As you may have read recently, something rather weird happened in the field of videogame emulation. A NES emulator – a magic, digital aether-box that lets you play Mario on a thing that isn't a NES – was approved on Xbox One. Mario. On Xbox. What a time to be alive. And maybe in prison.
The thing is, emulators are sort of… tricky, legally speaking. While playing Goldeneye on your PC might sound – to you – like an incontrovertibly superb idea, there are some who see emulators as a decidedly bad thing. People with teams of lawyers, burbling geysers that shoot money and who own the intellectual property rights to Goldeneye.
So, where exactly are you, legally, if you download an emulator? What if you make one? And what if you make one and try to sell it (tl;dr: don't)? We spoke to videogame lawyer Jas Purewal, of digital entertainment and technology legal firm Purewal & Partners LLP, to find out how much trouble you could be in.
Classics for the masses
You've developed and distributed an emulator and now there's a van parked across the street that hasn't moved all week. You hear clicking on the line when you make a phone call. How badly is a console manufacturer about to screw you?
If you've really annoyed them, fairly badly. The issue is that while you might see your emulator as bringing much-loved videogame classics to the masses, the company whose software you're copying might plausibly take a different view. As far as they're concerned, what you're doing is piracy.
"The argument that a videogame device manufacturer or a videogames developer can make against emulation is quite simple: emulation constitutes IP infringement, specifically infringement of copyright law and potentially of trademark law principles," says Purewal.
"IP law is not set up to recognise emulation, and consequently almost any type of emulation runs the risk of infringing IP law in some way, shape or form.
"In fact, it gets worse for emulators, because specific laws were passed in the 1990s and 2000s which were specifically designed to stop different types of piracy. But they also potentially stop emulation. These were called 'technological protection measures' or 'TPMs'. So many countries have TPMs as part of their IP law. And so, the basic IP law position, plus the specific legal changes introduced to combat piracy, all mean that the basic legal position is against emulators."
...how much trouble?
OK, but emulators are everywhere, right? They can't get you into that much trouble?
Well, it depends on how much of an example a hardware developer or publisher decides to make out of you.
Going after people who distribute emulators is a bit of a double-edged sword for big companies. On the one hand, going after someone who has produced an emulator for a now-defunct system might just not be worth it in PR terms. On the other hand, depending on where you live, you could - feasibly - end up in prison. Especially if you try to sell it.
"Many countries make piracy a criminal offence," says Purewal. "So in the very worst case scenario - and this is semi-academic, most of the time - there could be criminal sanctions for the commercial distribution of an emulator.
"But most of the time it doesn't get that far, and [the legal response] tends to be takedown notices against websites distributing emulators. If those takedown notices aren't complied with, then sometimes the manufacturer or developer or publisher decides to make an example of that business and take it as far as a lawsuit. If the lawsuit is successful, it could result in criminal damages as well as a court order to take the emulator down.
"From a legal perspective, it could - in theory - go further into criminal matters... In theory it could result in a custodial sentence. But that's relatively rare."
Mo' money, mo problems
"But it was distributed for free!" you cry. "It's not like anyone was making any money off of it!
Is that true?
Good. Because while arguing that your emulator was essentially a hobby project isn't - legally speaking - enough to let you off the hook, selling an emulator is much, much worse.
"In practice, it's always going to be regarded as an aggravating factor if there's a commercial gain element to the distribution," says Purewal.
"But equally there have been cases involving copyright infringement or piracy or emulation where the person doing it has sought the defence of saying, 'Look, we weren't doing it for commercial gain,' and that [hasn't been] enough.
"So, doing it for commercial gain is a bad factor, but doing it on a not-for-profit basis isn't always enough to get you off."
You've changed your mind. Actually, you're only going to download an emulator and some games for you own amusement. That's OK, right?
No, not really. What you've done here is piracy. Again, there's a PR decision to be made here by the IP owner - remember those kids in the early 2000's who got sued for pirating Britney albums? - but what you don't have is a legal defence.
"This is the classic problem for the rights holder," says Purewal. "Do you penalise the person who is facilitating the distribution of content you don't like, or do you penalise the people who are consuming the content and ultimately providing the market for this?
"There have been a few attempts over the years to go after the consumers of the content. Years ago in France and the UK and the US, you might have had rights holders sending letters to individual consumers, saying 'You've downloaded such-and-such content and it's IP infringing.'
"That strategy didn't work. It caused lots of bad PR for companies who were undertaking these actions, and the evidence on balance seems to be that it didn't reduce the infringing activity they didn't like. So, yes, in theory they could go after consumers, but in practice that seems to have fallen out of favor as a strategy - and rightly so."
But it's a NES emulator! It's not like you can go out and buy a NES anymore. How else are you going to play the original Kirby's Adventure?
In legal terms, that's your problem. Of course, the likelihood of your getting into trouble declines according to how old the system you're emulating is - Sega is probably going to care less about a Mega Drive emulator than Sony did about the PS3 hack when its console was still current-gen - but legally they're one and the same. If you want to play Dr. Robotnik's Mean Bean Machine on an emulator, but have powerful enemies at Sega, be careful. Very careful.
"From a legal perspective, [you're in trouble]," Purewal confirms.
"From a practical perspective, the older the device, there is probably a better argument that - in practice - the rights holders are less likely to enforce [the law]. That's one of the reasons we've seen emulation succeeding for older games rather than newer games. That's not a legal [thing]; that's just the practical reality. Is there enough at stake for the rights holder to pursue the emulator?"
Owning the original
But you bought Kirby's Adventure years ago! And a NES! It's not your fault it broke last week. You only downloaded the emulator and the game to replace what you had already paid for!
Let's call this the 'Napster argument'. Back when digital music piracy started to become a thing, there was a piece of internet wisdom drifting around that, so long as you had paid for a physical or digital copy of an album, you were free to download it again even if the source was shady. After all, you had paid for it. Britney had your money. Surely the corporate lawyers couldn't punish you for downloading something you already owned?
Oh, how you underestimate corporate lawyers.
"From a consumer perspective, I think [one] can see the force of [the Napster argument]," says Purewal. "[But] from a legal perspective, historically, that wasn't good enough."
"What we're talking about here is what's known legally as 'format shifting', and the way that this was deployed most famously was: 'I own a music album on tape. I shouldn't be acting illegally if I want to put that onto a CD.'
"Now, a lot of the time that would involve the customers actually undertaking that work themselves - actually doing the burning of the CD. Surely that shouldn't be illegal? And that argument has gained favor in a number of jurisdictions - although you'd be surprised how many countries don't actually legally say that you can do it. [But] it's become so widespread an industry practice now that it's not even worth bothering arguing about.
"I'm not sure that that necessarily applies to emulation, because in the vast majority of the cases it's not the consumers themselves who are turning a game that they had into an emulated copy. Obviously - they're just downloading an emulated copy. So that's different to taking your tape and burning a CD off the back of it. So, in other words, I can see the force of the argument, but even so-called 'safe' or 'traditional' format shifting isn't necessarily accepted.
"At the end of the day that's not how IP law works at present, whether we like it or not."
So you can't play Kirby's Adventure anymore, even though you paid for it in 1993?
Not legally, 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. And as horrid and draconian as that sounds, there is - sort of - an argument for why that should be the case.
"From an IP perspective, you are seeking to consume content which you can't have any other way, and that's understandable from a consumer perspective, but that's not a privilege consumers own," Purewal says.
"Consumers don't have the right to enjoy content for free just because the content isn't available in any other way. Now, from a practical perspective, the fact that there's no-one there to enforce those rights may be an indication that no-one will come after you in reality. But that's just down to how things work in practice; it's not a legal defence.
"A good commercial argument against [downloading unavailable games] is PlayStation Now, where for a long time PlayStation and Playstation 2 games couldn't be played, and Sony recognised the pent up need and spent a lot of time and effort in building a service that now makes its back catalog available under a commercial arrangement.
"One could understand that this is a reason to want avoid the wholesale emulation of PS1 and PS2 games, because that would deprive the PlayStation Now service of value. It's a good example of the industry and a manufacturer trying to provide a legitimate solution to that demand for older games."
OK. What if you made an emulator that could be used to play pirated games, but only use it to develop new games? Like what people are doing with the Dreamcast?
But...Is that really what you're doing? Really?
If yes, then you're probably all right. It's a gray area, but the legal consensus in most places seems to be that an emulator in and of itself is not illegal - it's what you do with it. Think of it in the way that torrent clients are not illegal - plenty of content producers make products legally available via torrents - but downloading a Blu-ray rip of a box office hit is.
"[This question] cuts right to the heart of the latest law on emulation, which is that in Europe, the US and elsewhere, there seems to be an evolving consensus that an emulator, in itself, is not illegal and doesn't infringe copyright or trademark law; it all depends on how it is used and by whom," Purewal says.
"If it is being used for entirely legitimate purposes, for the purpose of that user being able to still enjoy content that he or she has legitimately purchased [note: and copied themselves rather than downloaded], then that is an indication that usage of the emulator will be legal.
"However, if the the true purpose of the emulation software is to commit users to consume content for which they don't own a valid licence, then the use of that emulation is more likely to be illegal. And there has been a small string of cases in different parts of the world which has followed that principle: that emulation isn't illegal per se - it's how you use it.
But wait, aren't we committing piracy by copying firmware code from a console to use in an emulator? Or if we download an emulator that's based on firmware code, could a very savvy lawyer not take us to court for, if you like, 'firmware piracy'?
It's not a problem for you yet. But it's definitely an avenue that corporate lawyers could explore in the future.
"That may be where the next front in the emulation battle goes," says Purewal.
"It may well be that the device manufacturers have other arguments. A lot of the arguments so far have focused on copyright infringement, but maybe there are other IP law arguments that could be deployed.
"I would say that in practice, even though [we] seem to be moving in the direction that emulation is not illegal per se, that's still helpful to the console manufacturers, because they're relying on the second part of those positions, which is that if you're actually doing it to consume content for which you don't have a proper licence, then the manufacturers still have a course of action.
"And the evidence seems to be that only a very, very small proportion of emulator users are using [them legally]. The majority of emulation software and emulator users are using them to gain access to games they couldn't otherwise get.
"Now, of course, from their perspective, one can understand the reasons for using emulation software. But at the end of the day, console manufacturers might still have a course of action in law against those emulators. And even if somehow the law moves against them and they don't under copyright law, then there may be other IP law arguments they could make, such as patent infringement.
"Huge, very significant parts of consoles are protected by patents, and it may be that emulation software can be combated that way by the rights holder."
Grand Theft Emulator
Probably not, but potentially yes. More likely - if a company decides to punish you specifically - you'll get a takedown notice (for hosting an emulator on a website) or a fine (both/either). The problem is that the arguments distributors and downloaders of emulators make, in the main, are good common sense arguments. They're just not good legal ones.
"The overall conclusion is that the needle has moved, legally, a little toward emulation software," says Purewal. "But there's still more than enough [leeway] to allow manufacturers to take action against emulation software if they so choose, and depending on how that needle continues to move in the future, there [could] be other legal fronts in that battle.
"The only way in which emulation software or emulation users are going to have any secure, long lasting protection is if there are changes by the government to IP law. And there have been some proposals regarding reforming IP law in order to permit some approved forms of software emulation. In the years to come that will probably move up the agenda as we continue to see software becoming obsolete, hardware inoperable.
"But that is a very big open question for the next ten-to-fifteen years."
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