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."

Comments

His argument in a nutshell

[GreyWolf3000]

Well, that seems rather straightforward and restrictive. That [rom] file is for archival purposes only. Unless the definition is more flexible than it appears, that means the owner of an original may make a a copy and that copy cannot be used unless the original is destroyed or damaged. (Perhaps even that is reading too much into it?) So as long as you have an original, that copy should be sitting somewhere safe until needed to replace the original, should that event ever arise.

The law in question:

...that such new copy or adaptation is for archival purposes only

Basically, if you interpret "archival purposes" as "keeping it unused until your original breaks down and dies," then all emulation is legal.

However, that's a bunch of crap. I have a giant archive of files on my computer--it's called a filesystem. Anyone ever go to a library and check out their periodical archives? You don't have to wait untel every copy of a given newspaper is destroyed to use it.

Yeah, except...

[Seehund]

The article author hypothesises around an example where he owns a copy of a C-64 game, and whether or not it's legal to run said copy under emulation. He thinks this is illegal, due to the following US (I presume) legislation:

" (a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

The bold text is his emphasis.

He seems to have missed provision (1) entirely!
If you live under DMCA rule, just claim your C-64, your Datassette, or your 1541 floppydisk drive are broken...

Re:Yeah, except...

[barawn]

Read the comments. He says that provision refers to loading a copy into RAM, like loading a program into RAM on a Windows computer. In short, two copies can be made from the original: one in RAM (from original to run program on computer) and one archive (replacement in case of failure), neither made from the other.

He didn't look too closely, then.

It never says that you're restricted to using the program on one machine. Since copying the game in a ROM is a prerequisite to playing the game in an emulator, it falls under provision 1.

It's exactly akin to making a copy in RAM, because it's required to make a copy to use it on the computer. Incidentally, it never says that only 1 copy can be made, as well. You can make as many as you want.

Re:Yeah, except...

[ikkonoishi]

He also neglects.

http://www.copyright.gov/1201/

On October 28, 2003, the Librarian of Congress, on the recommendation of the Register of Copyrights, announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. The four classes of works exempted are:

(1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.

(2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.


(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.


(4) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

He missed the first part

[spectral]

(a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. (emphasis from the article)

Ok, so why can't it be under section 1? Making the copy of the game is essential since I no longer own a Commodore 64, NES, SNES or whatever, even though the games are all sitting on the shelf behind me.

It's allowed...

[dutt]

It's allowed to emulate games under Swedish law and therefore I'll continue to do it until I'm proven wrong.

Remember there isn't any world law, therefore only the country you reside in makes the rules for you. No one else.

same for dvd/vhs/[name it media]

[orion41us]

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.

It's bs, but that's how you can get the best-bang-for the buck if your a media company.

Re:same for dvd/vhs/[name it media]

[barawn]

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.

Re:same for dvd/vhs/[name it media]

[GigsVT]

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.

Re:same for dvd/vhs/[name it media]

[cpt kangarooski]

You're right. That is bullshit.

When you buy, for example, the Star Wars movies on DVD, you own the copy, i.e. the DVDs. No one owns the creative works; they're unownable. Lucasfilm (or someone) owns the copyright that pertains to the works.

Barring some actual contract (which doesn't appear to exist with regards to these movies) you own the copy absolutely as personal property.

This is inclusive of a right to use, but it is equally as unlimited and transferable a right as your right to use any piece of personal property.

The law may limit your use of it, but that doesn't diminish your ownership or alter the nature of the transaction by which you bought it. The law says I can't drive 100mph in a school zone, but I own my car. The law says I can't murder people with my kitchen knives, but I am the only person in the world with a property interest in them.

The law does say that you can't download the Star Wars movies, but that has nothing to do with your owning copies of them. Once the copyright expires on them, the law will not care any longer. Likewise, it will not care any longer as to what you do with the copies you bought.

If you were right -- you're not -- then it would continue to care, since you didn't magically get more rights.

I swear, I cannot figure out why the hell so many apparently intelligent people manage to overcomplicate and fuck up the very simple idea that when you buy stuff you own it.

I blame whatever asshole came up with EULAs. They're amazingly rare and totally at odds with how things operate by default. They're of dubious enforcibility and appear to have no real merit given copyright law as it stands. We really ought to ban them with only minor exceptions.

Re:same for dvd/vhs/[name it media]

[cpt kangarooski]

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.

Not only are you wrong, you contradict yourself. Go read 17 USC 106 for the core rights of copyright holders. Remember that they're negative -- they are rights to exclude others, not rights to actually do.

The additional provisions for computer programs were added because the object copyrighted is not physical

Copyrightable works are never tangible. It is copies that are tangible, but a mere copy isn't copyrightable; just the work within.

It would be nice to extend the fair use rights to media files as well

Any kind of use can be a fair use. But no use is necessarily a fair use. The fair use factors are at 17 USC 107. If, based on an analysis of those factors, ripping movies on DVD to xvids is fair, then it's fair. The right implicated there is reproduction, btw. But each set of circumstances has to be considered anew. So the mere fact that it might be fair to rip things yourself does not mean that distributing rips to others, and downloading rips from others, would be fair. In fact, they probably aren't, though of course, it depends.

By that logic...

[MMaestro]

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful

Try this analogy : If all newspaper and printed documents were under this same law, you would not be allowed to use any back up copy unless all original copies were destroyed. By that logic, we should be passing the original copy of the Declaration of Independence since we would not be allowed to use any copy of it as long as the original existed. Not very logical is it?

Emulation is wrong.

[Meagermanx]

Emulation is wrong. It hurts the industry. I mean, if everyone is downloading Skate or Die! for the Commodore 64, how will the developers make any money??

No blood no foul...

[briankoenig]

My personal belief is that if the respective game creator no longer makes money from my purchase of the game, I have no problem using an emulated version. Case in point: Let's say I want to play EVO, one of the only Super Nintendo RPG's I didn't buy when the system was new. Where do I get it? I can buy it used at Gamestop or GameCrazy, but Nintendo nor the publisher profits from that, just the huge corporate game company. I could buy it on eBay, but again, neither the developer nor publisher profits off of that, just the private seller and eBay. In cases such as this, it has no effect on the platform owner, the developer, or the publisher whether I download the emulated version or buy the copy used from someone else.

Re:No blood no foul...

[Dr. Mortimer]

What if the publisher plans to eventually re-release emulated versions of its older games for a newer system?

This is exactly what they did with their old NES games for Gameboy.

If there's enough demand for something "old" like EVO that a re-release is potentially marketable, then downloading without paying for it in some form may be regarded by some as questionable.

However, it can be difficult to find out if a re-release is in the works to begin with....

Even IBM does/did emulation

[Dragonmaster Lou]

Back in the early days of the computer market (the 50's, in this case), IBM had some serious problems. Basically, they would come out with new mainframe models every couple years or so -- but the architecture was so radically different from the previous generation that it couldn't run the previous generation's software (this was before they got the whole "backwards compatibility" concept). Recompiling also wasn't much of an option because most of the software written back then was done in assembly -- and even in the few cases where it was written in Fortran or something, the hardware, OSes (as primitive as they were back then), etc., were so radically different that a simple recompile wouldn't do either.

Their solution? Emulation. When you bought a new IBM mainframe, you could also acquire an emulator for the previous generation's equipment so you can continue to run your old stuff. Given as how storage technologies, etc., were also changing as fast as the CPU architectures, you would also essentially be running the emulated software off of the equivilent of "ROM archives."

There wasn't a problem with this back then, and I don't see why there should be a problem with this now.

No it isn't; this guy is screwing up his analysis.

[cpt kangarooski]

It all has to do with Title 17, Chapter 1, 117...

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:

Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner.

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

So, Sense is ruled out, eh?

[VernonNemitz]

According to the guy's logic, then this should be illegal too:
Buy an original copy.
Make a copy.
Archive the original
Use the copy until it wears out.
Make another copy from the archived original.
Use that until it wears out.
Etc.

After all, it is pretty well known that the average person cannot make a copy that is as high-quality as the original. (CD-rot seldom happens to originals, just to CDRs, see?). So, if I use the original, and it suffers wear and tear, then how can I be sure that my archived copy is really going to save my bacon when needed? While archiving the original practically guarantees it!

Anyway, if the preceding is illegal, then we need a new law!!!

No. Some emulators (e.g., Vectrex) are allowed.

[Richard Steiner]

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.