Tuesday, September 16, 2014

Should Christians Use Emulators And Abandonware? (Part 1)

"Should Christians use Emulators or Abandonware?"

By emulators I mean software made unofficially by one or more people to allow users to play console video games on their PC. By "Abandonware" I mean software that is no longer being supported by its owner that can be found for free download online by unofficial third-parties.

Right up front I'll let you know that I have used unofficial emulators and roms ( "roms" are digital copies of console games) many times and played some Abandonware games. I played the original Japanese Final Fantasy 3 from beginning to end, as well as much of Dragon Quest 6 and some of Final Fantasy 5 on emulators. On top of that I've dabbled in numerous other games through emulation that have been too many for me to keep track of. So I am no stranger to unofficial game emulation and abandonware.

When emulation first came on the scene a number of years ago, the legalities involved were pretty murky and grey. And even in recent years the legal aspects of emulation trigger a multitude of responses when the topic comes up.

On the forums of video game site GiantBomb.com, the question was asked: "Is Emulation Illegal Or
Not"? Here is a sample of some replies:

"Technically yes, but at this point no one gives a crap."

"Do you know anyone who has been arrested for video game emulation?"

"Well, if you've owned the cartridge before, no it's not. But if you haven't nobody really cares at this point."

"Not like you're going to get caught, so doesn't matter. Sorry, but it doesn't. I've done it in the past to revisit some of the older games on SNES that I don't have but have rented long long ago, and wanted to play some GBA games. You're technically not stealing it as long as you don't keep it right? Right.
Oh whatever. Ha ha."

"No one really cares."

"Actual emulation is legal. There's is nothing wrong with one machine emulating another machine, it just when you start stealing software or disregarding licensing agreements things start to get a little dicey."

"I've never heard anyone get in trouble for it. I'm going to call it de facto legal if nobody bothers to enforce the law."

"My policy is ... no one will know if i don't tell em :) (well not really they can find my IP but whatevs)"

"Emulators aren't strictly illegal, and neither are copied games. It's the distribution of copied games outside of personal use that is illegal. Think of it like ripped dvds. While dvd rippers aren't strictly illegal, the distribution of ripped dvds are."

"As far as games and systems that are out of circulation go, they still belong to their respective publishers. It's always a possibility that they might re-release them. It's very rare for games to go truly free, even after going out of print for a long time."

"Its not illegal to run emulator software. Nor is it illegal to make your own roms as long as you have the original. Everyone has the right to create backups of they're own bought goods for private purposes Its when you download a ROM you don't own that it becomes illegal even if the emulator itself is completely legal. For clarification its also illegal to download a ROM of a game you already own since the seeder is not allowed to distribute software that is not theirs. Any Emulator + home made romz of self bought goods for strictly private use is legal."

I've been hearing mixed and contradicting responses to this question for years. And most responses seem to be based on second, third or eighth hand information. Until a few months ago I hadn't really made an effort to look into the issue myself. In part because law can be very complex and technical and I wasn't sure I was equipped to find the answers, nor was I sure that the answers could even be found through the means at my disposal. But if I'm honest, a significant reason I hadn't pursued more understanding of this issue in the past is because I was afraid I might not like what I discovered. This is not a quest any Christian is likely to undertake when they are in the middle of playing an unofficially emulated game or piece of abandonware that they really enjoy. But as I have found myself for awhile now without any games I'm interested in playing through unofficial emulation or abandonware, I've concluded this is probably the best time to hunt down answers that I can consider objectively.

To be clear, I'm looking for an answer to a very specific question. "Should Christians use emulators or abandonware?" I'm not JUST asking if the practice is legal. And I'm not expecting my findings to be applied to non-Christians. I'm specifically asking whether or not a Bible-believing Christian should use a game console emulator.

To answer this question, I think there are four key elements to consider:

1. Is console game emulation legal?
2. What does the Bible say about our obligation to obey man-made laws?
3. To what standard are we held accountable in our obedience to man-made laws and/or the Bible?
4. What are the consequences for Christians who disobey man-made laws or commands of scripture?

The first element will take much longer than the others to examine, I think. So we'll just focus on the legal aspects of the issue this time and try to address the other aspects next time in Part 2.


Tracking down actual legal information on this topic has been difficult, and some might argue inconclusive. I'm no lawyer, so naturally I'm not presenting legal advice here. But the information I found in my search was close enough to reading the actual law in black and white (which I WAS able to do in some cases) to bring me to a conclusion on the issue.

In 2013, a lawyer at the Metro UK entertainment website offered his thoughts on the issue of emulation. I should add that this lawyer stated clearly that he is not a case lawyer in the realm of copyright law, nor should his thoughts be taken as legal advice.  Even so, regarding game console emulators he said:

They are perfectly legal. There has been case law to this effect in both the UK and the USA....The caveat here is that, in coding the software, you cannot use the same lines of code as used in the original code....The problem is when the emulator is used in conjunction with a ROM image, either of a game or of the BIOS file that may be needed to ‘complete’ the emulation (the BIOS file is essentially a copy of the original code used to boot the console).

Link to full article:  http://metro.co.uk/2013/02/16/the-legality-of-emulation-part-1-readers-feature-3479741/

And while we're gaining some international perspective on this issue, there's an important factor worth noting. Because of the Berne Convention, countries are required to respect the copyright laws of other countries. (http://en.wikipedia.org/wiki/Berne_Convention) So for example, if you live in Russia and want to download material that has a U.S. or Japan copyright without permission of the copyright holder, you are still violating the laws of Russia. If the emulator you are using uses the BIOS of the original console it is emulating, your emulator is illegal.

Back to the topic of BIOS files. How can you know what BIOS your emulator is using? Hard to say. Many emulators for older, cartridge-based consoles do not require the installation of the original BIOS file. However this does not mean that the original BIOS is not already a part of the emulator software. However, if an emulator ever requires you to download the original BIOS of the console being emulated from a separate location, this is a big red flag, and likely an indication that they are aware that hosting a copy of the required BIOS themselves would be illegal. If you download the original BIOS of a console on a site not belonging to the copyright holder of that BIOS, you are violating copyright law.

So, is it illegal to use a game console emulator? Yes, if it unofficially makes use of the BIOS from the original console. Otherwise, no, it is not illegal. Good advice would be to stay sharp and be as informed as you can be about the nature of any emulator you use.

All that said, not many people use console emulators without playing games, or "ROMS". Is it legal to use unofficial ROMS?

Some of the best info on this issue can be found on Nintendo's own website. Yes, I can already hear you saying "Well of course Nintendo is going to say it's illegal to play unofficial ROMS. How can you trust the information on their site?" I would respond by saying that if Nintendo were to publicly misrepresent copyright law on their official website, they would be in a HUGE amount of trouble and would have been pounced on quickly for it. But the first time I looked at the legal portion of their website was around a year ago, and shenanigans have not been called on them yet. Yes, you'll sense their one-sided bias in what they write. They certainly don't try to enable the discovery of any loop-holes in the law on behalf of emulation gamers. But I'm convinced that they do not state anything that is false regarding copyright law on their site, and so their legal page serves as a useful resource as we look into the issue of game emulation. Especially since most game emulation is for that of Nintendo consoles and games.

Legal page at Nintendo: http://www.nintendo.com/corp/legal.jsp

With just a little bit of research you'll easily discover that by default it is illegal to use downloaded copies of ROMS. It's very common for gamers to assume that if you own or have previously owned the game you are using a downloaded ROM to emulate, you are protected by your right to have a back-up copy of software that you purchased. It's even more widely assumed that if you delete the ROM within 24-hours of downloading it you are not violating the law. To this Nintendo responds:

"The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet."

Pretty clear cut. However note the exception that even Nintendo acknowledges. If the copy is made BY the actual, rightful owner in order to retain a copy in the event of the original's damage or destruction, it would appear the ROM can be considered legitimate. At least in the UK. (http://www.legislation.gov.uk/ukpga/1988/48/section/50A) I have not been able to locate proof of such a law's existence anywhere else. Please let me know if you find online documentation of a parallel law in the US. However, notice that even if you own the original game, your copy of the game must be made BY YOU in order for it to be legal.

One device suited to this purpose is the "Retrode", which creates digital ROMS using original SNES cartridges.(http://www.nintendolife.com/news/2012/01/turn_your_retro_cartridges_into_roms_legally) But once again, this may only be legal for UK gamers. And as a reminder, I'm no lawyer.

Now, what about the fact that many games being emulated are no longer available for purchase? Have their copyrights expired? Have they become "Abandonware"?
Regarding game copyrights, Nintendo states:

"U.S. copyright laws state that copyrights owned by corporations are valid for 75 years from the date of first publication."

They go on to say:

"the copyrights of games are valid even if the games are not found on store shelves, and using, copying and/or distributing those games is a copyright infringement."

But what about Abandonware? For starters, "abandonware" is not a legal concept. As Wikipedia states, "Although such software is usually still under copyright, the owner may not be tracking or enforcing copyright violations." The "Abandon" part of "Abandonware" refers to the direct involvement of the copyright owner in enforcing the copyright or in supporting the product. It does NOT refer to a lapse in copyright for the product.

In a nutshell, whether the copyright owner of a game is doing anything with the game or not, they still own the copyright and the law is still being broken when a person downloads their games for free without their express permission. This applies to both ROMS and old PC "Abandonware" games.

To sum up the legal portion of this issue, playing unofficially emulated or Abandonware games is illegal in almost every case.

The ONLY scenario I can come up with for being able to play such games legally is if you personally own the original game AND you PERSONALLY created the backup copy (not downloaded it from online) AND you are playing it on an emulator that does NOT use any code from the BIOS of the original console. But I can't even confirm that THIS scenario is 100% legal. So even in this scenario, proceed with caution. And in all other cases, you are violating the law if you play emulated or Abandonware games.

I know for me that's a tough pill to swallow. But maybe it shouldn't be. How important is it really for us as Christian to obey the laws of corrupt, man-made government? Especially laws like this that may seem extremely stupid and pointless at times? What does the Bible have to say about Christians and their relationship to man-made laws and governments? Stay tuned! We'll take a look at that in Part 2!

No comments:

Post a Comment