Legal question about online game console emulation

[Frylock]

I have discovered there are websites which allow users to play old console games using java-coded emulators. They were told to cease in 2008–at which point they got rid of all the games which they don’t have physical cartridges for.

Apparently, this satisfied the people who told them to stop–as the site continues to operate.

They claim they are legal because they are simply acting as a lending library.

I’m dubious, because they’re lending use of the software to more than one person at a time, which you can’t do with a physical cartridge.

Yet, it’s true that they were challenged, did actually do something in response (getting rid of games they have no cartridge for) and were subsequently not challenged further, which would seem to suggest they have at least one legal leg to stand on.

Anything you can say to apprise me of relevant facts here?

[Blakeyrat]

Zediva tried that approach with DVDs, and were court-ordered to shut down: http://www.wired.com/business/2011/08/zediva-shuts-down/

It’s more likely that the game publishers have just decided it’s not worth their time and effort to pursue the case than it is that the site is legally in-the-clear.

[DocCathode]

IANAL AFAIK ETC

Emulators are thoroughly legal.

Roms (sometimes called game images) ARE copyright violations. This is true even if you delete them after 24 hours or have a legal physical copy of the game.

Nintendo often went after emulator sites. This was often unsuccessful as Nintendo did not own the copyright on most of the games for the systems it made. They have no more legal standing to say “Take down all those roms” than you or I. They just thought they could scare sites into complying with them.

Those are the legal facts. I have an opinion on the moral issue, but this is GQ and not GD.

[md2000]

@DocCathode

IANAL AFAIK ETC

Emulators are thoroughly legal.

Roms (sometimes called game images) ARE copyright violations. This is true even if you delete them after 24 hours or have a legal physical copy of the game.

Nintendo often went after emulator sites. This was often unsuccessful as Nintendo did not own the copyright on most of the games for the systems it made. They have no more legal standing to say “Take down all those roms” than you or I. They just thought they could scare sites into complying with them.

Those are the legal facts. I have an opinion on the moral issue, but this is GQ and not GD.

But the basic game is copyrightable; the graphics, for example. The basic gameplay - you can’t sell a game called Oligopoly where you put condos and casinos on real estate squares, etc. The court case about “look and feel” of computer programs goes back to one of the early programs (spreadsheet?) where copying the whole program - menu structures, program behaviour, etc - was a violation of copyright, even if from the ground up the actual code behind it was homemade.

I’ll go along with the idea that either the manufacturer doesn’t care or finds it too much hassle.

[dracoi]

@md2000

But the basic game is copyrightable; the graphics, for example. The basic gameplay - you can’t sell a game called Oligopoly where you put condos and casinos on real estate squares, etc. The court case about “look and feel” of computer programs goes back to one of the early programs (spreadsheet?) where copying the whole program - menu structures, program behaviour, etc - was a violation of copyright, even if from the ground up the actual code behind it was homemade.

I’ll go along with the idea that either the manufacturer doesn’t care or finds it too much hassle.

I think his point was that Nintendo isn’t the copyright holder. The holder is often the game company that did the development. Nintendo can’t enforce a copyright owned by someone else.

[DocCathode]

@md2000

But the basic game is copyrightable; the graphics, for example. The basic gameplay - you can’t sell a game called Oligopoly where you put condos and casinos on real estate squares, etc. The court case about “look and feel” of computer programs goes back to one of the early programs (spreadsheet?) where copying the whole program - menu structures, program behaviour, etc - was a violation of copyright, even if from the ground up the actual code behind it was homemade.

I think you are laboring under two misaprehensions

#1 Rom sites only offer games that are like hit games

While some rom sites may incude ‘Giant lizard monster’ as a curiousity, 99.99% are offering “Godzilla” for download. This isn’t a case of selling Ogliopoly, or even Monopolee. It’s a case of selling Monopoly.

#2 Nintendo owns the rights to the games made for its systems

The company that created the game owns those rights- Konami, Tengen, Electronic Arts, etc. OTTOMH Nintendo owns the rights to a few Mario games and a handful of others.

[Frylock]

@md2000

But the basic game is copyrightable; the graphics, for example. The basic gameplay - you can’t sell a game called Oligopoly where you put condos and casinos on real estate squares, etc.

I’m almost certain this is false–the consensus at board game design boards, anyway, has been that there is no law against importing all the rules of a game wholesale into your own, so long as the artwork and terminology are completely different.

[DocCathode]

Bah, that third word should be “Monopoly”

[md2000]

Whereas a “Simon” clone was taken off the app store until it was modified so it did not look eeriely similar to the original game… I assume Apple would not have cared if there was not a legit issue.

Also tetris:

Copying the Look and Feel of Tetris Is Software Copyright Infringement -...

copying the look and feel of tetris is software copyright infringement.

Tetris identified 14 copyrightable elements of the game that Mino had admittedly copied, and that Tetris argued constituted protectable expression. These elements included the number and configuration of playing pieces, the size of the playing field, the way pieces moved in the playing field, the behavior of the game when a horizontal line was filled, and the behavior of the game when over, just to name some.

Art_Copyright_Coalition_White_Paper.pdf

The term “substantially similar” by its very nature is ambiguous and lends itself to
interpretation on a case-by-case basis. Therefore, before anyone can determine if there is
an infringement, an examination of both the allegedly infringing work and the original
underlying work must be made to see if they are “substantially similar.” Cases have
generally held that there must be a substantial material taking in order for there to be
infringement. Substantial can be looked at both quantitatively and qualitatively. Not
only do we look at the amount of material copied, but we also consider the importance of
the portions copied. The more important the copied elements are to the underlying work,
the less the court will look to in terms of amount.

the short answer then is - only the judge or jury can tell you if you are violating copyright.

[Frylock]

Additional information from the US Copyright Office:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

[BigT]

@Blakeyrat

Zediva tried that approach with DVDs, and were court-ordered to shut down: http://www.wired.com/business/2011/08/zediva-shuts-down/

It’s more likely that the game publishers have just decided it’s not worth their time and effort to pursue the case than it is that the site is legally in-the-clear.

Yes, but there’s also a company that may be legally allowing people to use software on other computers–it’s up in court right now, and a judge denied an injunction against them.

I do agree it’s likely illegal, though, and that the copyright holders just don’t care enough to stop them. It’s just classic abandonware.

Claiming legality is just a way to encourage people to use their services. I know a book sharing site that does the same thing. (or, at least, I found one book there, and haven’t been able to find it again, as I forgot the name.)

[Garfield226]

md2000 and Frylock, you might have better luck searching patent, rather than copyright, for that particular argument. Copyright protects expression: The design of Monopoly’s battleship, the tune used in Mario level 1-1, the language used in rulebooks, etc.

Copyright doesn’t protect rules or procedures. But these things can (sometimes) be patented. Here’s Wizards of the Coast’s patent on methods for playing a trading card game (including describing the “tapping” mechanism).

[md2000]

I’m assuming the concept is the same copyright of books or movies. You can’t simply take the characters or story, rework it slightly, and pass it off as new. Scroooge with 3 o’s and a happier ending, completely reworded, does not absolve you of copyright violations. The test, IIRC IANAL is “substantially similar”. WHen Battlestar Galactica came out, the Star Wars folks tried to sue because of the dogfights with little spacecraft - not an original idea, and admittedly a very long shot, and they lost, but the lawyers thought it was worth arguing in court.

So unlike patents, you can’t copyright “roll the dice and advance that many squares, roll again on doubles” but if it’s basically Monopoly with different names and gamepieces - well, let the judge decide.

[steronz]

This whole thing about “they were told to shut down in 2008 but did some hand-waving about physical cartridges and now they’re legit” sounds extremely… made up. Not that I’m accusing the OP of making it up, but rather wherever he heard it from.

A) If this is multiple sites as the OP implies, then how were they all told to shut down at the exact same time (2008)?

B) Since the copyrights are likely owned by dozens of companies, which ones told them to shut down? NAMCO? EA? SEGA?

C) If NAMCO told a site to shut down and they settled somehow, that doesn’t grant them magical immunity for the site from, say, SEGA, who could still sue them at any point.

D) In order for you to play the game in your Java window, your computer needs to make a copy of all the executable code. Copyright comes into play, because you’re making a copy of it. Just because there’s some cartridge somewhere doesn’t change that. They could even have a billion cartridges for each game, and it still doesn’t give them the right to make copies, which is exactly what they’re doing by delivering you the game over the internet.

So I suspect that these sites are based out of some country with less than US-friendly copyright laws, and they’re totally illegal but nobody really cares because there’s not much money to be made in Megaman 3 anymore. They probably came up with this song-and-dance about cartridges to make moms feel better when they catch their kids at gamez.ru.

[Garfield226]

@md2000

I’m assuming the concept is the same copyright of books or movies. You can’t simply take the characters or story, rework it slightly, and pass it off as new. Scroooge with 3 o’s and a happier ending, completely reworded, does not absolve you of copyright violations. The test, IIRC IANAL is “substantially similar”. WHen Battlestar Galactica came out, the Star Wars folks tried to sue because of the dogfights with little spacecraft - not an original idea, and admittedly a very long shot, and they lost, but the lawyers thought it was worth arguing in court.

So unlike patents, you can’t copyright “roll the dice and advance that many squares, roll again on doubles” but if it’s basically Monopoly with different names and gamepieces - well, let the judge decide.

I think your assumption is faulty. You can, in fact, take the story and rework it, as long as you don’t use the copyrighted work’s expressions (e.g. Their depiction of characters, specific substantiative phrases, music).

[md2000]

Of course - a story arc is not copyrightable, but it’s hard to do some parts without substantially copying…

http://www.avvo.com/legal-answers/how-closely-can-my-novel-follow-the-plot-of-a-copy-141663.html

Attorney answers (3)
*Pamela Koslyn
Los Angeles Business Attorney *
Answered 2 years ago.
Copyright infringement is a difficult concept and not easily explained in a forum like Avvo. Basically, courts will look at the total look and feel of two works, and compare how “substantially similar” they are. The entire work is considered, but its unprotectable elements get disregarded. Disregarded elements include themes, ideas, facts, and obligatory to the genre or cliche scenes , called “scenes a faire,” such as doomed young lovers, with a scene of angry parents forbidding the love. The original creative elements, such as tone, setting, dialogue, characters, pace, etc. etc. are compared point by point, and if enough of them align, there’s infringment, especially if you can also show access to the work. Where access is obvious because, in your example, “Harry Potter” is a famous published work, then the standards for similarity are lower, and where the access is questionable, more similarity is required to find infringement.

Plot points, or “beats” in tv-speak, are among the creative elements that can be infringed, so it’s not true that plots aren’t part of a what’s protected in a work’s copyright.

That’s a part of the answers…

SO to get back to the OP - either the game is licensed, or the owners don’t care and could not be bothered playing “whack-a-mole” when they would have to make a serious effort with expensive lawyers to validate infringement.

One of the answers references this:

Nichols v. Universal Pictures Corp.

[Cliffy]

Games are copyrightable expressions. Their artwork, music, name, etc., are all protectable, as is the program itself. The system of play isn’t, but emulator sites don’t offer clones, they offer versions of the actual game. (The system of play could be patentable, but AFAIK usually aren’t, and patents typically only last 20 years, so they wouldn’t apply for older games anyway.)

I don’t know if emulation itself is always legal, maybe it is (I can see a patent argument, but only if the system being emulated is protected by patent, of course), but the fact that either the site or the player has a legal copy of the game is absolutely immaterial. The whole point of copyright is that it’s the right to copy. No one can make a copy of your work without your permission. By providing a game on an emulator site, the owners of the site are making a copy of the game, including all its protected elements, and utilizing a copy of the program itself to do it. By downloading a ROM, or actually even by displaying the game’s art and music in a browser, the player is making a copy of at least some protectable elements. Neither of these things is legal without the rightsholder’s permission.

As stated, the rightsholders mostly don’t seem to care, or they’re overwhelmed by the number of sites out there such that they can never chase 'em all down, because they figure that there’s few or no lost sales due to the piracy. And I certainly don’t know of any enforcement against players. But there’s nothing about emulation of copyrighed games that’s legal, unless there’s a license agreement with the rightsholder.

–Cliffy

[iamthewalrus_3]

@DocCathode

Roms (sometimes called game images) ARE copyright violations. This is true even if you delete them after 24 hours or have a legal physical copy of the game.

If you rip the ROM image from your own copy of the hardware, you have a strong Fair Use argument that the resulting copy is not a violation of copyright law under the format-shifting precedent of RIAA v. Diamond Multimedia Systems, Inc.

@The court

The court also finds that the Rio works in harmony with the main purpose of the statute: “the facilitation of personal use.” Citing the purpose behind the enactment of 17 U.S.C. § 1008, “[t]he Rio merely makes copies in order to render portable, or ‘space-shift,’ those files that already reside on a user’s hard drive.”

The case there was ripping a CD for use on an mp3 player. Ripping a game to play on, say, your phone or your laptop is very analogous (IANAL, but the EFF claims that many lawyers would make the same claim).

This isn’t directly relevant to the OP, but copyright law and fair use are sufficiently complicated that it’s difficult to make a blanket statement like yours.