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.