Hot Topic - Emulation: The Good, the Bad, and the Ugly Pt. 2 - Emulation and Abandonware: Good or Evil?

Bill Loguidice's picture

Each Issue's Hot Topic features brief commentary from the Armchair Arcade editors on an issue currently in the news...

This issue's Hot Topic is "Emulation vs. Original Hardware Part II: Law and Ethics"

Screenshots: David Torre

This hot topic is the second part of our discussion of the emulation of classic game systems on modern PC's and consoles. This is a controversial issue for most fans of retrogaming, because the only way we can get access to certain classic platforms and machines is via emulation and unauthorized (and usually copyrighted) ROM files. Furthermore, there is the more important issue of playability—some argue that it's just not the same to play a retrogame via PC emulation. Perhaps an even bigger controversy surrounds the emulation of modern consoles on PC's. Many emulation advocates stop short of saying that emulating games currently in production is ethically acceptable.

In the previous Hot Topic, we specifically discussed "Emulation vs. Original Hardware." Now we will discuss "The Legal and Ethical Conflicts of Emulation." The big question is, given that most forms of PC emulation constitute copyright infringement and are therefore illegal, should gamers still engage in the practice? Should intelligent and ethical gamers support projects like MAME?

Special note: We also discussed this topic last month in a special audio program.

Bill Loguidice, Armchair Arcade Editor: I have to say that in the end this comes down to a question of personal ethics. Of course the copyright and other laws say that using software you don't own is illegal, so there's no question there, but just because it's a law, doesn't make it right. Laws often lag behind reality. If you are comfortable with your own actions and decisions, then it's not up to me or anyone else to judge you, as long as you also accept the reality of the potential consequences.

I for one think it's an amazing technical achievement to emulate technology on hardware that it was never intended for. Further, not only is it an amazing achievement, but a valuable means of preserving that which is generally no longer available in regular retail channels. In other words, the original copyright holders can no longer benefit. Yes, as a collector I am the first to advocate use of original hardware and software, but if something happens to either or both of those items, I at least have the option through emulation of still experiencing that which was lost. Then, of course, there are those classic items I will never be able to either afford on the used market or find at all. Add to that the ability to have a ready historical reference and that physical storage is both finite and prone to wear, it's hard to argue against emulation.

What I do have a problem with - and it will be very difficult for anyone to ever convince me otherwise - is the emulation, copying and/or outright piracy of systems and games that are still on the market. Some like to defend their actions by saying that they have no money to buy games or that the games are overpriced and are not worth what they're being sold at. Unfortunately, that argument holds no validity. To put it simply, it is not one of your given rights to be able to play any game you want at any time. The way our society works is quite simple - you work to pay for goods and services that in turn allows someone else to work and pay for goods and services. With too many gaps along the way - too much theft, not enough buying, whatever - the system and in turn society as we know it begins to break down. If you're an anarchist, you'll be happy, but for the rest of us there's an obvious problem there.

If you were a game developer, would you be happy if your game, which you worked on 60+ hours a week for 18 months, only sold a few thousand copies because 100,000 other people downloaded it, played it illegally and did not feel compelled to pay for it? I don't think you would, because you'd probably be out of a job, maybe never given a chance to work on another game again.

It bears repeating that there are very few situations where any of us has a right to take something someone else makes for free if they don't choose to give it to us for free. Games are definitely not one of those situations. Again, the choice is yours to make, but try to understand the myriad consequences if you decide it's better to emulate than to buy when the latter is a real option.

Matt Barton, Armchair Arcade Editor: Let's just cut right to it: Stealing is wrong. I want people to respect my property and not take things from me without my permission, and I'm sure you feel the same. Respecting each other's property is one of the founding principles of life in a democracy. Now, I'm not a stingy man by any means, and probably put more money into those Salvation Army buckets than I can really afford. I also am not engaged in a lucrative occupation (I'm a teacher), and don't see how billionaires like Gates can sleep at night knowing that they are not using their fortune to combat world hunger, pestilence, and war. Nevertheless, I'd do everything in my power to stop a man from stealing from even the richest man in the world. Sure, I don't think Gates is right to horde wealth when he could do so much good with it, and while he may very well be the richest man in monetary terms, in spiritual terms he's the dirtiest, rattiest pauper you've ever smelled. The worst part is that people like you and me made Gates the man he is today, and we have little right to judge him. Let the man who has never installed a Microsoft product cast the first stone.

None of us can control Bill Gates. However, we can control ourselves, and that means taking responsibility for our own actions and ensuring that they're right. If we want to make this world a better place, we've got to make sure our own choices are honorable. It's up to us to set a better example. That means, first of all, letting ourselves be guided by principles rather than convenience. Instead of asking whether doing something is faster, cheaper, or more efficient, we need to ask whether it's right or wrong.

Yar's Revenge
Yar's Revenge (Atari 2600)
©1981 Atari

Let's decide now if emulation is right or wrong. First of all, is emulating an Atari 2600 game on my PC stealing? No. For it to be stealing, I'd have to take something that didn't belong to me. Downloading a game ROM from Kazaa is not "stealing," at least not stealing in any form I can recognize. What would be stealing is if I went to your house and stuck your Yar's Revenge cartridge in my pocket while you weren't looking. The difference is this—in the second case, I took something from you and you were worse off because of it. I gained, you lost, and the whole thing is vile and dirty. In the former case, however, I didn't steal from anybody. Nobody is one Yar's Revenge short today because some chap in Northern Ireland downloaded a ROM.

However, just because something isn't stealing doesn’t mean that it's permissible. Let's say that you tell me, "Matt, I'd like to send you a copy of this story I wrote, but you have to promise not to share it with anyone." If I say "Yes" to this, I have to abide by it if I wish to maintain my honor as a gentleman. I can always say, "No, thanks," if I feel I won't be able to resist sharing it. To put it simply, if I tell you I won't share it, but do anyway, I've told a lie. As someone who values honesty and wants to earn people's respect, I know that lying is a very bad move. Not only will I have broken the trust you had in me, but, assuming you tell others about it, my reputation will suffer. In short, nobody likes a liar. If you are a liar, and I find out about it, I will have as little to do with you as I possibly can.

When a game developer sells us a game, we are generally asked to agree to certain terms before we play it. These terms are typically referred to as the "User Agreement," or the end-user license. No one is forced to agree to these terms, though most of us are too lazy to take time to actually read the things. Most of us are only dimly aware of the promises we're making when we install a new piece of software. This is a regrettable situation for everyone involved. It's rather like that childish game where you ask someone to promise to do a favor for you without telling them what the favor is. It's very important for honorable men and women to ensure that the people who we ask to make promises understand exactly what they're promising before they make them. You may have heard people say that "shrink-wrap licenses" and user agreements like this are questionable and may not hold up in court. The reason they say this is that in other forms of business, a contract is only valid under certain conditions. Most importantly, each party must understand the conditions and consent to them without coercion. If I hold a gun to your head and force you to sign a contract, and this comes out in court, the contract will be rendered invalid. The same would be true if you couldn't read English, and I lied to you about what was on the contract. We leave it to the courts to decide the validity of contracts, but it's safe to say that, just like ordinary promises, people shouldn't make them carelessly.

Most of the games we're concerned about when we talk emulation are older games that are no longer available on the market, and many fans of emulation feel that this fact justifies their activities. I don't feel that it does, and that folks shouldn't try to ground their morals on economics. Imagine what would happen if we excused other crimes simply because it was economically justifiable to do so! What should matter is whether we are breaking a promise when we emulate a commercial game on our PC. Are we somehow lying to the developer or compromising our integrity?

Unfortunately, I'm sad to say that in a majority of cases, that's exactly what we're doing. We may not realize it fully, but it is our duty as citizens to learn about the law and to obey it. As citizens of a democracy, we are also responsible for ensuring that the laws are good and fight to change them if we disagree with them. As someone who has studied the so-called "intellectual property" laws for some time, I state that they are a disgrace to this country and something we should all feel ashamed of. Nevertheless, we should obey the laws and participate in this wonderful system of government that so many of our ancestors paid the ultimate price for us to enjoy. If you don't like a law, by all means fight to change it, but don't break it. If a man can die for your right to call yourself an American, you can damn well vote and fight to make this country worth his sacrifice.

What I would like to see happen is for us to negotiate with developers. Let's argue with them and not make promises we don’t intend to keep. We need more people willing to say, "No, I won't accept that license because it is too restrictive" and leave that game on the shelf. Let us send a message to the industry that we want more rights and won't accept a product that we feel asks too much of us. If you want to be able to share a game with your friends, make sure it's released under a license that gives you permission to do that. If you want to hack the game or use its code to make a game of your own, make sure the license lets you do that. There are people out there releasing games under licenses that let you do all of these wonderful things and more. But people are turning their nose up at these offers and instead disgracing themselves by lying and cheating. In my opinion, it is better to do without than to compromise your values. If more people will say "No!" to unfair licenses and support open source, free software, public domain, shareware, and other types of licenses, things will get better. The market will adapt to give you what you want.

Now, as far as abandonware is concerned, I will say this—Let us try to get in touch with the folks who "own the promise," so to speak, and see if they will change its terms or relinquish it altogether. This may not be the author or developer, but some other corporation or entity that currently holds the "rights" to the package. Let us work together to find and ask these folks if they will consider "liberating" the software so that it might persevere beyond the obsolescence of its intended platform. Let us support good people like Matt Matthews of Liberated Games, who has been doing exactly this task for us. If a developer says "No," let's agree to leave that game alone. Let the damn thing rot. After all, the developer has paid the price of damning that work to obscurity; it's his loss. I believe many people out there would agree to release their old games into the public domain or under a general public license if they were properly compensated. We need consortiums of videogame historians and enthusiasts who are willing to buy the rights to abandoned games so that we can preserve and make them available to everyone. If enough of us got together and pooled our resources, we could enrich the public domain with thousands of great games—all without telling a single lie.

Gamers, I've grown up a lot since I copied my first floppy. I hope that some of you have, too, and the rest of you will soon. Let's respect the law, respect each other, respect developers, and agree to do what's right. Anything else is unacceptable to a true American.

Matt Matthews, Guest Editor from Liberated Games and Curmudgeon Gamer: I am increasingly uncomfortable and unhappy with the state of copyright law and old videogames. In particular, I think that even the most innocent copying of games is probably illegal under current laws and licenses.

Let me preface this by saying that I am not a lawyer, but I have spent a reasonable amount of time trying to educate myself about what the law says on copyright. I'd be happy to learn that I'm wrong on these issues.

Most recreational use of emulators, whether for a console or a home computer or an arcade machine, is based on the use of a software copy of the game program and data, colloquially called a ROM. The law permits a backup copy of software to be made by the licensed owner of an original copy of the software. Here's how the law could be interpreted such that I could almost never make use of a backup copy of software that I own.

Skate or Die
Skate or Die (C64)
©1987 Electronic Arts

I own an original 5.25" floppy diskette of Skate or Die by Electronic Arts for the Commodore 64, complete with the original flat cardboard folder and instructions. First, suppose I'd like to make a backup of that software into a more stable medium. As with most software of that era, Skate or Die was stored on the diskette along with reasonably troublesome copy prevention. It might not even be possible for me to create a perfect copy of the diskette with consumer hardware. Am I allowed, under the backup copy provision, to obtain the copy from someone else, say in the form of a cracked copy of the game from a website for FTP site? I'm not sure that's clear. Let's assume that this isn't a problem.

(Incidentally, the Commodore 64 is an easy case. There actually are pretty robust tools for making backups using easily obtained hardware. In the case of a NES cartridge or the chips in an arcade board, the backup may be extremely hard and expensive to make.) Worse yet, even if I could make a useful copy of the game on my own with additional software (there were cracking programs for this precise purpose), the method itself might put me in violation of another part of copyright law. The software which makes a copy may very well modify the original version in order to create that useful copy. That's a derivative work, something that copyright law may prohibit. Again, let's assume this isn't a problem and move on. Now, let's assume I've somehow made a legal backup copy of Skate or Die and stored it in D64 format on a personal computer. Here comes the worst part: this backup is available for my use in a situation where my original fails to work. Since I have a working original copy, by definition I cannot use the backup, therefore I cannot use the backup with an emulator. So the solution is to destroy my original, right? Ok, but am I even allowed to use the backup on anything but the original hardware, or in the original format? Am I required to make another 5.25" floppy diskette and use it only on a real Commodore 64? If you begin to see the issues I've raised as serious issues, then it becomes clear that nearly all use of copyrighted software with emulation is potentially illegal, perhaps in several ways.

Mark Vergeer, Armchair Arcade Assistant Editor: Today the attitude towards videogames is changing. Games are now widely perceived as an important cultural entity. Academic media studies are extending to include games, and games are being written about in academic journals. Let's face it—games are becoming an integral and important part of our culture.

Game publishers use proprietary formats that can only be used on proprietary hardware. When it’s not economically viable for companies to continue to support the specific hardware that plays the media, there is a big chance of “cultural impoverishment” because it’s considered illegal to use/access the media in any other way. You will even be imprisoned for trying! So culture is lost because it's not economically viable or illegal to keep it accessible.

But if companies only see dollar signs and don’t take their responsibility towards the game-culture, then the people will have to themselves, and I see emulation as a necessity for preserving this culture. Today you can still get a functioning NES, but what if the last one dies on us? Of course, some game companies do ‘preserve’ culture in their own money making ways by releasing rewrites of original games for the new incarnation of consoles. Sometimes these classic collections turn out great. But it’s almost never the same as the real thing. It’s like reading a rehashed, modernized version of Hamlet written by Ms. Rowling (which will no doubt be a wonderful read) and pretend it’s the real Shakespearean-deal.

I do not condone/approve of copying modern/recent games and running those on emulators and actually steal software this way. Especially when it concerns systems and games that are still commercially available. But I think emulation should be considered legal when it concerns older platforms that are considered commercially ‘dead’ and money is not being lost by emulation.

Why not release the old games to the public domain copy protection free after the money is earned so that libraries can preserve the games and programmers are able to create ‘players’ like SCUMMVM to keep the game code compatible and running on modern hardware/software environments? The abandonware solution is a pretty good one in my opinion.

Today the world, and especially the media industry, is going a bit overboard with all those copy protection schemes/copyright laws. Often those schemes make life pretty miserable for regular users and sometimes it even destroys the compatibility and durability of the media. Error correction and copy protection on CD/DVD media often interferes with each other and we end up with a less durable solution. For example buying an audio CD and expecting it to play on your car CD-player might give you some unpleasant surprises. Some audio CDs are so mangled by copy protection schemes that the disks aren’t technically and legally audio CDs anymore and aren’t even allowed to sport the compact disc logo!

Mat Tschirgi, Armchair Arcade Assistant Editor: Given that emulators are technically illegal, I still support it, but only when it applies to classic systems—emulating a NES game would be much more acceptable than emulating a Gamecube game.

Emulation allows gamers to experience a wide variety of games, many never released in their home country. It enables gamers to gain a greater appreciation for the history of gaming as a whole, whether they just want to see where the Ninja Gaiden series began or if they want to complete their own "survey history" course on fighting games.

The use of emulators allows me to get music for my online video game music radio show, Do the Mario!. Though most of the time I get music that is ripped by others in a proprietary format, sometimes I have to extract the music from the games themselves. A lot of video games never were given a proper soundtrack release in the first place and through some emulators, one can rip their own soundtrack to listen to on their own time.

Sonic the Hedgehog 3
Sonic the Hedgehog 3 (Genesis)
©1993 Sega

I really wish more companies would release compilations of their older software. Some of the most fun I've had recently has been from playing through Sega's Sonic Collection for the GC, which had a relatively smooth interface and a decent sampling of the early Sonic titles. In the home video and DVD market, lots of older titles are released over and over again in new special editions. Why this isn't done for computer and video games is a mystery? I know of a lot of friends that would be willing to check out a compilation of classic Castlevania titles...

Cecil Casey, Armchair Arcade Web Editor: We all have to say that PC emulation is a direct violation of the copyright holder's legal rights. This places these activities squarely into the realm of illegal under the current laws. But this in no way means that these activities have been detrimental to the copyright holder's interests. In fact MAME and its non-arcade brother MESS have allowed many otherwise dead systems to have commercial life breathed back into them.

Let me start with an example that we have hashed over many times: The Amiga emulation scene. For all intents and purposes, the Amiga copyrights really were of little or no value to anyone in the early to mid 90’s. That is because no one had any place to sell new Amiga operating systems. There was no hardware being built because all the core custom chips just cost too much to produce in quantities that would be used by people wanting to tinker with an old computer.

But never underestimate the Amiga user community. Yes, we all have been forced off the reservation and into the living hell that is Windows, but we are still the creative bunch of dreamers that we had been. So as soon as someone on the MAME/MESS projects announced that there was a cycle accurate 68000 CPU emulator the first faint blip of pulse awoke in the long dead Amiga.

As you all know how this story works out, I will jump ahead to the part that ties into the question of emulation. I can assure you that the people at Cloanto who own the rights to the Kickstart and Amiga DOS thank heaven that people gave them a business for free. For this gift I have to say that they have been grateful--take a look around the Amiga Forever web site and you find that they encourage making the Amiga OS open source.

Let's look at another example that Bill wrote about this month. The Commodore 64 30-in-1 game stick. There has been a lot of work by several people for that last couple of years to get a Commodore-64 emulated. And we have had one on the PC for quite some time. Along with the emulator there are several archives of C-64 software available for download. And up to this point no one has made any money on any of it. But once again the legal holders of the license have been given a gift in several ways. The software is readily available to them to download and work with, so once they get rights they can have most of the ‘warez’ available to them. Secondly Jerry Ellsworth managed to get the entire C-64 on to one ASIC and RAM/ROM. So they can lay out a whole C-64 on a board no bigger than the one in an Atari 2600 joystick PC board. At the last I had heard copyright holders had produced around 200,000 of these for sale through QVC. Not bad for a dead computer system.

From these examples I would have to say that emulation is TOTALLY beneficial to holders of copyright of older systems. You get archiving and development for free and get a built up retro fan base on the net. The thing that they have to learn is that if they bite the hand that gave them the free archives and development that people will leave them to twist in the wind once again. We don’t need what they are selling; we buy it out of curiosity, or nostalgia. Piss us off and we will put you back onto the garbage heap of history.