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Software Emulation and the Law

Written by Thomas Mould on 26 September 2016

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Are game emulators legal?

Emulators are a piece of software that allows you to play previous generation console games on modern hardware such as phones, computers and a variety of other devices.

The latest news is a NES emulator has been approved for the Xbox One. This will allow you to play classic games such as Mario and Duck Hunt on a console that isn’t the NES.

Emulators are essentially legal however to play the licenced games ie Mario on the emulator is illegal. For individuals such as you or I, it seems like a great idea especially if you don’t own a NES or classic console you can still play the games.

What trouble can you be in?

Although it may feel like a good idea to make and distribute an emulator for anyone to play their old favourite games, you could be in a lot of trouble from the owner of the copyright in the games that you play. Emulation of classic games is Intellectual Property Infringement.

Many countries make piracy a criminal offence so in the worst case scenario there could be criminal sanctions for the commercial distribution of an emulator however custodial sentences are relatively rare.

Most of the time this will not occur and the standard action is to issue a ‘take down notice’ against the website distributing the emulator. If the ‘take down notice’ is not complied with then the manufacturer / developer / publisher may issue a claim against the owner of the website and electing for an injunction to stop the creator of the emulator from distributing the work.

Personal use?

What about if you just wanted to download the emulator and a few games for your own use, to relive the memories? Is that ok?

Once again this is infringement of various owners intellectual property. The only reason that they may not wish to pursue you is the fact that the owner of the intellectual property have to make a commercial decision. Do they pursue you, the individual that didn’t mean any harm just to play a few games or do they go after the developer of the emulator who is sharing it with potentially millions of users?

The answer is simple; you pursue the owner of the website. By taking the emulator down you stop the distribution to the market and can sue them for damages. Over recent years, the pursuit of individuals for copyright infringement has fallen out of favour from rights holders and is partly due to the campaigns of ‘Copyright Trolls’ who threaten individuals for infringements that they have no knowledge of. This ultimately causes a PR nightmare for the owners of the copyright works as their customers avoid purchasing their games/ works.

Format Shifting

There is an argument, popularly called the Napster Argument that if you bought the game 20 years ago for the console that you are entitled to download a copy of the game, after all you have already paid the developer for the privilege of playing their game.

This unfortunately is not good enough as an argument. Technically, if you buy a CD in the shop and then take it back home to put on your iPod through iTunes the computer format shifts the data from the disc format to Mp3 format, this is illegal.

Are there any exceptions?

No. What you bought twenty-something years ago was a game cartridge, not a right to always have access to the game that was stored on it.

As a consumer, you don’t have the right to enjoy the content for free but because it is rarely enforced on the individual it does not mean that you should carry on this activity.

A legal alternative is services like Playstation Now, they have developed a back catalogue of Playstation 2 and Playstation 1 games to download and play on their latest consoles.

Conclusion

IP rights holders should embrace their vintage games and licence them to modern consoles for a small fee which will curb the use of emulators and provide another revenue stream. IP law also needs to accommodate with modern technology to keep up with software emulation developments.

 

If you'd like to know more about this article please send an email to Thomas Mould quoting the article title and any questions you might have, alternatively call the office number on 02380 235 979 or send an enquiry through our contact form.

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