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All Emulation is Illegal
jvalenzu writes "Matt Matthews is at it again! The venerable owner of curmudgeongamer.com has posted his latest missive, All Emulation is Illegal." From the article: "Now, if this is how we interpret the law, then practically every use of a videogame system emulator is illegal. Even a user who dumps the contents of a videogame cartridge for an Atari 2600 game he owns to a ROM file cannot use that ROM file with an emulator unless the original's loss requires resorting to the archival copy. If true, then even my attempt to stay legal by buying games and only then using an emulator to play them is way out of bounds."
You do not own the movie/music/game you buy. You pay for the right to use. Essentially a limited non-transferable (is some cases) license. Which are most cases is specific to individual package.... i.e. if I own the star wars dvd's that does not give me the right to download the xvid versions.
Except that the only right that a copyright holder has is the right of first sale, and no others. That is, once they give that copy to you, they can't prevent you from doing whatever you want with it - other than making a copy.
The additional provisions for computer programs were added because the object copyrighted is not physical - so copying is necessary in several instances. It would be nice to extend the fair use rights to media files as well, so then you could convert your Star Wars DVDs into XviD versions, and then I seriously doubt any court would bother if you downloaded it instead of converting it yourself.
But right now, you can, for instance, copy a computer program from a disk to a hard drive to use it. You can therefore copy a ROM from a game cart to use it. He completely misread the first provision.
Since when?
Copyright law makes no such claims. When you buy something copyrighted, you own that copy of it. You may not make further copies of it, except as provided for in the laws, but other than that, there's no restriction on how you use it.
There is no "license". It's sold under "All rights reserved".
The first sale doctrine says you can do whatever the hell you want with your copy, including selling it to someone else. No company can take that away from you, except in some cases with software under the UCITA, in the states where that has passed.
I've had enough abrasive sigs. Kittens are cute and fuzzy.
Warning sign one: No one gives a rat's ass about chapters in title 17. Sometimes people do (e.g. Chapter 11 bankruptcy) but not here. Likewise, people usually don't say 'title' unless they mean the entire thing (e.g. federal copyright law is chiefly codified in title 17).
The cite anyone familiar with copyright law would provide would be 17 U.S.C. 117. Getting basic stuff like this wrong is a bad sign.
Moving on, he has skipped -- though he took the trouble to quote -- an important clause in the section.
Taking this into account, we can say that:
So the checklist is pretty simple:
* Do you own a copy of the program? (EULAs may interfere with this, which is one of the reasons they're really intolerable) N.b. that some people misread owning a copy as owning a copyright. But that would be asinine as a copyright holder cannot infringe on his own copyright at all. It's as impossible as stealing something from yourself.
* Is the computer program being utilized in conjunction with a machine? Yes, if we're going to run it in an emulator.
* Are any reproductions or adaptations of the program you make only made as an essential step in running it in the emulator? Yes. Essential here doesn't really mean that there is no alternative, but rather that it's not utterly superfluous. I.e. merely because you might be able to run a program without reproducing it to the hard drive, but rather reproducing from CD straight to RAM, you aren't obligated to.
So what's the upshot for emulator writers? Well, I would worry about contributory copyright infringement, the type of legal challenge that all the Peer-to-Peer applications have had to deal with
I would generally not worry about that. To escape contributory infringement on the basis of a capability of a technology, one need only demonstrate potential, significant, noninfringing uses. Since there are plenty of programs that can be run in emulation which are authorized to be so run, in the public domain, or run by copyright holders themselves, that's likely sufficient. And even that presupposes that the guy is right, and he's not.
The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet.
This is roughly correct. First, note that Nintendo's statement applies to the backup provision of 117 -- 117(a)(2). We've been looking at 117(a)(1), which concerns itself with running software, not backing it up.
Second, I would disagree that backups lawfully made pursuant to 117(a)(2) can only be used when the original cannot be used.
The exclusive rights of the copyright holder are in 106. The relevant one is reproduction (i.e. making a new copy, given the special definition of 'copy' in 101). Use -- as distinguished from reproduction -- is not covered, and therefore not infringing. A caveat, however, in that a use that involves a reproduction is infringing on the basis of the reproduction; this is why we need 117, since moving things into hard drives or RAM is reproduction.
The statute allows archival copies to be made if they are only for archival purposes, but this only makes sense if they can at some point be acti
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
The copyright holder for the Vectrex arcade game hardware and the various games which were released on cartridges has explicitly allowed its user community to create emulators for that hardware and run copied images of that software as long as the emulation is not done for profit.
Because of this, Vectrex emulators are perfectly legal, and it is legal to copy the ROM images and play them in a Vectrex emulator on a PC.
Mainframe/UNIX Bit Twiddler and long time Windows/Linux Hobbyist.
The Theorem Theorem: If If, Then Then.