Don’t Hate the Player, Hate the Game: The Legality of Emulation
September was a rocky month for videogame emulators. A Nintendo 64 emulator and a NES emulator were briefly downloadable on the Xbox One store before Microsoft hastily removed them. 1 Some suspect the clampdown on the apps was due to emulation falling within a “legal gray area” in copyright law,2 a widespread misconception. Emulators by themselves are legal, the games they run are another matter.
Emulators are programs that allow computers to run videogames developed for other platforms.3 They are often utilized to imitate the programming of “archaic” consoles such as the Atari, PlayStation, SNES and Sega Genesis, thereby enabling the playing of classic, or “retro”, games.4 Games played on emulators are stored on videogame cartridges called ROMs.5 Both emulation software and ROMs can be downloaded easily from the internet.6
In order to understand why emulators are legal under copyright law the legality of both emulators and ROMs must be contemplated.7 The status of emulators under the law was decided in the 2000 case Sony v Connectix, which concerned Connectix’ creation of a Sony PlayStation emulator, ‘Virtual Game Station’.8 Despite the similarities in function and use between the Sony PlayStation and the emulator, the court deemed Virtual Game Station to be a new platform and a ‘transformative work’, thus deeming it legal under fair use. Any doubts about the legality of emulation were dissipated later that year by Sony v. Bleem. Therein, the Court of Appeals for the 9th Circuit stated that they had already ruled emulators were not a violation of copyright law.9 Hence, obtained lawfully with a code not under any form of copyright, an emulator isn’t illegal.10 However, the fun of emulators lies in the games they run, and that is where questions of legality arise.
Videogames receive copyright protection as both literary and audiovisual works.11 This protection grants videogame copyright owners certain rights which are exclusive to them, including the right to produce the game, to create derivative works based on the game and to display the game to the public.12 When a ROM distributor makes a copy of a ROM file from a game, uploads it to the internet for others to download, and transmits it over the internet they infringe upon these rights.13 The ROM downloader is also in violation of the copyright holder’s rights as they make a copy of the ROM through the act of downloading it.14 Thus, while emulation by itself isn’t illegal, downloading a ROM for a commercial game is.15 With copyright works protected for 75 years, most ROMs today are unauthorized copies of games still protected by copyright, and will be for a while. 16
Regardless of the legality of such software, it’s clear that the uses of emulators are too extensive for them to just disappear. Aside from utilizing them to revisit the classics, people continue to use the programs to emulate games that were never officially released in the West,17 tweak and modify games,18 or even just experiment to gauge the limits on what emulation software can achieve.19
Note, Jeffrey S. Libby, The Best Games in Life Are Free?: Videogame Emulation in a Copyrighted World, 36 Suffolk U. L. Rev. 843, 843 (2003).↩
Jethro Dean Lord IV, Would You Like to Play Again? Saving Classic Video Games from Virtual Extinction Through Statutory Licensing, 35 Sw. U. L. Rev. 405, 405 (2006).↩
Emulation is the Sincerest Form of Flattery: – Retro Videogames, ROM Distribution and Copyright, pg. 7.↩
Emulation is the Sincerest Form of Flattery: – Retro Videogames, ROM Distribution and Copyright, pg. 11.↩
Jethro Dean Lord IV, Would You Like to Play Again? Saving Classic Video Games from Virtual Extinction Through Statutory Licensing, 35 Sw. U. L. Rev. 405, 414 (2006).↩
Emulation is the Sincerest Form of Flattery: – Retro Videogames, ROM Distribution and Copyright, pg. 9.↩