Avian Gamers Network

Game Emulators and the DMCA

The recent launch of next-generation gaming systems such as the Microsoft Xbox 360, Nintendo Wii and the Sony Playstation 3 has brought gaming back into the forefront of pop culture. The advent of these new systems along with their ability to play “classic” games has also brought the concept of game emulators and how the law deals with game emulators to the top of legal issues in gaming. Game emulators have been largely tolerated by the game industry as an aggravating side culture. All of that is changing, however, as the game industry realizes how much money can be made from classic games such as Frogger, Pac-man, and Galaga. This paper examines game emulators and how they are affected by the Digital Millennium Copyright Act (DMCA). In particular, this paper shows the current landscape of law as it relates to game emulation and then extrapolates what the future may hold.

Game emulators are not a new concept. Since the release of the first video game system, enthusiasts have sought a way to play games on platforms other than the one for which they were explicitly designed. The EmuFAQ quoting the Webster dictionary defines an emulator as “a product designed to imitate one system with another so that both accept the same data, execute the same programs, and achieve the same results” (Pettus). In addition, the main purpose of an emulator is “to perform a task or series of tasks that you couldn’t otherwise do because they weren’t intended for your hardware” (Pettus). For instance, in today’s world of game emulation, a common desire is to play some of the 1980’s arcade classics such as Frogger or Pac-man on the PC. A game emulator allows a PC to emulate the arcade console of the 1980’s and plays Frogger or Pac-man exactly like the version in the arcade.

A variety of emulators exist. Hardware emulators build emulation into a hardware device that replaces the original unit. These emulators are commonly found in the Jakks TV Games series of emulators (Segan). Jakks TV Games sell as a joystick with preloaded games. One such emulator is Jakks’ Atari joystick/emulator (Jakks Pacific). Due to advances in electronics, Jakks is able to put the entire components of an Atari 2600 console into a single joystick that is preloaded with ten classic games. Typically, this device sells for ten to fifteen dollars at most retailers.

Software emulators are another type of emulator. These emulators are computer programs written to simulate dedicated hardware features. For instance, software emulators exist that recreate in software all the functions of a full arcade cabinet or an entire Atari 2600. Software emulators are the most full-featured of all emulators. Since PC power has increased so much over the years, emulator developers find it easy to recreate the older game systems in software. The most well-known software emulator is the Multiple Arcade Machine Emulator or MAME. The following is an excellent description of MAME provided in the MAME FAQ:
MAME stands for Multiple Arcade Machine Emulator. When used in conjunction with an arcade game's data files (ROMs), MAME will more or less faithfully reproduce that game on a PC. MAME can currently emulate over 3000 unique (and over 5400 in total) classic arcade video games from the three decades of video games - '70s, '80s and '90s, and even some from the current millennium.

The ROM images that MAME utilizes are "dumped" from arcade games' original circuit-board ROM chips. MAME becomes the "hardware" for the games, taking the place of their original CPUs and support chips. Therefore, these games are NOT simulations, but the actual, original games that appeared in arcades.

MAME's purpose is to preserve these decades of video-game history. As gaming technology continues to rush forward, MAME prevents these important "vintage" games from being lost and forgotten. This is achieved by documenting the hardware and how it functions, thanks to the talent of programmers from the MAME team and from other contributors. Being able to play the games is just a nice side-effect, which doesn't happen all the time. MAME strives for emulating the games faithfully. (MAME)

Legally, the issues surrounding emulators have mostly focused on copyright issues. In an article from 2003, Andy Holloway of the magazine Canadian Business examined the issue of computer game piracy. Holloway states, “In the United States, theft cost the US $6.9 billion gaming industry US $3.2 billion in lost sales last year. That’s a staggering piracy rate of 46.4%--nearly five time the music industry’s 10%” (Holloway). So, in 2002, piracy cost game makers half their profits. However, the article also mentions that the gaming industry, unlike the music industry, is very careful not to antagonize the gaming community. The main reason for this is the nature of gamers. Most gamers are technophiles who will quickly turn against any company that shows itself to be counter to the geek culture. This is why the MAME FAQ states that:
Emulating another platform, in itself, is NOT illegal. It is NOT illegal to have MAME on your computer, on your website, or to give it to friends.
ROM images are a different matter. Many ROM sites have been politely contacted by ROM copyright-owners and asked to take images offline. At the time of this writing, however, no site has been LEGALLY shut down, or prosecuted.

There are a few clear precedents about ROMs' legality: Capcom has licensed some of its classic ROMs to be bundled with Hanaho's HotRod Joystick control panel. By buying one, you can have some absolutely legal ROMs. There is also now a service which sells licenses to possess and use ROMs, called StarROMs. They offer a legal way to have ROMs for some of the games supported by MAME, and hopefully more services like this will appear in the future.

Possessing ROM images of circuit boards you do not own may constitute a copyright violation, much like copying a friend's game or audio CD rather than buying it. This is still a legal gray area; possession of such ROMs will not necessarily lead to legal prosecution. In any case, you are responsible for your own actions. No one connected with the MAME project is responsible if you get in trouble. (MAME)

As the court cases show, the FAQ’s statement that “no site has been LEGALLY shut down, or prosecuted” is not completely true. However, it is true that the game industry has been loath to tackle this problem. This tension between the game industry and the consumer continues to grow as the demand for classic games grows. In order to understand the new environment, it is necessary to look at the DMCA and United States court cases concerning emulation.

The DMCA, enacted in 1998, is one of the most controversial pieces of legislation in recent history. The DMCA brings US law into compliance with the World Intellectual Property Organization (WIPO) treaties. As part of WIPO, all nation states agree to limit “circumvention of technological measures used to protect copyrighted works, and to prevent tampering with the integrity of copyright management information” (U.S. Copyright Office). The DMCA deems it illegal to make or sell any technology designed to bypass security measures put in place to protect a copyrighted work. The DMCA further clarifies in Section 1201 an obligation by states “to provide adequate and effective protection against circumvention of technological measures used by copyright owners to protect their works” (U.S. Copyright Office). Further in Section 1201, the DMCA defines unauthorized access and unauthorized copying. The DMCA states that except in very certain circumstances unauthorized access is illegal. However, unauthorized copying, due to fair use doctrine, is not illegal. Amazingly, circumventing technology measures in order to make a copy is illegal under the DMCA. The DMCA summary states: “By contrast, since fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technology measure in order to gain access is prohibited” (U.S. Copyright Office).

In other words, the fair use doctrine puts users into a catch-22 situation. Imagine a music CD purchased at the store. Due to fair use, a right exists to make a copy for backup purposes. This right is fully allowed under the DMCA. However, upon attempting to copy the CD, it is found to have an encryption scheme, a method for controlling unauthorized access that prevents copying. The DMCA makes it illegal for the user to break the encryption scheme to allow for a copy to be made. The user has the right to copy the disk for backup purposes due to fair use, but, due to the DMCA’s unauthorized access statues, the act of breaking the encryption scheme to make the copy is a violation of law. It is interesting to note that the actual language of section 1201 states that you cannot bypass a “technological protection measure [that] ‘effectively controls access to a work’” (Band). DMCA cases such as the one involving Lexmark, the maker of computer printers, and Static Control Components, Inc., (SCC) maker of replacement cartridges for printers have shown that the court will overrule a DMCA claim if the measures to prevent unauthorized access are not effective or are not correctly applied to a device (Pike).

The DMCA does provide for exceptions to these provisions for “law enforcement, intelligence and other governmental activities” (U.S. Copyright Office). Additionally, in the original DMCA the following six other exceptions were provided:

• Nonprofit library, archive and education institution exception
• Reverse engineering
• Encryption research
• Protection of minors
• Personal privacy
• Security testing

Furthermore, under the DMCA, the Librarian of Congress is allowed to determine new exceptions by reviewing the DMCA. As part of this review process, four new exceptions have been added to the DMCA:

(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 eBooks’ read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format. (Fisher)
The third new exception seems to clearly provide the ability to create and use emulators for the playing of any game for a console or system that no longer exists. Of course, even Fisher in his article title shows the uncertainty that the DMCA is causing in the court system. When describing the new exceptions, he titles the report, “How to slip past the DMCA, maybe sorta; ROM emulation gets a boost?” The problem with the exception revolves around the interpretation of “format is no longer manufactured or is no longer reasonably available in the commercial marketplace” (Fisher).

The best example of this is the game Frogger. Frogger has appeared on many different consoles (everything from arcade consoles to Atari 2600) throughout the years. However, most of these consoles no longer exist and are considered to be “no longer manufactured or no longer reasonably available in the commercial marketplace” (Fisher). The problem stems from the fact that just last July a version of Frogger was released on the Xbox 360 Live arcade platform (Frogger). Owners of the Xbox 360 (of which there are currently about ten million) can purchase and play Frogger. Does this constitute being “reasonably” available in the marketplace? Also, since no one knows what ROM or version of Frogger the Xbox Live arcade version is based on, no one knows exactly which versions of emulated Frogger are legal. In other words, emulation is “kinda, sorta” legal. Until a court case clarifies exactly what the exception means, no one has a clear understanding of the legal landscape for emulation.

Nevertheless, these exceptions do not shield individuals interested in emulation of games from the DMCA. In the case of Davidson & Associates v. Jung, the DMCA is the basis for a lawsuit against a group that created an emulator for a popular online gaming server (Reverse Engineering). Due to their anger at the lack of service from Blizzard Entertainment (a subsidiary of Davidson and Associates), a group of enthusiasts reverse engineered the networking code for the Battle.net service being offered by Blizzard. The main purpose of the project was to develop a “program called bnetd.org server that emulates the Battle.net server and permits users to play online without use of Battle.net” (Reverse Engineering). Battle.net is a free service offered by Blizzard, but it does have one form of authorization control. Each game intended for use on Battle.net is sold with a CD key. This unique key can be used by only one person and is checked for validity when a user connects to Battle.net. The users PC “initiates an authentication sequence or secret handshake between the game and the Battle.net server” (Reverse Engineering). The CD key is the basis for this secret handshake. The bnetd.org server created by Jung and others fully emulated the Battle.net servers in all ways except checking the CD key. In other words, the bnetd.org servers allowed users to play online using pirated copies of the game. Although many issues were raised in the court case ranging from the User Agreements to fair use, eventually the court seized on the DMCA’s Section 1201(a)(2) which concerns unauthorized access technologies. Jung lost the case because, in the court’s view, the “appellants had designed and developed the bnetd.org server and emulator for the purpose of circumventing Blizzard’s technological measures controlling access to Battle.net and the Blizzard games” (Reverse Engineering). So, reverse engineering the Battle.net server is not illegal. However, reverse engineering and then circumventing access controls are illegal. This entire case is based on a service that is still running. Battle.net is still available and people do play many different Blizzard games on it. Therefore, it cannot be used as a test for the new exceptions to the DMCA provided by the Librarian of Congress. To date, the test case for that provision has not been brought before the courts.

So, where is the law and game emulation going in the future? To gauge the use of game emulators a short survey instrument was created and administered to students in Stanly Community College’s Simulation and Game Development program. Fifteen total students were surveyed. Three of the fifteen or 20% were not familiar with game emulation software. Ten of the fifteen or 67% do not currently use game emulation software. Interestingly, only 13%, two out of the fifteen surveyed, use emulation software. One respondent uses emulation software to play titles they did not own. The other game emulation software user played older game titles on systems they were not designed to be played on.

Of those surveyed, six of fifteen or 40% believe game emulation software in any form was illegal. Five of fifteen or 33% felt that game emulation software was legal. Of the fifteen total respondents to the survey, only one knew of the DMCA. The other fourteen had no knowledge on how the DMCA at all. From this short survey, it seems that the younger generation of gamers has very little interest in game emulators. Since many of the emulated games are classics which predate most of those surveyed, this is not a surprising outcome of the survey.

In the future, case law concerning game emulation will be a hot topic. The advent of services such as Nintendo’s Virtual Console, Microsoft’s Xbox Live Arcade and the Sony Playstation Network that are designed for the purpose of repackaging and selling older games will force game developers to try to protect their intellectual property. Although the exception for game emulation exists in the DMCA now, the DMCA has had a chilling effect on many facets of game emulation. Everyone from commercial companies to open source groups are frightened by the possibility of the DMCA being used to stifle an emulation project. Until someone is willing to test the game emulation exception in the court system, game emulation will continue to exist in a shadowy realm where it is “kinda, sort of” legal.


Bibliography

Band, Jonathan. "The Digital Millennium Copyright Act." http://www.policybandwidth.com/. 23 Apr 2007 <http://www.policybandwidth.com/doc/JBand-DMCAWIPR.pdf>.

Fisher, Ken. "How to slip past the DMCA, maybe sorta; ROM emulation gets a boost?." ars technia. 29 October 2003. ars technia. 22 Apr 2007 <http://arstechnica.com/news.ars/post/20031029-3040.html>.

"Frogger - Game Details." Frogger. Xbox.com. 23 Apr 2007 <http://www.xbox.com/en-US/games/f/froggerlivearcadexbox360/default.htm>.

Holloway, Andy. "LICENCE TO PLUNDER." Canadian Business 76.22 (2003): 95-95. MasterFILE Premier. 5 April 2007. http://search.ebscohost.com.

Jakks Pacific, "Welcome to JAKKS TV Games >>Atari." 26 Apr 2007 <http://www.jakkstvgames.com/atari.html>.

MAME, "Multiple Arcade Machine Emulator FAQ." Multiple Arcade Machine Emulator Site. 02 July 2006. 23 Apr 2007 <http://www.mame.net/mamefaq.html#g06>.

Pettus, Sam. “Emulation: Right or Wrong? Aka “The EmuFAQ”.” 16 March 2000. 5 Apr 2007 http://www.worldofspectrum.org/EmuFAQ2000/.

Pike, George H. "Reverse Engineering a Controversy." Information Today 22.1 (2005): 17-22. Business Source Premier. 5 April 2007. http://search.ebscohost.com.

"Reverse Engineering to Create Emulator Software Game Violated Agreements and DMCA." Computer & Internet Lawyer 22.11 (2005): 37-40. Business Source Premier. 5 April 2007. http://search.ebscohost.com.

Segan, Sascha. "Playing in the Past." PC Magazine 23.9 (2004): 151-151. MasterFILE Premier. 5 April 2007. http://search.ebscohost.com.

U.S. Copyright Office, "The Digital Millennium Copyright Act of 1998." 01 December 1998. U.S. Copyright Office. 5 Apr 2007 <http://www.copyright.gov/legislation/dmca.pdf>.

Woo hoo! another laptopper like me! Wow that sounded wierd just now...

I never said that stealing a game, in any way, is right.

The figure of $3.2 billion being lost in sales in 2003 was a number that was very likely pulled out of mid-air. Oh there may be some bean counter that has some formula somewhere but it's not real.