Emulation:  Right or Wrong?
aka "The EmuFAQ"

FINAL EDITION

copyright (c) 1999 Sam Pettus (aka "the Scribe"), all rights reserved

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Module Two:  The Software
Part 3 - Supporting the Software Base

OverClocked #34, "Capital Offense" © 1999 David Lloyd
Today, almost every piece of hardware ... has been emulated, or is about to be; and an expansive scene for emulation has emerged on the [Inter]net.
Howard Wen, "Why emulation makes video-game makers quake," Salon, 4 June 1998
THE END OF AN ERA

     One of the most popular Internet sites on the emulation scene during 1997 and the early days of 1998 was a place known simply as The Dump.  The brainchild of Harry Tuttle, it was at one time the premiere site for Sega Genesis/MegaDrive (G/MD) emulation on the World Wide Web.  It had almost everything you would expect in a first class emulation site - a top-notch webmaster, an excellent site layout, a comprehensive database of information and reviews (for its day), and the largest collection of G/MD "ROMs" to be had above the board.  The only real gripe of its users was its host, ClassicGaming.com, which was notoriously slow and erratic when it came to connections and downloads, but most of its users were willing to forgive this issue for the wealth of other treasures that The Dump offered.  As the site grew, it expanded into two sections, the first comprising the original Genesis site and the second adding support for the Turbo Graf/X 16 - one of Harry's all-time favorite videogame consoles.  Still, it was that part of the site now known as The Dump: Genesis that continued in its flagship role as the G/MD emulation site on the Internet, a role that Harry took quite seriously.  It was a well-known fact on the emulation scene that Harry had or was in the process of getting and posting every single G/MD "ROM" known to be in existence, and there were many who supported him in this endeavor.  As a result, The Dump: Genesis soon became the focal point of a concerted effort by the G/MD emulation community to account for every G/MD title ever made.  Indeed, it was this project that soon made me a regular patron of The Dump in late 1997 and early 1998, and it was as part of this endeavor that I began work on what would eventually evolve into The Genesis Game Guide - the first, but not the last, FAQ that I would write for the classic videogame scene.
     It was inevitable that the high profile of The Dump would cause it trouble with those who felt that videogame emulation was not an innocent hobby.  The day of reckoning arrived on 20 March 1998, and it hit The Dump like a planeload of cement blocks dropped en masse from the nether regions of the stratosphere.  On that day, webmaster Harry Tuttle found an official "cease and desist" order in his e-mail box, delivered courtesy of his ISP and sent to him by the IDSA.  With his permission, I reproduce that infamous e-mail below:

I am writing to you on behalf of the members of the Interactive Digital Software Association ("IDSA"), a trade association whose members include the leading publishers of interactive entertainment software.  Our 45 members publish video and computer games for video game consoles, personal computers, and the Internet.  A list of our member companies is attached as exhibit 1.
It has come to our attention that you are distributing unauthorized copies of our members' copyrighted entertainment software titles - which you characterize as "emulators" - without their permission.  Your statements in the disclaimer posted in your Website, that owning a pirate "backup" to a legitimate copy is false.  The fact that a person owns a legitimate copy does not authorize any party to copy and distribute it without permission.  The owner of the trademark and copyright in that product has the exclusive right to authorize its reproduction and distribution.  As such, your unauthorized reproduction and distribution of our members' entertainment software titles is a violation of their exclusive rights under the Copyright Act, [as well as] federal and state trademark law and the law prohibiting unfair competition.  Your actions are illegal and can result in criminal prosecution and/or civil liability.
On behalf of your members, I demand that you immediately cease reproducing and distributing any entertainment software titles published by an IDSA member and that you delete any copies from your hard drive.  We will be monitoring your Website for compliance with the demands contained in this letter and reserve all right to take any steps necessary to protect our member's rights, title, and interest in their property.  In addition, in the event that you do not comply with these terms within fifteen days, we will pursue other avenues of relief.
Sincerely,
Gail Markels
cc: classicgaming.com
And with that, The Dump: Genesis died.
     There was an immediate firestorm of protest by regular patrons of The Dump.  Angry emails poured into the IDSA, decrying their action against the forced shutdown of this and other similar sites around that time.  Harry Tuttle himself received his own share of angry emails protesting his perceived cowardice, and one lamer even attempted to send him an email bomb as a sign of protest.  None of it mattered.  The Dump was dead, as far as G/MD emulation was concerned, and the emulation community would just have to get used to it.  There was talk and even some plans of bringing The Dump: Genesis back as an info-only site, but nothing ever really came of it.  Nobody's heart, not even Harry's, was really in the effort.  What was The Dump without its "ROMs?"  That was what had built its reputation in the first place.  To many classic gaming fans, it just wouldn't be the same without them.  The Dump staggered, reeled, lurched on, and eventually recovered almost two years later, but it never was the same.  Its vast G/MD "ROM" archive was forever lost to the community.  As it turned out, it was but one of many casualties from the IDSA's "great sweep" of 1998, which started on that black day and would continue through the spring and summer before finally tapering off in the fall.  The shutdown of The Dump: Genesis marked the end of the Golden Age of Emulation, and terminated what old hands in the emuscene call its "salad days" - a time of unbridled restraint that is now forever lost to future emufans.

THE IMPACT OF THE INTERNET

     As it has with every other aspect of the computer industry, the Internet has greatly expanded both the possibilities and the reach of the emulation community.  It allows potential developers to trade ideas and test programs, as well as provide a common media through which they can converse with their testers.  It allows fans to establish a support network, however haphazard that may be, for whatever emulation products they prefer to pitch.  It allows vendors to monitor the progress of attempts to efforts to replicate the functions and support of their original products, or perhaps another vendor's product, and possibly consider the commercial implications of such.  Finally, lest we forget the common complain of the software industry, it also provides a free and largely unchecked medium whereby both old and new computer software and videogames can be rapidly distributed to and from worldwide locales an in a manner the likes of which has never been seen before.
     Those of us who were around back in the old days, when emulation was first legitimized, did not have the luxury of the Internet at our disposal.  We had to do things the old fashioned ways:  "sneakernet," word-of-mouth, friendly visits to a friend, pinching pennies for neato yet expensive products, and finally the good old-fashioned "copy party."  All of that has changed with the arrival of the Internet.  While us old-timers like to romanticize about those days and what they meant to us, I wouldn't want them back.  The Internet is where the action is at, and that is where the bulk of system support now takes place.
     As with anything related to computers, though, the Internet is a double-edged sword.  What works for the honest vendor works equally well for the software pirate.  What provides convenience for software support also provides opportunity for software bootlegging.  The infamous copy parties of old are now about as dated as a horse-drawn cart on a freeway, what with all of the various "warez" sites out there one can visit..  The twin edges of the Internet's blade continue to enter more and more homes around the globe every year, and almost all  home users gets a taste of both sides sooner or later.  Overt and covert ... aboveground and underground ... legal and illegal ... these are the twin sides of the computer support coin, and they will be with us as long as computer systems remain a viable commodity.
     So how does the Internet support the emulation community?  How should the Internet support it?  How would some like to see it supported, and how is it actually supported?  These and other issues are what we shall now discuss.

THE TYPICAL EMULATION SITE

     If you bounce around the various Internet sites dedicated to the emulation community, you'll see that they aren't all that different from sites devoted to other subjects.  They have their news, message boards, editorials, "rants," and so on.  They can have simple text-oriented layouts, or they can be flashy Java-driven affairs.  They may or may not have "banners" and "pop-ups" (read "Internet advertising," i.e. "commercials" - ugh!), and they may or may not use "frames" to better compartmentalize the layout of the site.  Many put up graphics content related to their favorite software, along with screenshots, box art scans, graphics "grabbed" from their favorite programs, and so on.  Many will post "links" which you can use to jump to other related sites.  Also, like many computer-oriented sites, almost all will have a download section where you can get what emulation-related software that the site offers.  Even with all these commonalities, though, there are several things that set an emulation site apart from its Internet brethren, and the chief places to look will be in the links and downloads sections. In most cases, your average emufan is looking for four things: emulators, "ROMs," patches, and links.  I have taken it upon myself to nickname them "the four basic food groups of emulation."

In addition to your "four basic food groups," more sophisticated emulation sites offer several "side dishes" for those with advanced knowledge and skills.  Here are two prime examples, but there may be others to consider as well. WHAT IS LEGAL AND WHAT IS NOT

    All of this wealth of material available for use by Internet emulation sites immediately begs the questions:  "Is this stuff legal for me to post?"  The question isn't as simple to answer as one might think.  In some cases, the answer is "Yes," but in some cases the answer is "No."  In addition, a lot of the perceived legality has to do with the objections of the vendor.  A surprisingly large number of them choose to remain silent on the subject, which most emufans take to mean than their actions are perfectly legal.  This is a mistaken assumption, but a quite common one that many make.
     So why don't most vendors object to the emulation scene?  It is difficult to say, since about the only ones who will even discuss the subject are the ones who are loudly objecting to the use of any of their products that are in some way affected by emulation.  At the risk of speaking for the silent majority, though, let me offer a common-sense theory - and mind you, this is just a theory and nothing more. The bulk of vendors do not object to emulation because it is too small a matter for them to really care.  In the majority of cases, the vendor product affected is either off-the-market or about to fall victim to that horrid economic calamity.  There's no money in it anymore.  It no longer has a perceptible impact on profit margins.  That seems to be why they don't care.  Now, before you start celebrating and jumping for joy, fellow emufans, that doesn't mean that they've totally lost interest in their product, nor does it mean that they've given up their intellectual property rights. Anytime they want to object, they can do so as long as their product's intellectual property protection remains in place.  So what if that game hasn't been on the market for almost a quarter of a century?  If they perceive a new market for their product, in this case growing popularity among emufans, then they may just decide to "reclaim" their product.  They may be planning to possibly remarket it at some future date, or they just don't like the idea of not receiving any royalties from its widespread distribution by the emulation community.  Whatever the real reasons may be, and they have no obligation whatsoever to reveal them to emufans, they have the full legal right to do whatever they want with their products. If they want to deny the use of their products to the emulation community without proper compensation, then that is their legal right.
     Above all else, what you must understand is that legal restrictions on the use of material covered by one or more forms of intellectual property protection do not end once that material appears on the Internet.  This concept of the law stopping at "the water's edge," as it were, also known as the "free flow of information" principle, was a common mistaken assumption early on in the frontier days of the Internet and actually succeeded in winning one solitary court battle in this regard (United States v. David LaMacchia, 1994), but that misguided notion has long since been laid to rest in subsequent legal action (RTC v. Netcom, 1995, is but one example among many).  The U.S. Supreme Court has ruled in the past that "certain minimum contacts with [a forum]" are legally valid so long as they do not "offend 'traditional notions of fair play and substantial justice'" (International Shoe v. Washington, 1945).  The immediate effect of their ruling was the passage of the various "long-arm" statutes by both federal and state governments that allow for the prosecution of criminal or civil offenders across geographical or political boundaries.  The Internet is considered to be such a forum - it crosses all boundaries, such as local, state, provincial, regional, federal, international, and so on - and as such is eligible to be covered by any "long-arm" statute that may be brought to bear in an intellectual property dispute.
     So how do you determine potential jurisdiction in an Internet-related dispute?  The U.S. Supreme Court has addressed this issue by developing a three-part test to determine possible jurisdiction in such disputes (Asahi Metal Industry v. Superior Court, 1987), and the third part lists five fundamental factors to determine the fairness of such prosecution in a cross-border forum.  I shall hereafter refer to this as the Asahi test due to the case that set the precedent.

  1. The defendant must purposefully avail itself of the privilege of conducting business in the forum.
  2. The cause of action must arise out of the defendant's activities in that forum.
  3. The exercise of jurisdiction must be fundamentally fair under the following five factors:
    1. the burden on the defendant
    2. the forum state's interest in adjucating the dispute
    3. the plaintiff's interest in obtaining convenient and effective relief
    4. the interstate judicial system's interest in obtaining the most efficient resolution of controversies
    5. the shared interests the several states have in furthering fundamental substantive social policies
Again, as with all other forms of intellectual property infringement, it is up to the owner of that property to establish that a valid infringement has taken place.  "Long-arm" statutes are governed under rules 4e and 4f of the Federal Rules of Civil Procedure, and the courts have generally held that intellectual property infringement is prosecutable under same.
     Now that we up to speed with regard to original vendor concerns and how they could prosecute possible infringements via the Internet, let us take a look at the "four basic food groups of emulation" on the Internet and see how vendor concern plays into their true legality.

EMULATOR DISTRIBUTION REVISITED

     Remember our discussion not that long ago about releasing an independently developed software-based emulator?  That's a bit of a mouthful, so let's start using a comparable term - a freeware emulator.  A freeware emulator is an emulator that has been placed into the public domain by its authors without restrictions of any kind.  Almost all independently developed software-based emulators are freely available in the public domain, with only a rare handful offered as shareware.  In addition, some vendors of commercial emulators will offer test copies or crippleware versions of their products as freeware emulators, with bleem! being the most recent and well-known example.  As you may also recall, there are only two major areas of concern with regards to emulator release:  who originally vended the system being emulated and how old that technology might be.  To put it more formally, webmasters who would like to post a freeware emulator have to worry about both the emulator's legal status and its economic impact with regards to both the original system vendor and its licensees.
     The legal status of a freeware emulator comes into play whenever intellectual property disputes arise.  As you will recall, it is a common practice for an original vendor who objects to an emulator that is not their property - an "in-house emulator" as opposed to a freeware emulator - to claim patent, copyright, or trademark infringement in one or more ways.  To borrow the example of a commercially vended emulator, Sony's claims against the Virtual Game Station videogame console emulator by Connectix were based upon the copyrights of the PlayStation BIOS code (violation of the U.S. Copyright Act) and the patents on the PlayStation hardware (violation of the U.S. Patent Act).  To cite another example, this time from the burgeoning crop of freeware emulators, Nintendo took action against the developers of several different GameBoy emulators due to their unauthorized display of the Nintendo corporate logo upon startup, which was a clear-cut case of trademark infringement (violation of the Landham Act).  As a result, posting a freeware emulator for a commercially vended system, especially one that has not been emulated before, is always a risky venture.  Finally, never forget that posting an unauthorized BIOS dump is always illegal.
     The economic impact of a freeware emulator is perhaps the most important concern to an original system vendor.  As we mentioned before, it is not generally acceptable to emulate a system that is still economically viable.  Yes, it has been done and will continue to be done, but the legal risk to the emulator development team decreases exponentially with the age of the system in question.  The newer the system, the greater the risk to emulate.  Systems which are still on the market pose the greater risk, and the newest systems pose the greatest risk of all.  Epsilon and RealityMan's UltraHLE, a freeware N64 released to the public when the actual videogame console itself had only been on the market for just under three years, is perhaps the most oft-quoted example to date, but it is not the only one.  Christian Bauer's Shapeshifter, a shareware Mac emulator for the Amiga first released in 1993, is an older example of this principle in action - although Apple's experience with A-Max meant that Shapeshifter was left for the most part left alone.  In general, the greater the potential economic impact of a freeware emulator, the more likely the original system vendor is to object.
     It is at this time that we should also discuss in brief a related topic that has reared its ugly head in recent months - the pirating of a commercial emulator.  Yes, not even emulators are immune from the activities of the software pirates.  It is now an open secret that a bootleg version of the commercial PSX emulator bleem! has been available on the "warez sitez" ever since its commercial debut.  I could name names and give appropriate URLs, but I won't.  This is not the first time that this has happened - remember the A-Max bootleg? - but bootlegging a commercially vended emulator is just as illegal now as it was then.  It is illegal to distribute a commercially vended emulator without the authorization of the vendor.  If you do, then you are just as liable for charges of software piracy as if you were posting any other kind of bootleg software.
     What does this mean for webmasters of emulation sites?  It means that you had better be reasonably certain that the emulator(s) you are making available for download are valid public domain products.  If there is the least bit of doubt with regards to a given emulator, then don't post it.  Is it really worth being the first with a new emulator if it means getting your site shut down?  Let someone else take the legal hit, and that way you don't have to worry about any flak from the vendors and their allies.

THE LEGALITY OF "ROM" POSTING

     There is only one court case that I will mention concerning the posting of "ROMs," but it is key to anyone who is planning on establishing an emulation site with "ROMs" being an integral part of their download section.  Although it dealt with an  old-fashioned electronic BBS, its impact on the Internet is obvious.  That case is Sega v. MAPHIA, 1994.
     Chad Scherman, aka "Brujjo Digital" (among other aliases) was a computer hacker living in San Francisco, California who was both operating and networking with a series of computerized bulletin board systems (BBS) in and around the city.  These fell under the moniker of pirate BBS due to a number of illegal activities that were both promoted and conducted on these boards - the chief of which were Psychosis and MAPHIA, all of which were linked together under a loose alliance named PARSEC.  Among the many activities that Scherman conducted on MAPHIA was the posting of unauthorized copies of Sega Genesis videogames in cart dump format.  These were uploaded by PARSEC members or Scherman himself and collected primarily on the MAPHIA BBS, where they were made freely available to anybody who wanted them.  This was done by and with the full cooperation of Scherman and his buddies, with numerous message posts and documentation files available on the MAPHIA BBS describing how to dump the originals via a cart dumper and how to patch or fix the resultant dumps in order to make them work properly.  Most importantly, Scherman charged fees for his copies and his services, as well as for the information available on and material sold through PARSEC and its allies.
     On 17 December 1993, Sega filed for court action under federal and state law against Scherman's activities, resulting in the complete shutdown of the PARSEC network and confiscation of all of its properties.  Sega filed the following charges against Scherman's activities under the then-current forms of U.S. intellectual property law:

On 28 March 1994, the U.S. District Court, Northern District of California, ruled in favor of Sega on all counts.
     Sega v. MAPHIA is considered to be the guiding case when it comes to the illegality of "ROMz" and "warez" sites on the Internet.  I have listed below some of the chief points from Judge Wilken's ruling on the matter that are of prime concern to those of us within the emulation community. In short, there is no legal basis for the existence of "ROMz sitez," nor is there legal cover for other emulation sites who wish to post unauthorized "ROMs."
     So which "ROMs" are legal to post on the Internet and which are not?  The answer is quite clear - only those products whose authors have approved their widespread distribution without recompense or restriction are safe for posting.  As far as the emulation community is concerned, there are three broad categories of "ROMs:" THE POSTING OF PATCHES, DOCS, AND UTILITIES

     So if it posting emulators is for the most part okay, and if is okay to provide public domain "ROMs" for them, then what about other kinds of emulation-related materials?  Well, it depends on the material in question, and I shall deal with it in three broad categories - patches, documentation, and utilities.

THE LEGALITY OF LINKING

     Perhaps the most misunderstood form of intellectual property abuse on the Internet is the hyperlink, or "link" for short.  This innocent-sounding item is actually a HTML tag that permits a user to immediately access data on another site from the site they are on.  It can be a direct link, in which the user is immediately transported to the other site; or it can be an indirect link, in which the item is merely made available for immediate reference or download by the user.  The practice of linking has been around almost as long as the Internet itself; however, its legality is frequently misconstrued.
     Is it legal to provide links on your site?  Not always.  Okay then, is it legal to provide links to other sites?  Same answer - not always.
     "Huh?" you might ask.
     Your right to put anything you want on your Internet site ends as soon as intellectual property protection enters the picture.  It is now a common practice to make both copyrighted and trademarked material available on the Internet.  Patented software's impact is minuscule in comparison, but its day is coming, too.  Remember, the owner of a piece of intellectual property has the exclusive rights of distribution and usage of that work, which they can grant on as wide or narrow a basis to whomever they want on pretty much whatever terms they want.  In addition, there is a growing body of case law that deals specifically with Internet linking and what you can and cannot do or use with regards to copyright material.  While a full discussion of these cases is beyond the scope of this document, I do want to take a moment to deal with the one that appears to have started it all.
     In Shetland Times v. Dr. Jonathan Wills and Zetnews Ltd, 1996, the principle was established that the practice of linking can be governed under intellectual property law with regards to perceived infringement or violation.  The actual case itself involved trademark infringement within the United Kingdom and was judged by Lord Hamilton at the Court of Session, Edinburgh, Scotland, but has served as the yardstick by which Internet intellectual property disputes around the world are judged (for an example within the U.S. based on the Shetland case, see Futuredontics v. Applied Anagramics, 1998).  Also, in Intermatic v. Toeppen, 1996, it was established that infringement can occur regardless of the place of residence of the offender.  To wit, any kind of link that involves the unauthorized use of commercial materials or directs a users to or from a commercial site in an unauthorized manner is illegal under copyright law.  The Futuredontics case extended this to include "framed" material as well.
     If you plan on operating an emulation-themed site on the Internet, then you need to be careful not to include any kind of infringing links on that site.  Below is a list of the most common pitfalls to avoid in this regard.

Providing a link to infringing material which can be accessed on your site or an entirely different site.
It doesn't matter whether or not the infringing matter is on your site or somebody else's, nor does it matter if either of the sites in question are in entirely different physical locales.  "Long-arm" statutes allow for the enforcement of of intellectual property laws with regards to violation in a valid forum such as the Internet regardless of where, when, and how the infringement takes place (CompuServe v. Patterson, 1996).  As far as the law is concerned, the only issue at stake is who gets jurisdiction - hence the Asahi test.
Constructing a link so that the actual link itself contains infringing material.
Use of a registered trademark (a name, phrase, or graphic) as a link is illegal outside of three specific exceptions.  The first is in making a link that takes you directly to the home page of the trademark owner's Internet site (Playboy v. Universal Tel-a-Talk, 1998).  The second is in making a link that is obviously critical of the trademark owner and does not come from internal or former (read disgruntled) sources, as open criticism is protected under the First Amendment right of free speech (Bally v. Faber, 1998).  The third, and perhaps the one most important to a site dedicated to emulation, is the use of a trademark when such is absolute necessary to describe the subject matter at hand (Playboy v. Welles, 1998).
Utilizing infringing material to support a link or linking system.
While I am not yet aware that this has actually happened, it is worth noting due to the rise of software patents.  If a link uses patented code or a patented process without the authorization of the patent holder, then such use would be illegal.  This does not apply to search engines, as the search engine is a generic concept (In re Compton, 1994).  It is still theoretically possible, however, to construct a link that might illegally employ a program that contains unauthorized patented code, and there are similar examples to be found in the regular computer software industry (Stac v. Microsoft, 1994).
Bypassing the intended operation of another site in an unauthorized manner by means of a link.
The case that set the precedent for intellectual property infringement on the Internet (Shetland v. Wills and Zetnews, 1996) established this principle from the beginning.  The Shetland Times had established a set procedure on its copyrighted Internet site whereby users could access news stories.  Zetnews bypassed that procedure, and the Edinburgh Court of Sessions found their actions to be illegal with regards to Scottish copyright law.  The United States and other Berne, WCT, and WPPT signatory countries all acknowledge the Shetland precedent.  In other words, if you want to provide a direct link to something on somebody else's site, then you need to get their permission first.  If you don't, then you could be found guilty copyright violation under the Shetland precedent.
FAIR USE AND THE INTERNET

     So, if intellectual property protections also extend to material transmitted via the Internet, then the principle of fair use should also extend, right?  Yes, it does, along with its inherent limitations.  They are the same ones that we talked about earlier when discussing the unlawful duplication of computer software.  It is because of the free-wheeling nature of the Internet that "fair use" issues tend to get a little murky, and this principle is seemingly used at will by both webmasters and users to justify almost any practice under the sun.  While a complete discussion of fair use as it exists on the Internet is beyond the scope of this document, I would like to take a moment to see how it applies to the emulation community.  Legal precedents exist that an emulation site  must follow with regards to perceived intellectual property infringement on the Internet.
     Remember our discussion of "fair use" and copyrights?  This begs the question: "Is it legal for me to use copyrighted material on my Internet site?"  The answer is, "NO - not without the consent of the copyright holder."  If you will recall, copyrights can be used to protect any form of expression.  In the digital age, this includes any and all types of computer code and digital audiovisual works:  programs, programming languages, program source code, specialized databases, expert systems, unique sound and/or graphic creations, specialized computer software (such as but not limited to games, applications, and operating systems), and any digital reproduction of the old-style media.  You may also recall that only non-commercial ventures qualify for the safe harbor provision of fair use under copyright law; in other words, you have to be a bonafide educational institution or non-profit archival service in order to be exempt from prosecution for duplication of copyrighted material.  The average website does not qualify for the safe harbor exception unless it is owned and operated by one of the aforementioned organizations.  You can't even use original, noninfringing material you find on other web pages without the express permission of that site's operators, since your use of their original material constitutes copyright infringement on your part.  Therefore, it is illegal for you to use any form of copyrighted material in the design and layout of your site without the copyright holder's permission (RTC v. Netcom, 1995).  As a caveat, I remind readers that it is the responsibility of the vendor to make the charge once they learn of such an act; otherwise, they lose their right to do so after a set period of time.
     One of the most annoying assaults by a vendor upon a Internet site made by the fans of one or more of its products is to claim trademark infringement.  In almost every case, the vendor will claim that the site in question is making improper use of one or more of its trademarks, and that such usage has not been authorized by the vendor in any way (Maritz v. Cybergold, 1996).  It may interest you to know that emulation sites are not the only ones who suffer from this practice.  The computer industry as a whole is affected by charges and counter-charges of trademark infringement, with Nintendo being one notable example in the videogame industry.  In fact, there are many fan-based Internet sites for popular products, not all of which deal with computer software, who have been taken to task by the corporate big boys for perceived trademark infringement.  Do the names Paramount, LucasFilm, and Disney ring a bell?  All of these corporations have at one time or another gone after Internet sites for their unlicensed use of their registered trademarks.  If you are the webmaster of an Internet site, then you by now probably asking yourself this question:  "Is it legal for me to use a trademark on my site without authorization from its owner?"  The answer is "Yes, but only under certain conditions."  What are they?  They are the same as the three exceptions for linking - a direct reference or credit to the trademark owner, obvious criticism by a non-employee or recent former employee of the trademark owner, and absolute essential use with regards to site content.  These exceptions are interpreted rather strictly by the courts, so you need to keep that in mind before you start using trademarks on your site.

THE DMCA AND THE INTERNET

     The passage of the Digital Millenium Copyright Act in late 1998 codified many of the legal issues that had been raised in recent years with regards to intellectual property protection in the computer age.  While it was not the law that both the Clinton administration and the vendors originally wanted (that was the National Information Infrastructure Copyright Protection Act of 1996, which failed to clear Congress), nevertheless it gave vendors a new set of cudgels with which to beat unsuspecting infringers.  We have already seen how it has had a major (and in certain cases detrimental) effect on programmers, developers, and users of computer software.  We shall now see where it has its greatest effect, and that is the Internet.
     Think about the term ISP for a moment.  It is an acronym for Internet service provider, and in its simplest sense means one who provides access to the Internet.  The DMCA definition is somewhat more elaborate, in which an online service provider, or OSP, embodies the dual concepts of communications (connection, transmission, routing, etc.) and online services (information, storage, caching, directories, linking, et. al.).  Such a broad definition covers every conceivable activity that can take place on the Internet, which means than anybody who qualifies as an OSP under federal law is also legally liable for ensuring the sanctity of intellectual property protection.  Since this discussion is limited to just Internet-related issues, I will to stick to using the more familiar term of ISP; however, keep in mind that ISPs are covered under the DMCA's broad definition of an OSP.
     The DMCA recognizes four major areas in which an ISP could be held liable for intellectual property infringement.  These are as follows:

     ISPs are by their very nature passive organizations.  They provide a means and the methods by which their users operate; they are not nor should be a babysitting service.  In theory, all they should have to do is provide the connections, provide the storage space, and then sit back and collect the user fees.  Right?  Well, that's how it should be, but that's not the real world. The activities of many an unscrupulous user (or employee, in certain infrequent cases) coupled with possible legal liabilities should one of their users break one or more laws can cause major headaches for an ISP's management team. Like any other business, they don't want to mess with the courts.  Lawyers are expensive, and court cases take a long time to resolve.  That's dollars lost in potential profit, and enough losses over a long enough time will put them out of business.  If there is any way they can legally get off the hook at minimum cost (preferably none), they will.  Thanks to the DMCA, their "out" has now arrived in the form of the Online Service Provider Liability Limitation Act, which adds yet another new section to the U.S. Copyright Act dealing specifically with the legal liabilities of ISPs (17 USC 512).
     So how does an ISP avoid legal liability for the activities of their users?  The DMCA provides the following broad guidelines for any ISP who wants to protect itself in this regard:
  1. The ISP must maintain a written policy with regards to repeat offenders of site hosting guidelines, up to and including termination of service.
  2. The ISP must have a full-time representative who can both interface with individuals and organizations claiming intellectual property infringement.  This representative must be clearly identified and full contact information provided by the ISP to both it users as well as the federal government.
  3. The ISP must provide any and all information as necessary to interested parties under the terms of federal law with regards to any intellectual property violation(s) on the part of one or more users.  It is the responsibility of the ISP's official representative to act as liaison in this regard.
  4. The ISP must promptly respond to any and all perceptions of intellectual property infringement.
The main point is that every single ISP who wants to avoid any legal liability must develop a legal intellectual property protection policy, make sure that this policy is clearly understood by all parties involved, and strictly enforce that policy when it comes to dealing with possibly infringing material.  In addition, the DMCA has some specific things to say concerning certain areas of possible intellectual property infringement that might affect any claim that the ISP may lay to the "safe harbor" provision laid down for OSPs under the DMCA:
 
Storage and linking
    1. The ISP must not know that the material or link in question is infringing.
    2. The ISP must not have any information that would make them aware of the infringing nature of said material or link in question.
    3. The ISP must act expeditiously to block or remove access to said material or link as soon as it is made aware of its infringing nature.
    4. The ISP must not receive any kind of financial compensation with regards to the infringing material or link in question.
    Caching
    1. The storage of cached infringing material must not have been provided as an active service on the part of the ISP (the DMCA mentions the use of an automatic technical process that does not involve any direct ISP participation, and such processes are commonly understood to include routine automated server operations).
    2. The cached material is passed on without comment or modification by the ISP.
    3. The caching process used conforms to standard industry guidelines.
    4. The caching process used does not interfere with any information about the material that might be passed back to its originator (such as cookies, bots, and other such standardized data gathering mechanisms).
    5. The ISP must conform to any conditions or requirements placed on the material by its originator (such as limited access or payment-for-use provisions)
    6. The ISP must promptly remove any cached copy should the original be deemed infringing.
    Transmission and routing
    1. The transmission or routing of infringing material must have been originated by someone other than the ISP (such as one of its users).
    2. The ISP must not be actively involved in the transmission or routing process (again, the term automatic technical process pops back up, and this provides cover for such routine user activities as web site maintenance, posting, uploading/downloading of files, or anything else in which the ISP does not have a direct influence).
    3. The ISP must not be actively involved in selecting the recipients of any infringing material (i.e. an automatic technical process selects the recipients instead of direct action on the part of the ISP).
    4. The ISP does not copy the infringing material for anyone other than the user(s) involved, nor do they maintain any copy of said material for any period longer than is reasonable for normal communications processes.
    5. The ISP does not modifiy any material that passes through its system in any way.
Once the ISP is in adherence to the guidelines laid down in the DMCA, then they qualify for "safe harbor" protection as defined under the appropriate sections of copyright law (17 USC 512.n).

A MATTER OF PERCEPTION

     Does this mean that your ISP is now required to have the "software police" monitor any and all activities in order to ferret out any perceived offenders?  Of course not.  Remember, an ISP is by its nature a passive business.  They are not under any obligation to monitor everything you do with their service, nor would it be cost-effective to do so.  Most assume good faith practices on the part of their users, and such is quite common across the Internet.  In other words, they won't mess with you unless you do something that they don't like.  Their passiveness ends if and when they determine that you are doing something not in accordance with their policies.  Any form of perceived intellectual property infringement is almost always a violation of those policies (or should be - *wink*). Once they know that you might be breaking the law, then your ISP is required by law to do something about it then and there, else they will become legally liable for your actions.  It is often impossible for an offended party to track down the source of the offense if it was performed on the Internet; however, the ISP is almost always known and therefore a legitimate legal target.  If they can't prosecute the offender, then they can and will prosecute the ISP, unless the ISP can show that they have taken action against the offense in accordance with federal law.  This is called vicarious infringement in legal circles, or more commonly contributory infringement.  In plain language, it means that they can hold the ISP as an accomplice to the offense.  The last thing that an ISP wants is one or more intellectual property violation charges laid at its doorstep, so you can bet that they will act as soon as they hear about any such acts on their service.  That's why you might log on one day to find that your favorite emulation site has suddenly gone down without warning.  The ISP took them down in response to an official complaint about something that was on the site.  It doesn't matter what it was, or whether or not the complaint was based in fact.  If an ISP perceives that one of their hosted sites might be violating official policy, regardless of whether or not that perception is based in fact, then they have every legal right to shut the site down.
     So how do you, the emusite webmaster, find out that you have offended your ISP?  How do you then deal with it?  The following procedure will sound familiar to anybody whose ISP has shut down their emulation-related site since the passage of the DMCA, and is in fact the procedure that has been established by that law:

  1. The ISP must immediately remove any and all access to the infringing material in question.
  2. The ISP must immediately serve notice to the infringed party that they have taken appropriate action in their regard.
  3. The ISP must also promptly serve notice to the infringing user(s) that action has been taken against them.  They must describe the nature of the/each infringement, what action was taken in regards to the/each infringement, and finally what additional actions will be taken in accordance with ISP policy should the user(s) persist in infringing behavior.
  4. The user(s) in question has/have the right to file a counter notice, under penalty of perjury, to prove that the material or activities in question are not infringing with regards to the intellectual property rights of the infringed party, unless the matter is referred to the courts.  If the user(s) can prove their case to the satisfaction of the ISP, then the ISP must immediately inform the infringed party that the infringing material is being restored, state why it is being restored, and then restore access to said material within fourteen (14) business days of notifying the infringed party.  If the infringed party elects to file a court action over the material in question, then the ISP has no obligation to restore said material.
     While this procedure does not keep the courts from becoming involved should any infringed party press the issue, it does limit any liability to which the ISP in question can be held.  After all, they are acting only in accord with the strict letter of the law (17 USC 512), and as such any action that can be taken against them by an infringed party is limited by that law.  If the ISP complies with the DMCA with regards to any infringing material on their system, then they cannot be held liable for that material.  It is the infringing user(s) that must held liable for said material, as the user(s) are the one(s) truly at fault.

INTROSPECTION

     Needless to say, the operation of an Internet site devoted to emulation is a bit tricky due to the various legal complications involved.  I know that people are going to do it anyway, and most vendors won't object so long as you keep your nose clean.  So what have we learned in our look at emulation and the Internet?

It is within the rights of the owner of any patented, copyrighted, or trademarked material to object to its use on an emulation site without prior approval.
This can take many forms, but almost all of these fall within the "four basic food groups" of Internet emulation - emulators, "ROMs," patches, links - or one of the "side dishes," such as documentation and utilities.  Case law and subsequent legislation have decreed that the Internet is a legally governable forum, and perceived intellectual property violation can be taken against any Internet-based infringement.
It is not illegal to distribute a freeware emulator that is legal in nature.
The two things that determine the right of free distribution are the legal status and the economic impact of the emulator in question.  Once those two issues are resolved to the satisfaction of all parties involved, then the emulator may be freely distributed without fear of prosecution.  It is illegal to distribute a current or former commercial emulator without authorization, however, as the distribution of commercial products regardless of age is protected by copyright law.
"ROMz sitez" and any other kind of site making copyrighted "ROMs" available without authorization are clearly illegal.
Case law (Sega v. Maphia, 1994) has clearly determined the factors by which such sites are legally culpable for intellectual property infringement.  Such sites are prosecutable under appropriate federal, state, and local statutes, as well as any "long-arm" statutes that may come into play, for actions that are clear and deliberate violations of various intellectual property laws.  The only kinds of "ROMs" that are safe to post are those of either public domain or inactive commercial in nature.
Freeware support for emulation is governed by the same intellectual property laws that govern the emulator and its software base.
The principle of emulation is no excuse for voiding the intellectual property rights of a program author or vendor by producing an infringing patch, infringing copies of documentation, or by coding an infringing utility.  Vendors have as much right to object to these forms of emulation support as they do to emulators and "ROMs."
The practice of using links that involve the improper use of or connection to unauthorized material, regardless of the site or origin or usage, can be considered a form of intellectual property infringement.
A link serves as the gateway to further broaden one's base of knowledge.  Because of its nature, it is subject to the same restrictions as any other format that interacts with various forms of intellectual property.  There are four ways to create an infringing link:  accessing unauthorized material on any site (the traditional definition), including infringing material within the link itself (such as a trademark), using an unauthorized process to enable the link (such as patented computer code), and using the link to enable unauthorized access to portions of a copyrighted site regardless of the legitimacy of the link's actual destination.
The same restrictions that govern claims of "fair use" in the physical world also apply to the Internet.
In general, any activity that would not past the "fair use" test with regards to possible infringement would also be considered an infringement on the Internet.  The "water's edge" theory about unhindered distribution of material on the Internet was never valid in the strictest legal sense and has long since been laid to rest.  Claims of activity in the public good must also be balanced against the other three parts of the "fair use" test before one can even consider qualification for the "safe harbor" provision of copyright law.  The principle of "fair use" of copyrighted or trademarked material on the Internet is recognized, but this does not extend to wanton unauthorized use.
Internet service providers (ISPs) have the legal right to block access to parts of or to shut down entirely any site once they are informed that it might contain some form of possible intellectual property infringement.
The ISP is required by law to act once they are aware of such a claim, otherwise they also become legally liable for any and all infringement taking place on the offending site that they are hosting.  There is a set procedure under law whereby an infringed party must first notify the ISP of possible infringement before the ISP can take action.  Any party operating a site whose access is blocked either in part or in full by the ISP for possible intellectual property infringement has the right under law and under penalty of perjury to counter the infringed party's claim.  Should the counter-claim prove valid and the infringed party elects not to pursue the issue in court, then the ISP is required by law to restore full access to any blocked material.
     This ends our formal discussion legality of the issues of emulation.  With this, we also end our overview of the current state of emulation, as it has developed from its beginnings and gradually moved to the point where it sits today.  You now know that emulation is legal, provided that the appropriate intellectual property and economic impact issues are properly addressed.  You now know that obtaining, using, and providing software for an emulator is also legal, provided this is done under strict guidelines - more restrictive in certain cases, such as console and arcade videogames, than for regular computer software.  Now that we know exactly where the law and the courts stand in this regard, where do we go from here?  Where does emulation stand with respect to the rest of the personal computer industry?  Given our past experiences with personal computer emulation and current technological trends, how should dedicated system vendors, such as those for console and arcade videogames, respond to emulation within their venues?  These topics and more are what we shall address in our next series of discussions.  The so-called "great emulation debate" will kick off with the emufans getting their say first, followed next by the vendors, and then I will close with a final editorial relating my insights into the present and future of "this strange realm" known as emulation.

REVIEW QUESTIONS

1.    How has the Internet made an impact on the emulation community?  In what ways is this impact good or bad?

2.    What are the "four basic food groups" of emulation?  What are the additional "side dishes" that may be offered?

3.    Why do many vendors seemingly choose not to object to the effect on their products by the emulation scene?  Does their reaction void their intellectual property rights?  Why or why not?

4.    How does the law deal with possible intellectual property infringement on the Internet?  Can you name and describe the legal test used to determine proper jurisdiction for prosecution of such cases?

5.    How can the legal status of a freeware emulator come into question?  Which of these factors is the most important insofar as the original system vendor is concerned?  Why?

6.    Is it possible to pirate an emulator?  Why or why not?

7.    Which court case serves as the basis for the legal contention that "ROMz sitez" are illegal?  Can you describe some of the five areas in which it has a direct impact on emulation-related activities within the Internet?

8.    As far as the Internet emulation community is concerned, what are the three different kinds of "ROM" and what is the legal status of each?

9.    What are the legal concerns with regards to the availability of emulation-related material other than emulators and "ROMs" on the Internet?

10.  Is it legal to provide links on an Internet emulation site?  What are the four ways in which such a link might turn out to be an infringing link?

11.  How does one deal with "fair use" of copyrighted material on the Internet?

12.  Can you describe the three specific exceptions for the "fair use" of trademarks on the Internet?

13.  Under the terms of the DMCA, what are the four areas in which an ISP can be held legally liable for intellectual property infringement?  Can you describe how an ISP can avoid such a charge with regards to at least one of these areas?

14.  What is the proper procedure for an ISP to follow in dealing with a possibly infringing Internet site that it hosts?

THOUGHTS TO PONDER

1.    Why was The Dump: Genesis shut down?  How can this example be applied to other kinds of emulation-themed Internet sites?

2.    Assuming that the author's theory about vendor indifference to emulation is incorrect, what are some other reasons certain vendors might not object to the emulation scene?

3.    How might an original vendor use the example of Sega v. MAPHIA, or other examples of law and case precedent, to build a reasonable claim of intellectual property infringement against different kinds of emulation-themed sites?

4.    With regards to the fair use Internet exceptions for trademarks, how could these exceptions be properly applied to an emulation site?

5.    Will software patent protection ever become a valid issue with regards to the Internet?  Why or why not?

6.    Is there such a thing as "fair use" of materials or processes protected by patent law?  Why or why not?

The EmuFAQ (c) 1999 Sam Pettus - section last revised 14 March 2000