OverClocked #20, "And the winners are ...." © 1999 David Lloyd

Our experience shows that many computer hacker suspects are no longer misguided teenagers mischievously playing games with their computers in their bedrooms.  Some are now high tech computer operators using computers to engage in unlawful conduct.  The losses to the American public in this case are expected to be significant.  The Secret Service takes computer crime very seriously, and we will continue to investigate aggressively those crimes which threaten our nation's businesses and government services.

Gary Jenkins, U.S. Secret Service - Assistant Director, Operation Sun Devil

NEXTGEN ELIMINATION

     On 25 March 1999, Sony Corporation filed a intellectual property infringement lawsuit under the terms of the Online Service Providers Liability Limitation Act (17 USC 512) against Action World, Inc., a well-known Internet service provider (ISP).  ActionWorld was the parent company of UGO Networks, Inc. (formerly United Gamers Online), which is an Internet gaming community comprised of some 100 or so Web sites dedicated to computer gaming in just about every form conceivable.  Unfortunately for ActionWorld, one of UGO's affiliates at that time was a site known as Dave's Video Game Classics - a place devoted to illegal activitiy in the form of videogame emulation.  Dave's had willfully uploaded to its site and provided a working link to an illegally dumped copy of the Sony PlayStation BIOS, which was required in order to make the infringing PlayStation emulator PSEmu Pro work properly.
     It is a well established fact that unauthorized, infringing copies of a computer system BIOS is a direct violation of copyright law, and that linking to infringing material is also a direct violation of copyright law.  Sony had no choice but to take action in order to protect its intellectual property.  Dave's, one of the oldest and most "revered" emulation sites on the web, was subseqently shut down as the law dictated until the matter could be resolved.  The end result was that Sony and Acton World eventually settled the matter, and UGO Networks expelled Dave's from its system to prevent further such incidents.  Nevertheless, the offending site reappeared a few weeks later, except that this time it was hosted by a new and "more understanding" ISP.  Curiously enough, the new incarnation of Dave's did not contain neither an illegally dumped PlayStation BIOS nor links to one anywhere on the Internet.  The software pirates in the emulation community had been taught a lesson, and Sony's intellectual property rights were reaffirmed.

     The rise of the so-called "emuscene" has its parallels in the rapid growth of software piracy in all forms and on a worldwide basis over the past two decades.  With the rise of the Internet and the capabilities that it offers, the concept of intellectual property protections for original works is being abused and degraded on a scale that would have been unimaginable.  Both hardware and software vendors alike are forced to commit considerable time and resources battling this new breed of pirates, who are quite adept at their trade and quick to seize upon any technology that will further their illegal aims.  One of these technologies is computer system emulation, which has advanced in the past decade to such a degree that it is now possible to easily exploit a vendor's efforts without proper compensation almost at whim.  It is all too easy nowdays to violate a vendor's rights over popular products, and many a software pirate is doing just that.
     "Now wait just a minute!" the so-called "emuscene" protests.  "Who are you to come off with that kind of attitude?"
     We are the vendors.  We are the ones that made the computer industry possible in the first place.  We are the ones who bear the cost of continuing development, of researching new technologies, and the many other minutae that are involved in bringing a successful product to market.  We are the ones who suffer the most from those not willing to pay a just and equitable price for the fruit of our labors.  You who complain the most would not be able to enjoy your favorite systems and releases without our efforts, not yours.  We do not cater to those who would unlawfully profit from the sweat of our brows by taking an otherwise legal technology and exploiting it for illegal gain.
     We are not here to debate the legality of emulation itself.  What we are here to debate are the illegal purposes for which emulation is currently being used.  The way we shall do this is to take the arguments that the emufans use to promote their unlawful behavor and expose them point-by-point in the harsh spotlight of the law for the support of unbridled piracy that they are.  Some of our fellow vendors have been accused of of making broadly worded statements, of issuing generalized proclamations, and of making assertions that are not based in fact.  You shall now learn the basis for our contentions and how the facts and the law both prove that emulation, as it is now practiced by the so-called "emuscene," is nothing more than open support for that illegal activity which is commonly known as software piracy.

MARKET PENETRATION

Emulation is a major threat to vendor profits.

     The danger that emulation poses to the vendor is quite real.  British emucode Gordon Hollingworth admitted as much to the readers of Salon.

The emu development process is getting quicker....  It won't be long before a company releases a piece of hardware, and an emulator [for it comes out] two months later.  Emulation could advance to such a point where people would ask, 'Why develop [new hardware] when we can emulate the process quicker in Windows, MacOS, [and so on]?

     It is a fact that emulation is now inexorably linked to the growth of software piracy due to the well-documented rise of illegal "ROMs" and their widespread availability on so-called "ROM sitez."  Such actvities can put a significant dent into vendor profits.  Nintendo, long the victim of "ROM piracy," has this to say on the subject.

As is the case with any business or industry, when its products become available for free, [then] the revenue stream supporting that industry is threatened.  [Emulation has] the potential to significantly damage a worldwide entertainment industry which generates over US$15 billion annually, [not to mention] tens of thousands of jobs.

This attitude is echoed by market analyst Nanako Sakaguchi of Dresdner Kleinwort Benson Asia.

If Sony lets [emulation] go unchallenged, [then] consumers may end up buying video games the way that they buy music CDs - without regard to the hardware.

     Advocates of "free software" are often fond of pointing out that vendors make tremendous profits from their products, thus significantly reducing the impact that any illegal activites might make.  The truth is a different tale altogether.  The Interactive Digital Software Association (IDSA) estimates that sales of counterfeit videogames came to at least US$3.2 billion during 1998, which is quite a hefty figure by any yardstick.  Compare this with an estimated US$16 billion in legitimate worldwide videogame sales, and it amounts to a 20% dent in total vendor profits.  In plain English, software piracy is taking away at least one-fifth of vendor profits, which is a far cry above the supposedly negligible amount that supporters of "free software" claim.  Pat Becker, director of corporate communications for videogame vendor Electronic Arts, makes the following observations regarding the impact that piracy has had on that company.

We figure that we lost approximately US$400 million last year [alone].  Publishers with hot titles tend to be the ones that get targeted.  Bad games don't get copied much in the marketplace.

Also consider the words of Nintendo general counsel Rick Flamm.

Our definition of 'piracy' consists of counterfeit software - something that purports to be an authentic cartridge but is not.  There is a lot of counterfeit GameBoy software, and there is a little bit of counterfeit N64 software.  We estimate that Nintendo lost approximately US$725 million to piracy in 1998, and that [figure] does not include Internet piracy.

Nintendo also estimated that they had lost an estimated US$866 million in 1997.  Nintendo's legal offensive is not just limited to American shores, either.  In October 1998, they sucessfully put a halt to a massive videogame counterfeiting operation based in Taiwan, whose operations spread from mainland China to Paraguay.  Clearly, Nintendo's legal strategy is working in Nintendo's favor, but there is a long way to go before the scourge of software piracy is eliminated.
     Another weak argument raised in defense of emulation is that it lets a user see a videogame for a particular platform before they decide on its purchase.  The old "try-before-you-buy" argument is valid for demos that are relased by the vendor, but not for illegally pirated full-version programs irrespective of the platform involved.  This argument was laid to rest long ago for the reason that Peter Baruk of the Software Publishers Association (SPA, now the SIIA) mentioned when questioned by TechWeb on the subject.  It is a common-sense argument that anybody of minimal intelligence should understand.

Why would [prospective users] buy it when they've already got it?  There are people who do [eventually buy pirated software], but I think there's a greater number of people who [just say], "Screw it, I got it."

     It is perhaps best to let the IDSA have the final word on this particular topic, as they boil the matter down to its basics in their online FAQ.

Software publishers must generate a meaningful return on their investments in this intellectual property if they are to continue to meet the demand for technologically advanced products.  The suggestion that some piracy is benign undermines respect for the intellectual property rights on which companies are built.  Piracy of any kind on any scale erodes this foundation.

Emuation violates a vendor's intended market for its products.

     The software pirates who make up the so-called "emuscene" like to brag that emulation makes it possible for them to use any piece of software for any system and from any market whenever they feel like it.  Howard Wen, writing for Salon magazine, puts it this way

Emu programming is seriously blurring the lines between the proprietary formats that have always balkanized elecronic gaming.

While we disagree with his quaint emotionalism about "balkanizing," nevertheless the point he makes is sound enough regardless of whether or not you are pirating videogames or applications software.  Software piracy in the form of emulation is breaking down the established market barriers that allow vendors to customize their products for different audiences.  It is a fact based on long experience by the vendor community that not all markets are alike, hence the need for such barriers in order to ensure that the optimum product gets to the most receptive user base.
     Let us take a moment to hear the words of Beth Llewelyn, speaking on behalf of Nintendo against piracy of Nintendo videogames.

Emulators [such as UltraHLE] are illegal  They obviously had to circumvent our security chip.  [Emulation] promotes continued piracy.

The vendor community acknowledges that there exists a diverse market for computer products.  What may sell in one country may not in another.  What may be popular in one part of the world may be highly offensive in another.  What may be permissible in one region may not be in another.  Market locks are a way to enforce these barriers in order to ensure that the right product goes to the right market.  Vendors are not about to remove them for the one or two software pirates living in their mother's basement who want "the full uncensored version" of their favorite videogame.  Conversely, the software pirates do not and never had a right to remove these protections in the first place, and this fact is now law.  The Digital Millenium Copyright Act (17 USC 1201) makes it a crime to violate the security systems of any product.  Since market code enabling is part of the security measures place on certain computer programs and videogames in particular, then bypassing the market locks is in fact a crime.
     It is already a matter of public record that so-called "cracked" versions of both infringing PlayStation emulators, Video Game Station and bleem!, are now available and can be located by those with the diligience to find them.  The hackers involved have overcome the rather limited precautions built into these products by their respective companies, permitting pirated PlayStation discs to be use irregardless of market origin. PSEmu Pro, the illegal PlayStation emulator, could do this from the beginning.  Bypassing marketing codes is a common illegal feature of other such infringing emulators regardless of the platform emulated.  The authors of these programs seem to care not one whit that the original vendors of both the hardware and software involved may not have wanted a particular product released in a particular market.  If it's available, they want it, and they want to make it "freely available" to others that follow in their illicit wake.

Emulation promotes software piracy.

     "Piracy in all of its forms represents the biggest threat to the continued growth of this industry," according to IDSA president Douglas Lowenstein.  It is a fact that emulation, despite its legal roots, has fast become one of the most favorite tools of software pirates.  While it may not be illegal to write an emulator, it is illegal to use it to perform an illegal act.  Software piracy in all forms is illegal, so if an emulator is used to run a pirated piece of software, then that makes emulation illegal.
     We concede that emulation technology is both legal and permissible under current intellectual property laws.  It is our contention, however, supported by the facts, that emulation is being used for an illegal purpose - namely software piracy.  A real-world comparison would be the police radar detector.  It is not illegal to own a radar detector; however, it is illegal in many places to use one in order to commit the misdemeanor crime of speeding.  If you use the radar detector that you own in one of these places, then you are committing a crime.  So it is with emulation.  While it may be legal to code an emulator for a given vendor's proprietary system, and while it may be possible to do so in a fashion that does not void that vendor's intellectual property rights, it is clearly illegal to run pirated copies of that system's programs on that emulator regardless of how they are procured or in what format they may reside.  The IDSA makes its position on the subject quite clear in regard to videogame emulators; and we take the liberty of adding the appropriate legal reference to their statement.

While some emulators are made by hobbyist programmers, that does not mean that they are legal.  If the sole purpose of an emulator is to allow the playing of a console game on a PC, and the owner of the copyrights in that console game has not authorized the copying, performance, display, or derivative work created when a console game is played on a PC [17 USC 106, 106A], then the creation and use of that emulator constitutes an infringement of the copyrights in that console game.

     Perhaps the favorite target of pirates, emulation or otherwise, is the Nintendo Corporation, the world-famous videogame company.  Their position on emulation is crystal-clear, made with all the subtlety of a sledgehammer, and was voiced earlier by company spokesperson Beth Llewelyn.

Emulators [such as UltraHLE] are illegal ....  [Emulation] promotes continued piracy.

     Even some of the emulator authors themselves concede this point.  Marat Fayzullin, a computer science graduate student at the University of Maryland in College Park, is something of a god to the so-called "emuscene."  Author of the popular Virtual GameBoy and MasterGear videogame emulators, he nonetheless remains rather critical of it.

I am not a "scene" person and would very much dislike to be [regarded] as one.  I have been here [long] before these pirates and do not want to have anything to do with them.

It is clear that Fayzullin, who has been on the so-called "emuscene" longer that almost anybody there, understands the stakes of the emulation game.  Another perspective on the matter is given by one "Dethblade," writing for PSX Underground.

Emulation is piracy, and it's only the IDSA's job to combat it

     Lest you forget the point that we have made, we shall reiterate the cold facts once again.  Emulation as a practice is technically legal within strict bounds laid out by both statutory and case law.  Software piracy as a practice is illegal.  An unauthorized emulator that does not violate our intellectual property rights is perfectly legal, but running pirated copies of our software on that emulator is in fact illegal.  Emulation provides indirect support for illegal activities; therefore, emulation promotes software piracy.

Emulation always infringes upon a vendor's intellectual property rights.

     If emulation promotes software piracy, then it must by definition infringe the intellectual property rights of the various vendors behind the original system and its programs.  The IDSA makes it clear in its online FAQ.

In fact, most emulators that are freely available today are merely software [based] emulators that have no role in the creation of properly licensed video games; these emulators have the exclusive purpose of infringing copyrights and are [therefore] illegal.

Nintendo echoes this sentiment in their own intellectual property rights statement when it contends that "...the only purpose of video game emulators are to play illegal[ly] copied games from the Internet."  They are well-known for going after any Internet site that supports such illegal activity, whether it be the distribution of an illegal emulator for a Nintendo console or the prosecution of Internet sits that make illegal copies of Nintendo "ROMs" available to the public.  Nintendo chairman Howard Lincoln made the following public statement regarding the Taiwanese counterfeit software bust of 1997, but it applies equally well to Nintendo's attitude regarding emulation.

This is just the latest example of Nintendo's resolve to do everything within our power to stamp out illegal distribution of our intellectual property....  The collective threat of copyright thievery is far greater than any competetive challenge within the software industry.

     The vendors are not alone in their worries.  There are many among the programming community who are also concerned over the unbridled software piracy that emulation is causing.  Ed Logg, legendary Atari videogame programmer, who either authored or contributed to many of that company's classic titles, has this to say on the subject.

If someone copied a CD or downloaded a game [ROM] off the Internet, then I have a problem with it....  Since manufacturers sell the game [for use on] one platform, it may not be 'right' to run that version on another platform.  Manufacturers often get the rights to, say, sell a PSX version, but another company may have the rights for the Mac or PC version.  I can see why [emulation] would be a problem.

     Edge magazine states the ugly truth about emulation and its rampant spread on the Internet in a recent article.

"[Illegal] websites are easily located and closed by industry bodies such as the IDSA and ELSPA, but for every homepage erased another replaces it.  The existence of N64 'backup' units such as the Z64 and Doctor V64, used by many for piracy, means that virtually every game released is posted on the Internet literally hours after its release.  One source [of ours] even went so far as to claim that over three terabytes (3 million MB) of [illegal] N64 ROM images changed hands on Sunday, January 31 [right after UltraHLE's release].  This figure may well be exaggerated, but the fact remains:  Nintendo is unfairly losing out.

Many vendors are understandably concerned by the rampant pirating of their products.  Nintendo makes this clear in their intellectual property policy statement.

All ROMs published for play on Nintendo hardware and available on the Internet are unauthorized and infringing copies of copyrighted works.

     Vendors do not like to spend valuable company time and resources battling software piracy in all its various forms, including emulation, but they have no choice in the matter.  Failure to file immediate protests eventually results in the loss of that right per federal law, so vendors are forced by law to devote precious resources to the fight - resources that could better be used elsewhere.  Nintendo legal counsel Rick Framm agrees.

When[ever] we launch a new system, we have to relaunch our counteroffensive against copier devices and computer software.

     It should also be noted that Nintendo and other like-minded vendors hold that emulators in themselves are counterfeit products.  Nintendo makes it clear in their official company policy statement regarding intellectual property protection of their products.

A counterfeit Nintendo product is [defined as] an illegal copy of an authentic Nintendo product.

Their reasoning can be explained in one of two different ways.  A counterfeit is anything that purports to be something that it is not.  An unauthorized program that claims to be a Nintendo videogame console emulator can be considered an unauthorized working duplicate of that console, which would make it a counterfeit product in Nintendo's eyes.  Another way to explain their reasoning is to examine 18 USC 1030, the Federal Computer Fraud and Abuse Act.  This makes it illegal to produce a counterfeit copy of a computer program.  Videogame systems contain many programs embedded within the firmware of their ROMs in order for them to function properly.  Duplicating these programs and then claiming that they work just like proprietary vendor code is not only copyright violation, it also fits the dictionary definition of counterfeiting and would therefore be in violation of 18 USC 1030.  Whichever approach you take, emulating a Nintendo videogame console invites one or more charges of counterfeiting by Nintendo.  It is a novel approach in the fight against software piracy, but one that other videogame vendors are now seriously considering.
     Perhaps it is best to let the so-called "emuscene" have the final say in this regard, speaking in the voice of PSX Underground's "Dethblade."

Emulation is as illegal as most things are illegal, yet [it is] still being done.

No wonder that the vendors must continue their campaign against this and all other forms of software piracy support.

Emulation does not credit the original authors or vendors for their work.

     It doesn't matter how old your product may be - programmers are still proud of their work.  Rob Fulop, 1983's Game Designer of the Year, made the following observation to a friend shortly after the recent World of Atari convention in Las Vegas, which celebrated the heyday of the original Atari 2600 video console.

"I don't think most people understand why walking down those aisles made me sad.  I was seeing the boulevard of broken dreams.  [The people in the dealers' room] are looking for bargains, while I'm seeing a game that a friend of mine spent two years programming."

While Fulop was speaking abou the uneven pricing structure for the resale of original carts (good games going cheap while bad, rare games fetch high prices), the sentiment is often the same with regards to the so-called "emuscene."  Actual Entertainment's Franz Lanzinger, who himself programmed many of the classic games that are being pirated by the so-called "emuscene," has this to say on the subject of proper recognition.

It is an outrage when emulated versions of games are released with credit given to the people who wrote the emulator, but no credit - or merely a special thanks credit - [is given] to the original game designers.

     The so-called "emuscene" is for the most part populated by immature people who are completely ammoral with regards to the intellectual property of others.  They consider themselves "electronic artists" who have the freedom to do what they want, go where they will, take what they need, and don't give a second thought about from where it comes or to whom it might actually belong.  If it is usuable, they use it and claim credit for themselves.  If not, they discard it and seek for something else.  They are so debased as to quarrel with or even steal from each other, proving just how much of a threat they are to honest programming.  The only positive side to this is that the true talents are usally driven out of these questionable activites and into something else better resembling honest work.   Consider the words of our friend "Wook" from one of his EmuCamp editorials.

PSEmu version 2 [an illegal Playstation emulator] got killed because of people who posted the leaked beta publically....  Kiddies and idiots who've mail-bombed and ragged several authors about various games have caused a few authors to throw up the surrender flag and proclaim the effort isn't worth the cost ... [and] there are [emulation] websites that make a habit out of stealing others' words and claiming them as their own work.

     Even the so-called "emuscene" itself seems to suffer from an identity crisis.  Any claim to reputability among its denizens is marred by the frequent "hacks," "rips," and other such infringing nonsense.  For example, the author of the illegal Super Nintendo emulator VSMC, one Chris George, wound up withdrawing support for his infringing program after a team of his fellow hackers "broke" the internal protections of the public distribution release, thus rendering it fully useable.  The NeoRage hackers suffered from this, as did the vendors of such infringing products as A-Max and bleem!.  These hackers did not care one whit who made the product or why, even though they were from among their own ilk.  All they wanted were "the warez," and they put their own names on the "cracks" that they released to the public.  It seems the old adage is true that thieves will often steal from their fellow thieves whenever the mood strikes them.

Emulation violates a vendor's intended usage for its products

     Nintendo's policy statement regarding the intended usage of their own videogame consoles is quite clear on the subject of emulation.

[An emulator] infringes Nintendo intellectual property rights, including copyrights, and circumvents Nintendo's anti-piracy security system[s].

One might wonder how Nintendo arrived at such a statement, but the answer is obvious to anyone who consults the law.  There are multiple ways to violate the various forms of intellectual property law, whether they be the patents that Nintendo has on certain proprietary devices contained within its products (the Patent Act, 35 USC), the copyrights on any programs either burned into the firmware of those devices or stored within the various formats of its proprietary delivery systems (the Copyright Act, 17 USC), the trademarks that they incorporate into their products (the Landham Act, 15 USC 1051-1127), or in a broader sense with regards to the more general forms of intellectual property violation (the Intellectual Property Rights Act, 37 CFR).
     So does the intent of usage stop with the emulator?  No, it applies to the program base as well.  Torter Miltenberger scores an excellent point in this regard in his RPGamer editorial "The Devil's Advocate."

Most [Playstation] emulators can't tell the difference between an original copy and a CD-R "backup."  [Suppose somebody] obtains a CD burner and starts selling 'backups' of games for US$10 apiece.  This would be damaging to video game corporations and if it continues on a great enough scale, [then] it will drive up the price of legitmate video games.

This ties in neatly with the marketing model presented several discussions ago, in which vendors are forced to artificially inflate the price of first-release titles in order to counter the perceived threat of software piracy.  It is a fact that the bleem! Playstation emulator for IBM PC compatables works just as Miltenberger describes - it does not care one whit whether or not you are using a legitimate Playstation disc or a CD-R copy, as its emulation did not include any functions from Sony's antipiracy system.  It is a fact that a real Playstation will not do this without performing an illegal hardware hack to install a special "mod chip" which can be easily purchased off of the Internet black market, or by obtaining an unauthorized "mod card" for its I/O port that essentially does the same thing.  Sony never intended for pirated copies of Playstation games to work on its consoles, but this can be done on an emulator with no trouble.  As a result, any emulator that can do this is performing an act of contributory copyright infringement and is therefore illegal.  It is more proof that emulation as it is practiced today is definitely illegal.
     What is true for systems utilizing recordable storage media for program delivery (floppy discs, CD-ROM, DVD-ROM, etc.) also holds true for systems utilizing permanent storage media (videogame cartridges, plug-in boards, "flash" cards, user-insertable ROMs, etc.).  The altering of a copyrighted work's intended format or its transfer into another format is part of the ultimate right of adaptation which by law is exclusive to the copyright owner (17 USC 106; Mirage Editions v. Alberquerque ART, 1989).  Again, we quote Nintendo on the matter, but we take the liberty of inserting the legal references that their printed statement omits.

     There is a good deal of misinformation on the Internet regarding the backup/archival copy exception [of copyright law, 17 USC 117].  It is not a "second copy" rule and is often mistakenly sited for the proposition that if you have one lawful copy of a copyrighted work, [then] you are entitled to have a second copy even if that second copy is an infringing copy.  That is utterly ridiculous and legally unsupported [MAI v. Peak, 1993; Allen-Myland v. IBM, 1994; ProCD v. Ziedenberg, 1996].  Therefore, whether you have the authentic game or not, or whether [or not] you have possession of the ROM for a limited amount of time (24 hours [is commonly cited by the so-called "emuscene"]), it is illegal and infringing of a copyright to download and play a ROM from the Internet.
     The backup/archival copy exception [of copyright law] is a very narrow limitation ....  It is well established by judicial decisions in the United States that this limited exception does not apply to game data contained in ROM ... [Tandy v. Personal Micro Computers, 1981; Apple v. Franklin, 1983; Atari v. JS&A Group, 1983; Sega v. MAPHIA, 1994].

It doesn't matter how or from where you got your "ROMs" for your emulator.  They were intended to be used in a predefined way and in a predefined manner by their vendor.  Anything outside of that constitutes intellectual property infringement.
     One other point.  The so-called "emuscene" is making a lot of noise about computer programs (videogames in particular) not requiring the anti-piracy measures that were originally included with them in order to work with their emulator.  That is beside the point.  Any tampering with a computer security system, including its removal from the computer program(s) it is protecting, is a direct violation of federal law (17 USC 1201).  It is just as illegal to distribute and download a so-called "cracked ROM" as it is for one that still has its anti-piracy measures intact.  This is just another example of the verbal contortions that these software pirates employ in a vain effort to justify their actions.

Emulation limits users by limiting the operations one could perform with newer, enhanced, and often superior versions of a given program.

     Advocates of emulation often like to brag about how they are "preserving the past," or how they are "saving users from new and buggy products."  This is simply not true.  New release of old products offer many advantages over old ones in almost every category.  The common fallacy that every new update of a current or older product is bug-laden to the point of unreliability is a devious lie used in a pathetic attempt to justify the continued spread of software piracy.  It is just as illegal to pirate Windows 1.0 as it is to pirate Windows98.  It is just as illegal to pirate the original Donkey Kong arcade game as it is to pirate Diddy Kong Racing for the N64.  Piracy is piracy, regardless of the version of the program(s) involved.

Emulation distorts the product experience.

     It is a fact that an emulator, however well it may be designed, always falls short of the actual product in some respect.  This is the very nature of the beast involved, as software can never be a perfect substitute for hardware.  This is especially true if the product was designed to perfrom with certain hardware and in a certain fashion, as are almost all videogames.  This concept is what is known as the "product experience," and Franz Lanzinger provides an original programmer's perspective on the matter.

[Videogame emulators] are seriously flawed to the point where the game experience is quite different from the original.

For example, anyone who is a fan of classic arcade games will remember the first TRON arcade game.  The infringing arcade emulator M.A.M.E. supports TRON via illegal "ROMs," but it cannot properly mimic the special controls of the original console, thus resulting in a distorted product experience.  For another example, Sony rejected bleem! in the first place because it was (and still is) a sub-standard product that fails to accurately convey the entirety of the PlayStation product expierince with each and every title in the PSX library.  There are many more examples we could cite, but these two should be sufficient to convey the fact that emulation is never as good as the original hardware.

Emulation violates the experience we intend to permit within a given market or within a given product line.

     In an earlier discussion, the problem of cross-market violation of a given vendor's product intentions was briefly addressed.  This problem not only affects the intended market, but it also affects the intended product experience for that market as well.  It is a fact that different markets have different tastes, as well as different desires and expectations for the products that it prefers.  What may be permissible in one culture may be an abomination in another.  What may be desired by one market may be deemed frivolous in another.  We do not see the necessity to neither port certain titles nor refrain from editing certain titles for a given market.  The answer is both simple and obvious - ignoring the united desire of an entire market for the strident demands of an intransigent few would ultimately prove detrimental to our corporate image and put at risk other titles more worthy of the market in question.  Emulation destroys our ability to maintain this control; therefore, emulation violates our ability to control the product experiences that we feel are best suited for a give market
     There are places in the world today, such as Malaysia, many former Soviet bloc states, and mainland China, where software piracy is given a wink and a nod.  Drop by any store vending computer software and you will find bootleg upon bootleg, frequently with counterfeit packing, and more often than not pirated from another market to vend in the local one.  The same is especially true of the Internet, where the most blatant acts of software piracy are carried out by offenders whose sites are hosted by ISPs located within these so-called "safe" countries.  We lose millions and perhaps billons of dollars in lost revenue each year to software piracy in all forms, and part of these lost profits could have been used to both port and tailor additional products for our various markets.  The ready availability of pirated copies of our programs forever distorts the product experience that we intended for any given market, and it does not matter whether or not the bootleg in question is a "full version" from another market or a third-rate hack job by local pirates utilizing illegally "ripped" material from a different port.  Piracy is piracy, plain and simple, and dealing in unauthorized copies of our products that were never released in your market is and always will be piracy no matter what you may claim in your defense.

Emulation effectively discourages us from re-releasing classic products.

     The existence of pirated ROMs makes vendors think twice about re-releasing classic games.  Torter Miltenberger, in his editorial "The Devil's Advocate" for RPGamer, makes the point from the perspective of the average classic gamer.

There is always the possibility (however slight) that the game may be re-released.  A perfect example of this is Final Fantasy V.  If emulation were non-existent, then the upcoming re-release of Final Fantasy V [for the Sony Playstation] would sell better.  instead, people will look at it and say, "I already beat the ROM."  If that doesn't harm SquareSoft then I don't know what does."

We quote Nintendo to provide the perspective of the vendor community.

Distribution of an emulator trades off of Nintendo's good will and the millions of dollars invested in research & development and marketing by Nintendo and its licenses.  Substantial damages are caused to Nintendo and its licenses.  It is irrelevant whether or not someone profits from the distribution of an emulator.  The emulator promotes the play of illegal ROMs, not authentic games.  It has the opposite effect and purpose....  If these vintage titles are available far and wide, [then] it undermines the value of this intellectual property and adversely affects the right owner.

In other words, continued activity by software pirates concerning Nintendo products is what keeps that particular vendor from re-releasing its classic titles or porting them to other platforms.  What is the point of their doing so when illegally pirated copies are available far and wide?  They stand to lose money on such a venture, and that thought has kept many a vendor from re-releasing their older yet still popular products.

Emulation corrupts the present.

     So what is the big problem with emulation?  It is a matter of principle.  The availability of emulation effectively stymies vendor support for the user base of its past, present, and future products.   Kazuo Hirai, president of Sony Corporation (makers of the PlayStation), puts it this way.

I don't think I would want to be ... in a position where I am profiting from sales of software to run on somtheing that is based on copyrights and intellectual properties that are, by the way, being stepped all over!  I would say, "Okay, we don't need that extra unit sale," if it means I get to protect my copyrights.

That is the opinion of Sony, one of the major players in the videogame market, as viewed from the financial and intellectual property angles.  Nintendo, another major player, provides a slightly different slant along the marketing angle in its public policy statment.

Emulator/ROM piracy is competing head-on with Nintendo's current systems and software.

To that we add the words of SquareSoft's Akira Kaneko, spokesman for the well-known software house and makers of the popular Final Fantasy series of RPGs for both Nintendo and Sony platforms.

Fundamentally, our stance is the same as Sony's.  If companies like us aren't able to sell as many games (because of a proliferation of pirating), it'll be that much harder to develop future titles.  The software industry may actually shrink.

Jeff Gerstmann of VideoGames.com agrees.

... like it or not, all of these ROMs are copyrighted, and spreading them around is simply piracy....  There's also a bit of a moral issue with the dumping and distributing of ROMs. You could argue that all those Atari 2600 ROMs being out there don't hurt anybody (though I'm sure Activision would disagree, since they released that Atari 2600 pack for the PlayStation), but let's face it. Games like King of Fighters 99 and well, any N64 game just shouldn't be out there for the taking.

Finally we quote the so-called "emuscene" itself, which openly admits its involvement in software piracy.  Again, the words of "Wook" from EmuCamp.

"We stand together or we fall alone.  If you won't take the time to get involved with emulation beyond downloading roms [sic], then your [sic] not part of emulation.  You're a user, a taker, a pirate, and unwelcomed....  If you don't like what emulation has become then leave or contribute.  There are no other options.  Whining accomplishes nothing....   If a site-op is getting harrassed by the IDSA, try to support them rather than thinking 'with XYZ out of the way more people will visit my site.'  We're all in this together.  If you make a path of standing alone, you will be alone when you need help.  Be a giver, not a taker."

One of his fellow hackers, the mysterious "ManBeast," had this to say on the subject.

"It just [so] happened that N64 emulation has sparked a huge interest in the piracy factor of emulation (which exists anyway).  [Posting the] Mario Bros. arcade ROM is just as much a crime as [posting] a Super Mario 64 N64 ROM no matter how you justify the latter.  So [why don't] those [of you] criticizing N64 ROMs go look at your hard drives and CDs and tell me that you are doing something less legal with those Atari 2600 and classic arcade ROMs, or those C64 and Amiga games.  We are all guilty.  Get over it - emulation has an illegal aspect to it no matter how you justify it to yourself(the emphasis is ours)."

"Dethblade," one of the writers for PSX Underworld, puts the matter rather bluntly.

Emulation is really nothing more than software piracy (emphasis added).

Truer words could not have been spoken.
     It is a fact that millions of dollars are lost to the vendor community each year as a direct result of software piracy.  When you corrupt an otherwise legal and viable technology to further this illegal activity, then the effect of those losses are further magnified.  There is no conceivable reason for the average user to want or need an emulator for a dedeicated videogame system, be that arcade or home console, if there is not present an intent to bypass the use of the original console.  Additionally, if the security features of the original console are bypassed, this enables the use of pirated copies of its program base that would not otherwise work on the actual hardware.  There is clearly no need for videogame emulation other than to enable piracy.  It is a corrupted technology that is thwarting the present desires of the vendor community.

     On 8 September 1999, the infamous computer hacker known as RealityMan publically announced that he would continue work on his infringing N64 emulator, UltraHLE.  This is a slap in the face of a vendor that has given so much to the videogame community, and we support any action that Nintendo takes in this regard. UltraHLE was an infringing emulator when it first appeared this past January, and it remains so to this day.  Products such as his do nothing more than promote software piracy.  The theory behind it may be lawful, but the acts that it enables are certainly unlawful.
     There is a word used in legal circles to describe the commission of an unlawful act that in other circumstances would be considered lawful and proper.  That word is malfesance.  Such could aptly describe the situation that emulation poses to the vendor community today.  We do not have a problem with the concept of emulation.  We use the technology ourselves on occasion whenever it stands to profit us.  We do have a problem with the unbridled use of emulation by software pirates to perform acts that are clearly illegal.  So what should be done about these illegal activities?  The so-called "emuscene" gives its own telling answer, and again we quote "Wook" of EmuCamp.

Think of this this way.  If you were throwing a party for all [of] your friends at your house, would it be OK with your neighbors if you just walked into their house, without asking your neighbors, and raided the neighbor's refrigerator for all the food your party needed?"

REVIEW QUESTIONS

1.   Why was Dave's Video Game Classics shut down by its ISP?  How was the situation resolved?

2.   Does emulation pose a significant threat to vendor profits?  How so?

3.   How does the vendor community feel about tboth the concept and the practice of emulation?

4.   Explain how programming an emulator may be legal, whereas using one may not be legal.

5.   What is the real reason for videogame emulation [according to the vendor community - ed.]?

6.   Why will a vendor object whenever it deems that its intellectual property is being violated?  What is the driving reason behind such swift action?

7.   Can you explain one of two ways in which an emulator or a "ROM" could be considered counterfeit?

8.   What is the standard practice used by software pirates with regards to assigning credit for their "releases?"  Is this limited to just commercially vended products?  Why or why not?

9.   Why do software pirates prefer infringing emulators over non-infringing ones?  Can you describe some infringing emulators?

10. Why are "ROMs" illegal regardless of their format?

11. Why is it illegal for an emulator to bypass the security measures built into computer systems and videogame consoles?

12. How can an infringing emulator violate a given vendor's market intentions?

13. How does emulation discourage the reissue of older or "classic" products?

14. What does the legal concept of malfeasance have to do with the so-called "emuscene?"

THOUGHTS TO PONDER

1.   How has the Digital Millenium Copyright Act limited the possible infringements that unlawful emulation could pose to the vendor community?

2.   What are the legal bounds restricting emulation technology as they exist today?

3.   How can current law be changed to better protect vendor rights?  For that matter, how could the be changed to better promote the cause of "free software?"

4.   How does the anarchistic behavior of the so-called "emuscene" influence its impression on outside observers?  Will this behavior ever change?  Why or why not?

[... and now the editor inserts some questions of his own ...]

5.   Do you think that the vendors are responding rationally to emulation?  Why or why not?

6.   Is it possible to separate emulation from charges of software piracy?  How?

7.   What is the real truth behind any counterfeiting charge by an offended vendor?