Copyright Emulator Laws

Emulators want to play

When discussing both copyright and emulators at the same time, it is usually in a conversation about video games. A potential copyright issue might involve video gamers trying to find a workaround after discovering they can't play their favorite old video games on their newer game consoles or computers. They may then try to find a software fix that will make their playing devices compatible enough to play the old video games, which could involve using an open source (free) software download from the Internet. The copyright concerns pop up when the amateur developers of the home-grown software make the application downloads available to others, either for free or for profit. The original creators of the commercial games, operating systems and consoles often view this as an intrusion on their market share for the product(s), even for devices they are no longer producing or supporting.

To Emulate, or Not to Emulate

Reverse engineering

As a very basic example to demonstrate the idea of emulation, think of a curious child who takes something apart to see how it works. The child may then attempt to build his own item, emulating the item taken apart. This is called reverse engineering. Reverse engineering is an important way that many of us learn. Emulation is related to reverse engineering, which involves studying and then imitating the capabilities of a program or device to imitate another program or device.

What the Law Says

Understanding the law is challenging

While there is no specific language in U.S. copyright law that mentions emulation, there are parts of the copyright law that address this issue indirectly, seemingly in the emulator's favor. Specifically, the U.S. Digital Millennium Copyright Act of 1998 addresses reverse engineering as one of six exceptions to the Copyright Act, permitting circumvention for certain situations: "Reverse engineering (section 1201(f)). This exception permits circumvention, and the development of technological means for such circumvention, by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law." Of course, it is that "to the extent that such acts are permitted under copyright law" that immediately brings doubt to the reader and demonstrates why one would require a legal expert to interpret the law for different situations or cases.

Emulators Take Risks

Lawyers interpret and argue the law

Emulators study video playing devices, operating systems and software applications and try to imitate (or emulate) their functions. The actions of emulators can clearly be considered illegal if any copyrighted programming code is used without obtaining permission. However, if the device, system or game was produced by a company no longer in business and the emulator has tried unsuccessfully to contact the company for permission, there is a part of Copyright Law about orphan works that may apply, potentially making emulation allowable under the law. There are many unanswered questions---questions that unfortunately would only be argued and then clarified in an actual law suit.

References

• Northwestern: Use of a Game Over: Emulation and the Video Game Industry, a White Papter
• Law Tech Journal: Video Game Emulation and the Law
• United States Copyright Office: The Digital Millennium Copyright Act of 1998
• United States Copyright Office: Report on Orphan Works