Ready Player One: Video Game Emulation and the Law

Noah Cothern, Contributing Member 2023-2024

Intellectual Property and Computer Law Journal

           

I. Introduction

The video game industry is one of the largest markets in modern society.[1] By the end of 2023, the market is expected to reach 334 billion dollars globally.[2] The video game industry, like industries for other consumer goods, regularly phases out old products in favor of newer ones. This results in many older video games and video game consoles being pushed out of the market. For many, this is where emulation steps in. Emulation is the process of digitally simulating a video game console’s architecture on another device such that it can play digital copies of games originally designed for the original console.[3] This process has proved controversial with video game and console manufacturers such as Sony and Nintendo who argue that emulation violates various intellectual property laws.[4]

This article explores when and where video game emulation violates the law. Part II gives background on how emulation works and relevant caselaw precedent. Part III traces the boundaries between what emulation practices likely do and do not violate the law. Part IV concludes that, because litigation between developers and users is scarce, the boundaries of legality rest on untested presumptions until a body of substantive common law develops.

II. Background

How Emulation Functions

Two distinct clusters of data are required to successfully emulate a video game.[5] These are the emulation software itself, and the game file often known as a “ROM” or read-only memory.[6]

The emulation software attempts to replicate the computing environment of a given console. Thus, a computer can mimic the entire architecture of a given console as if the computer were running any ordinary piece of software. However, many game consoles – particularly those which are more sophisticated – require a BIOS file to operate.[7] The BIOS or basic input-output system is the operating system at the core of a game console.[8] The BIOS file thus acts like a key that is required to animate the emulator. Importantly, this BIOS data is highly likely to be copyrighted by the developers that wrote it.[9] The BIOS data can be acquired by “dumping” it onto a computer from a console that a user already owns.[10]

Once an emulator is functional, it requires a ROM file to play. A ROM in the context of emulation is a digital copy of a video game.[11] ROMs, like BIOS files, are almost always copyrighted by the developers that created them.[12] ROMs can be acquired by dumping data from an already owned copy of a game onto a computer using special software and adapters.[13]

Caselaw

Despite the controversy of emulation and the numerous threats levied by certain developers, the issue has been litigated with extreme rarity, with only two cases of note. Both cases occurred when the video game and emulation industries were in their respective infancies. Regardless, they remain the legal backbone of any cases which may arise in the future.

The comparatively less important of the two cases, Sony Computer Entertainment America, Inc. v. Bleem, LLC, involved the use of comparative advertising and fair use.[14] Bleem had developed an emulator for the PlayStation 1 [“PS1”] which was capable of producing visual fidelity that surpassed that of the PS1.[15] To market the emulator, Bleem took screen shots of games on a PS1 and contrasted them to screen shots of the same games running on their emulator.[16] In finding for Bleem, the 9th Circuit “look[ed] to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”[17] Importantly, the court in Bleem, expressly stated “the legality of the emulator” was not considered in their decision.[18]

The issue of emulation legality was more directly addressed in Sony Computer Entertainment, Inc. v. Connectix Corp. Connectix, like Bleem, had developed an emulator for the PS1.[19] As a requisite step in the production of that emulator, Connectix had copied the PS1’s BIOS file and reverse engineered it to produce their own version.[20] The 9th Circuit laid out the general principle that copyright protects expression, not ideas. However, a BIOS file contains both expression and ideas.[21] Because BIOS files are not readable by humans, the unprotectable elements of a BIOS file can only be extracted by copying and reverse engineering. Therefore, the court held that “[W]here disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.”[22] With this in mind, the court turned to the 4 statutory factors of fair use[23] and determined that Connectix’s copying of the BIOS file for reverse engineering was protected by fair use.[24]

III. Discussion

Emulators

The lines drawn by Connectix and Bleem reveal how modern emulators can remain legal. Firstly, as apparent from Connectix, copyright law protects the expression of ideas, not the ideas themselves.[25] BIOS files are processes, systems, or methods of operation otherwise unprotected by law.[26] So long as a developer copies a BIOS file for the sole purpose of studying and reverse engineering it, the developer’s use will be protected.

While the study and reverse engineering of BIOS files may have been possible in the early 2000’s, several factors make this less possible in today’s world. Firstly, video game consoles have become far more sophisticated and complex than they were when the PS1 was on the market. Released in 2020, the PlayStation 5 can handle almost 25,000 times more polygons per second than the PS1.[27] With the exponential increase in sophistication in modern consoles, the ability of emulator developers (who are usually unfunded) to recreate the BIOS files may be limited. [28]

Additionally, many developers may take steps to prevent the successful copying of their consoles’ BIOS files. The Connectix case is well known in the video game industry.[29] Developers looking to impede legal copying of their BIOS files may take steps to conceal, obfuscate, or otherwise protect the sensitive information at the core of their consoles.

It may be for these reasons that popular emulators on today’s market require users to bring their own BIOS files.[30] Because the bulk of the emulator which recreates a console’s architecture is only a system or method of operation, it may be distributed freely so long as it lacks the “key” BIOS file required to operate the system.[31] Ideally, this approach requires a user to download the BIOS file from a console they already own and plug that file into the emulator.

The legality of the bring your own BIOS approach has never been tested in court. This is likely because the legally questionable conduct takes place on the user’s end rather than the developer’s end. A civil lawsuit brought by a major company would be extremely unlikely to target an individual person who used their own BIOS to power an emulator. This is because individual users are (1) difficult to track down and (2) attorney costs would likely exceed recovery. Rather, companies would be far more likely to target the distributor or developer of an emulator as these parties are more easily identifiable and are more likely to have deeper pockets. However, because the developers are free to distribute unprotected systems or methods of operations, their conduct is safe from liability. Because of this, solid determination of the legality of the bring your own BIOS approach is unlikely to occur.

ROMs

The legality of downloading ROMs is slightly different than that of downloading emulators. ROM files, unlike emulator files, are broadly protected as “original works of authorship fixed in [a] tangible medium of expression.”[32] Because of this, downloading ROMs from the internet violates copyright law.

It is widely believed that extracting ROM files from a copy of a game that is already owned by a user will not violate copyright law – much like the bring your own BIOS approach.[33] However, like the bring your own BIOS approach, extracting one’s own ROM files is a legal practice unlikely to be tested because the conduct occurs on the user’s end. There may, however, be grounds to believe that courts may find the practice acceptable. The business model at issue in Connectix required users of the emulator to furnish their own PS1 games,[34] and the court never indicated any issue with this practice. However, this may be because the issue raised by the parties concerned the emulator itself. Also, there is an important difference between using a physical copy of a game and extracting a ROM file from a physical copy of a game. Once a ROM file has been extracted, a user could then sell the physical copy. A system of emulation that requires physical copies instead of ROMs can therefore reduce the impact of the secondhand market on a developer’s sales. For these reasons, the situation in Connectix can likely be distinguished. Thus, the question of whether extracting a ROM file from an already owned copy of a game violates the law remains unanswered.

IV. Conclusion

Video game emulation presents a complex intersection of modern technology and historical intellectual property concepts. Through analysis of the limited existing case law, the boundaries of fair use and copyright infringement can be discerned and accounted for. The legality of certain practices such as bringing one’s own BIOS and ROM files remains unanswered. Because of the nature of these practices, definite resolution is unlikely to occur.

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[1] Simon Read, Gaming is Booming and is Expected to Keep Growing. This Chart Tells You All You Need to Know, World Economic Forum, (July 28, 2022) https://www.weforum.org/agenda/2022/07/gaming-pandemic-lockdowns-pwc-growth/.

[2] Video Games – Worldwide, Statista, https://www.statista.com/outlook/dmo/digital-media/video-games/worldwide (last visited Oct. 19, 2023).

[3] Robert Earl Wells III, Video Game Emulators: What You Need to Know, Lifewire, (Mar. 11, 2020) https://www.lifewire.com/video-game-emulators-need-to-know-4687006.

[4] Riordan Zentler, Game On: What are ROMs and Emulators, and Are They Legal?, The Spokesman-Review, (Feb. 17, 2022, 3:29 PM) https://www.spokesman.com/stories/2022/feb/17/game-on-what-are-roms-and-emulators-and-are-they-l/ see also Kinglink, Let’s Talk About Emulators and Roms; A Former Dev Talks About Legality and Uses, Kinglink Reviews, (May 4, 2021) https://kinglink-reviews.com/2021/05/04/lets-talk-about-emulators-and-roms-a-former-dev-talks-about-legality-and-uses/.

[5] Kinglink, supra, note 4.

[6] Id.

[7] Id.

[8] What Is a BIOS And What Can It Do? PlayStation BIOS And Emulators in The 21st Century, The Young Folks, (June 19, 2017) https://www.theyoungfolks.com/video-games/105082/what-is-a-bios-and-what-can-it-do-playstation-bios-and-emulators-in-the-21st-century/.

[9] Kyle Orland, The Solid Legal Theory Behind Nintendo’s New Emulator Takedown Effort, Ars Technica, (May 31, 2023, 4:35 PM) https://arstechnica.com/gaming/2023/05/the-solid-legal-theory-behind-nintendos-new-emulator-takedown-effort/.

[10] Joshua Solomon, How to Dump Your Own BIOS on a PCSX2, ItStillWorks, (Sep. 22, 2017) https://itstillworks.com/12570576/how-to-dump-your-own-bios-on-a-pcsx2.  

[11] Zentler, supra, note 4.

[12] Id.

[13] Id.

[14] Sony Computer Entertainment America, Inc. v. Bleem, LLC, 214 F.3d 1022, 1023 (9th Cir. 2000).

[15] Id.

[16] Id.

[17] Id. at 1025 (citing Folsom v. Marsh, 9 F. Cas. 342 (C.C.D.Mass.1841)).

[18] Id. at 1024.

[19] Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 601 (9th Cir. 2000).

[20] Id.

[21] Id. at 602.

[22] Id. (citing Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992)).

[23] 17 U.S.C. § 107. “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

[24] Connectix, 203 F.3d at 609.

[25] Id. at 602

[26] 17 U.S.C. § 102(b).

[27] Steven Carr, PS1 vs. PS5: How Far Have we Come?, Decortweaks, https://decortweaks.com/ps1-vs-ps5-how-far-have-we-come/ (last updated Apr. 12, 2023).

[28]See Wes Fenlon, Dolphin Devs Estimate They’ve Done $10 Million Worth of Work Emulating the GameCube and Wii, PC Gamer, (Aug. 23, 2019) https://www.pcgamer.com/dolphin-devs-estimate-theyve-done-dollar10-million-worth-of-work-emulating-the-gamecube-and-wii/.

[29] See Gaming Historian, From Shady to Legal: How Bleem & VGS Battled Sony, YouTube, (Mar. 24, 2017) https://www.youtube.com/watch?v=UGHul1PrXCE&t=851s (amassing over 1.3 million views).

[30] Orland, supra, note 9.

[31] See 17 U.S.C. § 102(b).

[32] See 17 U.S.C. § 102(a).

[33] Zentler, Supra, note 4.

[34] Connectix, 203 F.3d at 599.