Justifying Video Game Piracy – The Backup Defense

Posted By: Ryan Rempp

controllerThe video game emulator community has a second argument to justify downloading copies of video games. They argue that as long as the downloader has a legal copy of the game, it is not illegal to download a backup copy. Unfortunately, that argument does not work. In fact, obtaining a digital copy of a video game is a tricky legal issue.

Let’s start with some of the basics. Read-Only-Memory (ROM) chips contain the game inside of a game cartridge. When copied into a computer they are technically called ROM images or ROM files. Most online conversations will just call those ROM files “ROMs,” but I will call them ROM files to be technically accurate. Basically, a ROM file is a digital copy of a game stored on a computer. It’s pretty safe to say that downloading a ROM file is illegal.

Like a game cartridge that needs a game console to run, ROM files need computer emulators. Emulators emulate hardware. In other words, emulators are programs that allow a computer to run games originally meant for different types of computers, like game consoles. Emulators have been the topic of court cases several times, and they are generally considered legal in the United States. In fact, courts have praised emulators as a way to combat monopolies in video game platforms.

In a previous post on this blog, I looked at whether the emulator community was right to justify piracy by claiming a game was out-of-market. They were not. They still have a second argument, however.

There is second argument used by the emulator community. They say if you already own a legal cartridge of the game then you can legally download a ROM file from a ROM file website, since you could play the game anyway.

Looking at previous court decisions and at the law of the United States, the emulator community is once again wrong. The argument makes sense, but it does not match up with the law, and the law wins that fight. You cannot legally download a game just because you own an original copy. Now, it may be legal to create a ROM file yourself for certain systems, but that often requires special hardware, and the law is not clear on the matter.

ROM files as Backups

There is a lot of appeal to the back-up argument for game downloading, especially for the emulation community. Above anything, it is a matter of convenience. ROM files allow a single collection, which means the collector does not need to attach a dozen game consoles to a TV. ROM files also allow collectors to safely store the original cartridge, while still enjoying the game they own through emulation.

Courts have accepted this argument for both music and video. In RIAA v. Diamond Multimedia Sys., the representatives of the recording industry sued the makers of an MP3 player, since the MP3 encouraged owners to make MP3 copies of their personal CDs. The recording industry claimed that the MP3 copies were infringing their copyright. The court found that people should be able to make copies of music for their own personal use. That process is called space shifting. However, this space shifting argument relies on a law that applies specifically to music, the Audio Home Recording Act (AHRA). Congress created that act to clear up legal uncertainties surrounding digital audio cassettes. The new cassette never really caught on, but the law stuck around. While the RIAA case makes a strong argument for space-shifting, since the AHRA only applies to audio, the emulator community cannot rely on it.

The space-shifting argument in the RIAA case stems from the time-shifting argument established in a case called Sony v. Universal. That case dealt with recording TV broadcasts on Betamax cassettes, another unsuccessful format. The Supreme Court held that people should be able to record television shows to watch them later, which it called time shifting. Allowing time shifting did not harm copyright holders and provided benefit to the public, and so the Court found time shifting to be a fair use. Fair use is the base for both time shift and space shifting, and it allows for some use of copyrighted material without permission of the copyright holder.

Space-shifting should apply to video games, but that argument relies on fair-use. Fair-use develops on a case-by-case basis, so there will not be a clear answer to this question until the issue of video game space shifting goes to court. Looking at the fair-use factors provides some guidance, but until a court makes a decision, there will always be some uncertainty.

To determine if creating a ROM file is fair use, a court would look at four factors: 1. the nature of the use; 2. the nature of the work; 3. the amount of the work used, and; 4. the use’s effect on the market. The factors are balanced against each other, and no one factor controls a court’s decision. These factors are flexible, but here are some arguments in favor of space-shifting video games.

The first factor is the nature of use. Courts expect some transformative effect through fair use. That does not necessarily mean a transformation of the work itself. Courts have accepted a transformative use as well. In Perfect 10 Inc. v. Amazon.com, Inc., the court found that creating an online database of images was a fair use of copyrighted images. The database itself was transformative. In the same vein, creating a digital video game collection is arguably a transformative use, even if the user just wants a more convenient way to play their games. Both the MP3 player case and the Betamax case were primarily about user convenience.

The second factor is the nature of the work. If a work is creative, it receives greater protection under copyright law, and so a court is less likely to find fair use. Videogames are creative works, but there is still a way to justify their fair use. In Harper & Row Publishers, Inc. v. Nation Enterprises, the court discussed how a creator gives up some control by publishing a creative work. Even if the work is creative, the creator sold it to users, and those users reasonably expect to be able to use the product they purchased. It is fair for users to be able to space-shift the game they bought, even if it is a creative work.

The third factor is the amount of work used. This factor encourages using as little as necessary of the copyrighted work. In space-shifting, the point is to have access to the whole work in another medium. The courts in both the MP3 case and the Betamax case allowed people to copy the entire work for their own personal use. The same argument applies for video games, and may even be more applicable. Videos and music can be cut into clips. There is no way to take a clip of a ROM file. If a user wants to space-shift a video game, they have to store the whole file.

The fourth factor is the copying’s effect on the market. In this case, a user is space-shifting a game they already purchased for their own convenience. It is a non-commercial use, and that weighs heavily in favor of allowing fair use. Courts will still look at the other factors, but this factor supports space-shifting.

Based on the factors, space-shifting video games should be considered a fair use of copyrighted material, but it is hard to say for sure because courts analyze it on a case-by-case basis. That is not the end of the discussion, however. Even if space-shifting is a fair use, there is another obstacle to space-shifting.

Obtaining a ROM File

Even if a user is allowed to use ROM files under space-shifting, actually obtaining the ROM file may be difficult. It is illegal to download a ROM file, and extracting the ROM file from a cartridge may not be any better.

Even if space-shifting is legal under fair use, it only applies to ROM files the user creates themselves. It is illegal to download the file, even if the downloader owns a cartridge. The case UMG Recordings, Inc. v MP3.com, Inc., makes it clear that ownership does not justify downloading, even if users may not be able to create the files on their own. At the time, ripping a CD to create MP3 files required more processing power than most computers offered. The website MP3.com offered those files for download if the user verified that they owned the CD by inserting the disc into the computer. The court ultimately held that the site violated copyright. The right to space-shifting only applies to an individual making a copy of a CD they own for their own personal use.

The MP3.com system is pretty similar to the system used ROM file sites. ROM file sites offer ROM files because creating those ROM files pose technological difficulties. Creating a ROM file from a cartridge requires special equipment that most users do not have. The major difference is that ROM file sites do not require verification before users can download files. If the system used by MP3.com to distribute MP3 files violated copyright, there is no reason to believe that ROM file websites are legally able to distribute ROM files using a similar system. Space-shifting only allows for personal use of the copy. Downloading a file or receiving a file from a friend is a violation of copyright even if space shifting is legal.

The only legitimate way for a user to obtain a ROM file for space-shifting is for the user to create it themself. There are two big roadblocks to dumping a ROM file from a ROM chip. The first is physical, the second is legal.

The physical roadblock is easy to understand. To create a ROM file, you need a way to dump the ROM file off the ROM chip. For older cartridge-based consoles, that means connecting the cartridge to a computer that can copy the data. These devices cost over $50 when new, but they are generally created small batches and quickly rise in value. For newer consoles, this process involves using exploits to install unofficial software. If that installation is not done correctly, the console can be irreparably damaged. The exception to this roadblock is games published on DVDs and CDs, which can be copied with home computers.

For technical accuracy, a digital copy of a game CD or DVD is referred to as an ISO image or ISO file, but from a legal perspective, there’s not much difference between and ISO file and a ROM file. Any legal arguments for ROM files also apply to ISO files.

So once you get around the physical roadblock, there is a legal roadblock. Copyright includes a section, the DMCA, which prohibits circumvention of anti-piracy and content control systems, to prevent unauthorized copying. Even if space shifting is legal, it is unauthorized. One example is the CSS system that protects DVDs from unauthorized copying or use in unauthorized devices. In 321 Studio v. Metro Goldwyn Mayer Studios, Inc., the court found that a software program that circumvented CSS to make a copy of a DVD was violating copyright, even if the copy would have been allowed under copyright because of fair use.

Exactly one case analyzes the legality of the devices required to extract ROM files from Nintendo cartridges. In Nintendo of America v. Bung Enterprises, Nintendo sued the manufacturer of the Doctor V64, which could create ROM files from Nintendo 64 game cartridges. The court found for Nintendo, forbidding the sale of the Doctor V64 in the United States. The court reasoned that in order to extract the ROM file, the Doctor V64 had to circumvent a content control system in violation of the DMCA because the N64, Super Nintendo, and Gameboy all have a small chip that ensures a real cartridge is being used in a real console. Based on this case’s ruling, creating a ROM file from most game cartridges would be illegal, since most cartridges have some piracy protection measure.

Creating ROM files or ISO files for modern consoles requires installing unofficial software by modifying the console hardware or exploiting vulnerabilities. Those modifications and exploits violate the DMCA, and people have been arrested for selling modification chips. While it may be legal to install unauthorized software on other devices because of an exception to the DMCA, game consoles are excluded from that exception.

The fair use doctrine may apply to users who space-shift video games they own into a digital collection, but it does not overcome the DMCA. Only a small subset of games does not have a content control lock on them. Those are the only games that could legally be space shifted thanks to the DMCA. Most other games are probably protected by the DMCA, meaning it is illegal to extract their ROM files. Even if DVD-based games are compatible with computer drives, and there is no physical roadblock to creating an ISO file, it is still illegal to do so

Final Thoughts

Digital rights advocates oppose the DMCA. The DMCA gives too much power to corporations and puts too many restrictions on user’s rights. In this case, as in many other cases, it punishes people who want to follow the law, without actually preventing piracy. Despite all of that, it is still the law.

From a legal standpoint, space-shifting could only apply to a small subset of games, if it applies at all. No one will know for sure until the issue reaches a judge, and personally, I do not want to be the defendant in that case. One thing is for sure, it is illegal to download a ROM file from the internet, even if you already own the game.


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