Thoughts on Emulation

We start the week by hitting the ground running with a bit of a sensitive issue—digital copies of video games played on software specifically designed to run them.  In other words, we’re talking about emulation.  It’s a bit of a “hot button” issue in the game world, and no matter what there’s not going to be any easy, clear-cut answers for quite some time, if ever.

It’s hard to wade through all of the information available and come away feeling confident in one’s decision.  We’ll first examine one of the things most touted by any side of the issue—copyright law itself.

First things first, we have to say that the entire issue is murky to the point of obfuscation from the ground up.  If you spend any time, at all, looking up information about, say, copying your video games or movies for a “back up”, sooner or later you come across someone saying something like, “And don’t worry, title seventeen of the U.S. Copyright Law allows you to make one copy for your own use.”

Well, that may not be strictly true.

First we have to get into what “copyright” actually is.  At its most basic definition, it’s the legal right to reproduce a work.  You know how, on the backs of game cases (and usually in the manual as well)  there will usually be symbols such as © and ®, and say “All rights reserved”?  That first symbol is the symbol for copyright; it’s there to say that the legal right to reproduce and distribute copies of the game are held by the parent company, and the text is more or less spelling that out.  There are certain, specific legal allowances made, but those aren’t exactly crystal-clear.

As we see in the very first chapter of the Copyright Law, “copies” are defined as material things, and though this was written in ‘Seventy-Eight, thirty-three years ago, as yet none of the amendments, as easily found in the preface have altered that definition.

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

Emphasis added.

The term “phonorecords” is similarly defined.

“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

Emphasis added.

That leads us to another issue—copyright law isn’t really catching up to the current technology save through patches slapped on that don’t actually alter earlier phrasing.  So far, it revolves around the material—even when it talks about “ephemeral recordings“, it still mentions only the transmission of digital information from a material base—a “copy”.

Now, here’s where the whole thing really starts getting confusing.  It does also specifically talk about computer programs, saying that the owner of a copy (there’s that word again) of a program is allowed to make one copy of that copy as long as…

(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 added.

Now, I think it’s safe to say that the second clause is hardly ever even thought about, much less actually fulfilled.  As for the first clause, well, notice the words I emphasized—”essential step”.  Unless making said copy is essential to the usage of the program in question, it’s not allowed.

As you can see from those examples, the legality of the issue is, at best, murky.  As they used to say, the whole thing’s as clear as mud.  There’s a reason it’s said that lawyers “interpret” the law rather than “make” it, “uphold” it, or anything else.

The legality of the issue is confusing and unwieldy.  So what about the morality?  Should someone be allowed to make copies of things they legally purchased from the original owners?  That’s the ultimate question that every argument people get into concerning the topic revolves around.

I’ll admit the oft-touted argument of making a copy for “archival” or back-up purposes is intriguing, even alluring.  After all, sometimes the game disc breaks, a hard drive crashes, or a console gets stolen.  It’s still a bit iffy, but on the face of it the case can be made for it; after all, you did purchase the original through perfectly legal means, and if it’s no fault of your own that the ability to use the product you paid for was taken away from you, why shouldn’t you have a back-up to use?

On the face of it, that’s a fine, fair argument.  It’s when one probes a bit deeper that it starts to get confusing.  Consider “digital rights management”, which is an incredibly broad term that encompasses, basically, the ability of the rights-holder to specify and allow what is and isn’t done with the property they legally own the copyright to.  How digital rights management works is somewhat complex, if only because of the very broadness of the term itself.  We gamers are used to one, very specific application of the process, which is also where most of the controversy comes from.

Unfortunately, one of the usual responses is “I paid for it, so I should get to do whatever I want with it”.  That’s another alluring idea, but that doesn’t mean it’s right.  See the legal tangle up above.  Then, mainly concerning copying more recent works, there’s the notion that one should be able to “test it out”; see if they would actually spend money on it.  In regards to that, I think it’s safe to say that anyone who isn’t satisfied “testing out” a demo of a game, the first few chapters of a novel, and so on, aren’t going to spend money no matter what.

The argument for the allowance of making copies that’s the hardest to refute, and the one most relevant to today’s topic of emulation, concerns older works.  If an older game isn’t available anymore, even on the various console company’s versions of a “retro store”, what’s a gamer to do?  They’d spend money on it, but it doesn’t legally exist, even digitally, to be purchased.

I have a hard time with that one.  As anyone who’s read more than one entry of this blog knows, I am incredibly pro-developer.  Obtaining and using emulations means the developers aren’t getting their fair cut for their incredibly hard work.  On the other hand, how many older development companies still exist?  Further, once a game’s been out for a few years, about the only place you can find a physical copy is a used game store, and they don’t pay developers a cut of the profits anyway (which is a whole ‘nother topic).  So what’s the difference?

It’s that question that’s the hardest to answer.  We can more or less get to a somewhat comfortable position solely on the legality, even though people on both sides fight in the courts every day.  We can get to a comfortable position on the moral side, but only if we stick to recent works.  It’s when the works are not recent and thus unable to be otherwise obtained that it becomes difficult to take a confident stance.

As a gamer, I of course want my fellow gamers to enjoy their games, with the obvious bent toward older games.  It’s just that the ultimate question is hard to answer: When development companies no longer exist to profit from their games, when the games are old enough to not be physically obtained, should emulation be allowed and considered “okay”?

I’ll admit, most of me wants to say yes.  If the product can’t be obtained in another fashion and the development company doesn’t exist to be given money to anyway, why shouldn’t gamers load up their favorite emulation program?

That’s a question that has also been the source of many debates, with as many opinions “for” as there are proponents, and as many opinions “against” as there are opponents.

My opinion is this: I am tentatively for emulation of older games and only older games, and even then only when they cannot be physically obtained in any other way.  If you can find a physical version in a used game store—or on-line—then we know that the developers got money sometime; you might be the third or thirtieth person to own that physical copy, but the first person at least paid their money to obtain it legally, and thus the developers got their fair cut.  As I’ve said before, as long as the developers get their initial fair cut, I don’t see an issue with a physical copy being sold or traded.

Unfortunately, there’s no good way to regulate the issue, though people will try—and others will complain about them.  Ultimately, everyone has to come to their own answer to the issue, unless and until copyright law, at least concerning digital properties, are streamlined and made less confusing.  Until then, the arguments will only continue.


2 Responses to “Thoughts on Emulation”

  1. Elisa Michelle Says:

    I think emulation is an interesting issue. Reminds me a lot about music copying and burning. I’ve never played an emulated version of anything, but if I could get a hold of some emulation of the (non-Nintendo; thank God for the Wii) older games I used to play as a kid, I would. They definitely would be good for the games no longer sold, you know?

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