Video games have been publicly available for about 50 years. Since then, gaming has grown into the most profitable entertainment business in the world. Because of the medium’s high popularity, millions of gaming fans want to archive and preserve games to keep their history alive. Both companies and passionate fans have made emulators to mimic the original hardware games are played on. They have also dumped singular video game files into archives to preserve them. However, both methods have been subject to copyright lawsuits under the Digital Millennium Copyright Act of 1998 or DMCA. There have been proponents for and against emulation and ROM websites. Many gamers believe that the United States government should update the DMCA to give more opportunities for game preservation. Game companies, on the other hand, hope that laws become stricter, so they have more control over their intellectual properties.
What is the DMCA and what does it have to do with video games
The DMCA was an act put in place to help further the growth of the digital marketplace and to give copyright owners opportunities to distribute their work to a wider demographic. It gave them legal protection from unauthorized access to their digital products. It also made it illegal for users to sell, distribute, or decrypt an encrypted copyrighted work through using a technological measure. These measures are known as trafficking and circumvention. Users are allowed to make personal copies for themselves if they don’t redistribute them, however. There are rights that are not affected by this law, such as the ability to reverse engineer a product and to use it in a non-profit library, archive, or educational institution. A DMCA exemption regarding video games is circumventing a game whose server has shut down to make it playable again. It also allows playable preservation of a discontinued game in a library or archive if it doesn’t give the preserver a commercial advantage or the ability to distribute the game outside of physical premises. Because the law is rather vague, there has been a lot of debate about the legality of emulators and game file distribution sites.
DMCA and emulators
One topic that has been the subject of a lot of controversy throughout the years is the legality of emulators. Emulation gives users the ability to use a software version of a hardware product on another device. Emulators started to be made around the mid-90s, but they were very limited. These emulators were usually very buggy and had game compatibility issues. However, this all changed when Connectix Virtual Game Station was in development. Connectix reversed engineered the PlayStation to emulate the system’s games using their discs on Macintosh and Windows systems. Because Sony, the owner of the PlayStation filed a copyright infringement lawsuit on them, the legality of emulation was at risk. The judge of the case originally sided with Sony. However, the methods Connectix used were deemed necessary to gain access to the unprotected functional elements within the PlayStation. They also didn’t plagiarize the code they used to make the emulator work. Because Connectix used reverse engineering, their emulation was ruled as fair use and Connectix won the Connectix v Sony legal battle. Because of this loss, Sony bought out Connectix in 2001 and discontinued it to eliminate competition. Sony also attempted to stop other emulation companies from selling their products like Bleem. Emulation is now used by Microsoft, Sony, and Nintendo, the major 3 console manufacturers, to sell games from their older consoles to their users. Many fan-made, open-source emulators like Dolphin for the GameCube and Wii, VBA for the Game Boy Advance, and PCSX2 for the PlayStation 2 are all used by gaming fans to preserve and even enhance games. All three major console manufacturers are still against these open-source emulators however, because it competes with their services, and they are skeptical of where their users get games for them. The way many of these people get games for these emulators is considered illegal, and in most cases understandably so.
DMCA and game files such as ROMs
There are legal and illegal ways to play games on emulators. Making copies of legally owned game files to play on emulators without distributing them to others is legal through the DMCA. However, hosting games (both online emulators and downloads) on a website is illegal. There are a lot of interesting preservation opportunities with these websites that will benefit gaming historians. Many games are unable to be sold now for multiple reasons, so having them accessible on these websites is great for people who want to experience them. They also don’t do any damage to companies because they won’t be able to make money off these games either way. Nintendo is the most aggressive opposition to these websites, and their intentions when taking them down are almost always malicious. There have been times where it was justified for them to take down certain ROM sites, such as RomUniverse.com. This website was making the owner, Matthew Storman, over $30,000 a year because he offered a subscription service to the site’s users. RomUniverse.com was also making money off games already on Nintendo’s Switch online service. Since there was an easily accessible, legal way to play these games, Nintendo rightfully took down the website. However, there are times they go too far, and show that their business practices go against what the DMCA was trying to promote. Taking down entire ROM sites instead of just ROMs offered by their subscription service is extremely harmful to game preservation. This is especially the case when the website holder isn’t trying to make money off these files. Many games, especially on older consoles are either difficult to access or don’t work anymore due to age. It is especially troubling that Nintendo takes down these ROM websites because they are infamously known for doing an abysmal job at offering rereleases of their old games. Nintendo has never sold certain GameCube games since the console was discontinued 15 years ago. Since then, physical copies of these games have gone up in price drastically in the resellers market. When they are sold, Nintendo doesn’t make any money off them. Many assume that Nintendo wants to wait to resell these games to get fans more excited when they are re-released. However, that goes against why the DMCA law was put in place: furthering the growth of the digital marketplace and to giving copyright owners opportunities to distribute their work to a wider demographic. Many of the games they are keeping from people are considered some of the greatest of all time, like Mario Kart: Double Dash, F-Zero GX, Paper Mario: The Thousand Year Door, and especially Super Smash Bros. Melee. Melee is particularly important because Nintendo attempts to cease and desist events surrounding this game all the time. For example, in 2020, during the COVID-19 pandemic, tons of fans wanted to hold a Melee tournament on a version of Dolphin called Slippi. Slippi lets players play emulated versions of Super Smash Bros. Melee online with others. Nintendo shut down a Slippi based tourney, even though emulation is legal, saying that people participating were most likely using illegal copies of a game they haven’t made money from in 15 years. They didn’t make money from it in 15 years because they never legally resold it. It is morally justifiable to put games Nintendo wouldn’t make money from either way on ROM sites because no harm is done to them. These anti-consumer moves should not be encouraged by the DMCA. These actions show that companies can still abuse DMCA guidelines and use it for the opposite reason it was put in place.
Conclusion
The DMCA is necessary to protect digital properties from being sold illegally and circumvented. In many cases, it does just that. However, companies like Nintendo have shown how outdated the DMCA can be in terms of game preservation and accessibility. In addition, their business strategy directly goes against what the DMCA was trying to encourage. Sites that give out games from Nintendo consoles that aren’t on Nintendo’s Switch Online service are positively impacting people who want to play them. Nintendo won’t make or lose money with these ROMs online, unless they decide to resell them. It would then be more than understandable why they would take them down. There are many parts of the DMCA that fairly rule in favor of preservation and accessibility, such as allowing users to make personal copies and the ruling on emulators. However, revisions should be put in place to encourage Nintendo and other game companies to sell the games they are not putting on their online services. Even then, archiving games on these online services is legal if they aren’t accessible to the public. These changes will make game preservation and accessibility a lot easier for gamers and the industry would be better off for it.
~Zachary Jensen
Caruso, Norman, director. From Shady to Legal: How 2 Emulators Battled Sony – Bleem! & VGS | Gaming Historian, YouTube, 24 Mar. 2017, http://www.youtube.com/watch?v=UGHul1PrXCE.
Copyright Law of the United States of America: And Related LAWS Contained in Title 17 of the United States Code, US Copyright Office, Library of Congress, 2000.
Doolan, Liam, and Damien McFerran. “‘Free Melee’ Becomes ‘Save Smash’ Following Nintendo’s Legal Action against Competitive Smash Bros. Event.” Nintendo Life, NLife Media, 24 Nov. 2020, http://www.nintendolife.com/news/2020/11/free_melee_becomes_save_smash_following_nintendos_legal_action_against_competitive_smash_bros_event.
Orland, Kyle. “ROM Site Owner Made $30,000 A Year-Now Owes NINTENDO $2.1M.” Ars Technica, WIRED, 1 June 2021, arstechnica.com/gaming/2021/06/former-rom-site-owner-must-pay-2-1-million-to-nintendo/.
Trendacosta, Katharine, et al. “Unintended Consequences: Fifteen Years under the DMCA.” Electronic Frontier Foundation, Electronic Frontier Foundation, 13 June 2017, http://www.eff.org/pages/unintended-consequences-fifteen-years-under-dmca.
RIT Cyber Security Policy and Law Class Blog 