6 Comments

Summary:

Running emulators to play classic games is illegal, but lax enforcement has blurred the lines. But now that Ouya stands to make a profit, how long will big companies wait to strike?

SuperGNES
photo: Super GNES

Reviews of the Kickstarter-backed, $99 independent console Ouya popped up across the internet landscape last week, and can be summed up in a single sentence: The console has potential, but right now it works best when side-loading popular games and running emulators.

That’s all well and good, but….wait. Aren’t emulators illegal?

To put it simply, downloading a program that will specifically run games that have not been bought and paid for is a violation of copyright. It doesn’t matter if that game is hard to find or no longer available. Even more importantly, it’s not legal for you to download and play a game via emulator even if you already own the game.

“There is a good deal of misinformation on the Internet regarding the backup/archival copy exception,” explains a FAQ on Nintendo’s website. “It is not a ‘second copy’ rule and is often mistakenly cited for the proposition that if you have one lawful copy of a copyrighted work, you are entitled to have a second copy of the copyrighted work even if that second copy is an infringing copy.”

Although the line seems very clearly drawn, Nintendo and other companies from the classic game era don’t necessarily enforce their own rules. While emulation is considered piracy, it’s not used as grounds for prosecution the same way that record labels have gone after some people for downloading illegal songs. Getting arrested for using an emulator is more like an internet urban legend than a cold hard truth, and Nintendo has combated it well by issuing classic games for purchase through its eShop. Paying customers get to play their favorite classic games, and non-paying customers get to play their favorite classic games without a fear of impending prosecution.

But now with the Ouya, other Android-ready consoles, and the hybrid computer/console Steam Box coming out of the woodwork, the nature of the game has changed. Instead of downloading a ROM on a home computer for personal play, a company selling consoles that advertise emulators. Ouya, for example, not only has a handful of emulators available for download directly from their shop, they’re some of the most downloaded programs on the system right now. And while some companies may not have the manpower or the money to pursue Ouya and its ilk for encouraging emulation, Nintendo has the wherewithal to do it — and do it quickly.

The Japanese game pioneer sums up its feelings on the issue clearly:

“Nintendo is famous for bringing back to life its popular characters for its newer systems, for example, Mario and Donkey Kong have enjoyed their adventures on all Nintendo platforms, going from coin-op machines to our latest hardware platforms. As a copyright owner, and creator of such famous characters, only Nintendo has the right to benefit from such valuable assets.”

While this may not be an issue for individual users, it may only be a matter of time before these independent console companies are slapped with advertising the use of emulators to run on their systems. A Nintendo game is still a Nintendo game — and the concept of a frugal user dishing out $99 on Ouya to play Super Mario World or Legend of Zelda: Ocarina of Time on the big screen might not sit too well with the legal team.

When it comes to emulation, the line has blurred so much over the years that it’s hard to recognize it at copyright infringement. But now that potential competitors are making it a staple on consoles, it’s only a matter of time before the hammer drops.

You’re subscribed! If you like, you can update your settings

  1. At the risk of pretending to be a lawyer, I’m fairly sure you are incorrect with, “To put it simply, downloading a program that will specifically run games that have not been bought and paid for is a violation of copyright,” as simply downloading the program doesn’t actually violate anyone’s copyright. The violation happens when the user copies the actual game and runs it on the emulator. Nintendo, for example, would have no standing if they couldn’t say which of their games, specifically, Ouya enabled users to play.

    Now, there may be some federal statute that I am unaware of that says the downloading of an emulator gives people the tools to violate copyright, making Ouya somehow secondarily liable. Or perhaps there’s a rule similar to the paraphernalia sales rule regarding drugs. But by the common law definition, simply providing an emulator is not a copyright violation.

  2. Was this article written by a Nintendo lawyer?

  3. Lars Händler Monday, July 1, 2013

    Simple solution: Nintendo releases a similar console for 99 usd and for a yearly fee of 30-50 usd I can play the complete backlog of Nintendo and Sega games from NES, SNES, N64, Gamecube, Sega Master, Sega Mega Drive, Game Gear, Gameboy grey and colour.

  4. This article is missing a very important point when it comes to the legality of emulators. Emulators are NOT illegal. Downloading ROMs on the other hand, is illegal. However, you don’t have to download roms to be able to play them on an emulator. For example, if you owned an original copy of a PS1 or PS2 game, you can easily just pop the disk into your PC and play them using the appropriate emulators. There are also devices that allow you to rip ISOs from PSP UMDs that you own. And I shall assume the same can be done for Gameboy and NDS cartridges and memory cards.
    Surely this process of extracting data from a CD, UMD or cartridge that you already legally own, to be used privately is legal.
    Hence, emulation per se is not illegal. It is not illegal to play games that you own on an emulator either, provided to play it straight from the CD or from an extraction of the game media. It is however, illegal as mentioned in the article, to download a second copy of a game that you already own.

    Anyway, this whole thing illustrates one horrible truth about the world. The fact that no one cares if you are potentially breaking the law unless there is profit involved.

  5. Emulators are illegal? The US court system disagrees with you. Do yourself a favor and google “Sony v. Connectix”. Spoiler alert: Sony lost, appealed, and lost again.

    If it had gone the other way, none of the Nintendo or Sony emulators in the Google Play store would survive a day, and even emulators of systems from defunct companies like Atari and Commodore would likely be removed as a preventive measure. But it didn’t go the other way, and as a result we’re free to download all the emulators we want.

    Distributing ROMs without permission is not legal, of course, and the fact that you can’t differentiate between the two brings into question your credentials as a technical journalist — is Windows illegal because someone can download a pirated copy of Call of Duty for it? Since software publishers claim the vast majority of copies of their software are pirated, after all, that means that the legal use of Windows is in the minority.

  6. I think, that if you bought hte game you can ply it however you like, it would be fair. Than why emulators themselves are illigal? The android console looks good, it would be sad if we can not use it

Comments have been disabled for this post