Posted By: Ryan Rempp
The video game emulator community argues that it is okay to download a video game if it is not in production and no longer in the primary market. Does that argument hold water, legally speaking?
Very short and safe answer: no, probably not. But there’s more to it than that.
Unlike movies and music, games require specialized hardware. While a VHS cassette requires a VCR player, a movie can easily be reprinted as a DVD. Games require special hardware, and reprinting a game requires significant work to make it work on new hardware. Game developers only reprint games that will sell well enough to warrant that extra effort. And so, as old hardware start to fail, fewer people can play the games that don’t get reprinted.
This mirrors a problem faced by early, silent films. Early films were improperly stored, damaged in accidents, or simply destroyed because movie studios viewed them as less valuable. If nothing else, those early games are a part of video game history, and video games are a part of America’s culture. Data suggests that 42% of Americans play at least 3 hours of videogames a week.
One solution to games being lost to time is emulators. Emulators are programs that simulate computer hardware. In this case, they are used to simulate video game consoles. Emulators have been discussed in courts several times, and they are generally considered legal. By using emulators, new hardware can run old games, meaning that those old games do not get lost to time. But just like a game console needs a game to work, an emulator needs a digital copy of a game. Game makers often embedded original copies of games intended for game-specific platforms in ROMS (Read Only Memory chips). It is almost certainly illegal to download or share ROMs, because under copyright law, there is no reason why video games would not basically be treated the same as movies. Game companies see free exchange of digital files from ROMs as a danger to their business, and oppose them quite strongly.
So that’s where the emulator community’s argument comes in. One site offering digital files from game ROMs, that will remain unnamed and unlinked, claims “All game versions present on the site are already out of production and are unavailable in the primary market.” And that is a pretty good argument. If the game companies are not selling copies of the game, they do not get hurt by piracy. No harm, no foul. That is not how copyright law works, however.
There are three distinct degrees of “out of production” games. Each step gets further removed from the market, and so the emulator community’s argument gets stronger.
- Out-Of-Print games that are no longer sold on the original console, but are rereleased on other consoles or platforms.
- Abandonware games that cannot be bought on any console but could be rereleased someday, and
- Orphaned games, which cannot be bought and probably cannot be rereleased, often because the copyright holder has gone out of business without any clear successor.
So let’s start at the first, and look at how the emulator community’s argument holds up the law is applied to the facts.
The emulator community argues that if the company is not selling the game, then the company doesn’t get hurt by piracy. Based on the ROMs available on the Unnamed ROM site, they include games that have been rereleased in their definition. Sonic the Hedgehog was released in 1991 for the Sega Genesis. It’s a popular game, and Sonic is a pretty big gaming icon, and so it was rereleased on the PC in 2010, and you can still buy it there. Although Sonic is available for purchase on the PC, ROM sites still allow users to download the Genesis version.
If a game is on the market in some way, it is almost certainly illegal to download it. A court would not let you download the VHS release of Star Wars from a file sharing site just because Disney sells a Blu-ray version instead. Video games are not different.
If you can buy the game, there is no excuse not to do so. Using piracy as a substitute for purchase is exactly the sort of thing that copyright exists to prevent. In this situation, the owner of the game could sue you, and they will probably win.
Fortunately, many game companies are making old games available on their new hardware. Sega has gone a step further and is even selling ROMs for use on computers. For games that have not been republished, the best option is to find a second-hand copy.
Games that are completely out of print and only available second-hand are commonly called abandonware. Rereleasing games takes money and effort, so less popular games will never see a rerelease. Take for example Pocky and Rocky. Pocky and Rocky was not a popular game, but it received a lot of critical attention for its good gameplay and 2-player mode. The developer, Natsume, also published the game, and so it is very likely that they still hold the rights to the series. They have never rereleased it, so that must mean they don’t care about it, and that makes it okay to pirate it, right?
No. Compare this situation to the Disney Vault. Disney famously uses artificial scarcity to drum up excitement. It will keep a movie “in the vault” and out of the market for a while, and then heavily advertise a new print run. The technique is controversial, and some love it and others hate it. Just because Disney keeps a movie out of the market does not make it okay to download that movie. Just because a video game company does not rerelease a game does not make it okay to download that game. At this time, Natsume has stated that it probably will not rerelease Pocky and Rocky.
Unfortunately, the legal way to play Pocky and Rocky is to find a second-hand copy, and those cost over $100 dollars. And that price does not include the cost of the SNES. Abandonware still has the hope of being reprinted someday, but not all games share that hope.
The emulator community has the best argument when it comes to orphaned works. An orphaned game is stuck in a strange legal limbo, where the game has no clear owner for purposes of copyright, or the owner is unable to be contacted. Without an owner, the rights to a game cannot be bought, sold, or used, and so the game is trapped in legal limbo until its copyright protection runs out, which occurs 95 years after publication.
Take for example No One Lives Forever. It’s not a console game, it’s a PC game, but it is a great example of an orphaned game. It was originally developed by Fox Interactive in 2000. Fox Interactive was acquired by Vivendi in 2003, and Vivendi merged with Activision in 2008. Activision has no record of ever owning No One Lives Forever. Warner Bros., Activision, and 20th Century Fox all denied having rights to the game, and those three are the companies that were involved with the transfers. This is an unusual case, but it shows how even sophisticated businesses can lose track of these rights. That means that nothing can be done with this game until the copyright protection runs. The only way to legally play the game is to own a disc.
While few games are clearly orphaned like No One Lives Forever, it does provide a good example of the issue. With no owner, no one is harmed when the game is shared by the community. In many countries, the legislature has created Orphaned Works laws. In Canada, this law means that the government gives licenses to works with no owner, saving photographs, films, and music that would otherwise be trapped in limbo.
Unlike Canada, the US has no orphaned work statute. The U.S. copyright office has issued several reports suggesting that Congress do something, but Congress has refused. That report recognizes that a statute is needed. Despite copyright experts urging Congress to change the law, Congress has refused, claiming that a statute would harm content creators.
The problem is that because Congress has heard the arguments in favor of orphaned work statutes and said no, downloading an orphaned work is still illegal. It doesn’t matter that no one is hurt by the download. If it were legal to download any out-of-print game, orphaned games would be the one.
The emulator community’s argument doesn’t work under the US’s copyright laws. A game developer has control over what it creates, and that means the fan community does not get to share games, even if the developer is no longer selling that game in any way. It doesn’t even matter if the developer has shut down.
Fortunately, games ROMs are being collected by archival institutions which can collect them under special legal provisions. Archive.org has created the “Console Living Room” which collects early gaming history and even allows site users to play. As of right now, the playable collection there focuses on the early history of games which are most likely to be lost. For members of the emulator community who really cared about having games preserved, this is a great solution.