore, it is up to the developer to decide if the distribution of its game is having an impact on its market.

Where Nintendo Falls

Nintendo dedicates a lot of space on their corporate legal information page to emulators. They throw a little weight behind the argument that it costs money to produce their games, and so therefore emulators are hurting their industry financially. They throw a lot of weight behind the argument that it’s illegal and so is piracy. Asking why Nintendo doesn’t approve of or legitimize emulators is “like asking why doesn’t Nintendo legitimize piracy. It doesn’t make any business sense. It’s that simple and not open to debate.”

Food for thought

So emulators are an issue because:

  1. Games are still under copyright and not yet in the public domain and the definition of commercialism of the copyrighted material is up to the developer
  2. They negatively impact the economics of the industry
  3. Promote piracy

I think game developers should have to prove that re-releasing an old game is a part of their business model, otherwise we have no indication that the emulators actually are impacting some sort of economic or financial status. However, if a game or console is still being sold or is in commercial use, then any sort of emulator that plays that game or acts as the console should be illegal.

The spirit of copyright law is to promote creativity among our society. This spirit can also be used to argue for or against emulators. One could argue that converting hardware to software is a tedious and creative task, meaning that developing emulators is a creative process and therefore emulators promote creativity in our society.

ClassicGaming highlights the difficulty of making an emulator and alludes to the motivation of their authors:

“Writing an emulator is a difficult process which requires obtaining appropriate system information and then figuring out how to emulate the system hardware with software code. For example, software programs have been written to emulate “legacy” (old) microprocessors. Since computers have increased in speed, software programs can easily emulate these old processors since they are, in comparison, much slower.

It’s very hard to explain the technical aspects of how emulators are written and how they work, but needless to say it takes a lot of time, effort, and skill to write one. Emulator authors should be applauded for their efforts. Remember, in most cases emulator authors earn no money from their hard work, so don’t harass an emulator author if their emulator is not to your liking. Usually, you’re not paying anything for it, and if you think you can do better, by all means try.”

To argue against emulators using the spirit of copyright law, one could say that emulators are inhibiting creativity since the emulators are just a duplication of prior work. If people are busy playing games already produced, it discourages game developers from continuing their work. Nintendo attempts to bring this point to light.

“In addition, the assumption that the games involved are vintage or nostalgia games is incorrect. Nintendo is famous for bringing back to life its popular characters for its newer systems, for example, Mario and Donkey Kong have enjoyed their adventures on all Nintendo platforms, going from coin-op machines to our latest hardware platforms. As a copyright owner, and creator of such famous characters, only Nintendo has the right to benefit from such valuable assets.”

Basically, if you’re that nostalgic for your beloved characters, just go pick up the latest Mario game.

Mario in the original Donkey Kong game.

Mario in the latest Super Smash Bros for WiiU.

Sources

17 US Code 506 – Criminal offenses. Legal Information Institute, Cornell University Law School. Accessed on 4/30/14 from http://www.law.cornell.edu/uscode/text/17/506

Corporate legal information. Nintendo. Date & author not given. Accessed on 4/30/14 from http://www.nintendo.com/corp/legal.jsp

Hunter, D. 2012. The Oxford Introductions to US Law Intellectual Property. Oxford, New York. Kindle edition.

Newbie guide. ClassicGaming, owned by IGN Entertainment, Inc. Date & author not given. Accessed on 4/30/14 from http://classicgaming.gamespy.com/View.php?view=Guides.Detail&id=5

Meredith Hayley Greer

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