The video game industry has achieved exponential growth since its inception from the late ‘70s and early ‘80s; we’ve seen the industry reach jaw-dropping valuations of over $200 billion dollars in 2022, gain worldwide exposure through multimedia expansion, and assist in expediting technological advancements and societal improvements. However, in our constant pursuit of “slaying the dragon”, we often forget what it took to get us there.
With the recent addition of the Delta emulator app onto the App Store, the heated debate surrounding video game emulation and its legality has reignited once again. The hero’s journey through this playthrough is quite dangerous (especially going at it alone!), so I implore that you take this blade of knowledge with you, and begin your epic quest!
How are Video Games Copyright/Trademark Protected?
Before we get into the nitty gritty of emulation, it is important to first understand the intellectual property of video games. Video games, like everything else in our lives, are structured entirely of data; from the captivating musical scores to the delicate artistic pieces, each ingredient comes together and synthesizes into a unique experience. This data is wholly stored into what is known as a read-only memory chip, or more commonly known as a ROM chip.
The ROM chips themselves are copyright-protected under the Semiconductor Chip Protection Act of 1984, and the courts have deemed the software contained inside the ROMs retain any copyright it may have. Companies like Nintendo and Sega have since been able to produce timeless classics, all while maintaining their proprietary rights throughout the years. Except, what happens to games that aren’t so “timeless”? What happens to games that have been seemingly lost to time, trapped in older hardware and being neglected year after year with no revival in sight?
What is “Emulation”? Is it Illegal?
We now enter into the ‘90s, where the surge of the internet allowed dedicated hobbyists and historians to create what we now know as emulation. Emulation in video games essentially recreates both the original software and hardware, granting access to them on modern devices. With this breakthrough, users across the world now had the chance to relive old memories, or experience new ones in ways previously thought unimaginable. And while this all sounds great in theory, the reality of the situation is much murkier.
In order for the average person to have access to these emulated games, they would need to download the code stored within the ROM chip; the same ROM chips that have been copyright protected since 1984. This concept, under the law, falls into digital piracy, which has forced companies to legally pursue said infringers of their copyright. Nintendo is a well-known example of this, actively pursuing websites that circumvent their encrypted technology with the intent of mass distribution. Numerous crack downs over the years have caused aspiring developers to slow down or even completely abandon their projects to avoid drawing the ire.
While it seemed like a cloud of darkness would completely any further progression into video game emulation, the turn of the century brought upon a ray of hope. A landmark decision made in the battle between Sony and Connectix found that emulators can be protected under fair use, so long as “the final product does not itself contain infringing material.” This ruling paved the way for software reverse engineering to directly compete in the market through its transformative nature and open accessibility to the general public.
The ROM chips themselves are copyright-protected under the Semiconductor Chip Protection Act of 1984, and the courts have deemed the software contained inside the ROMs retain any copyright it may have. Companies like Nintendo and Sega have since been able to produce timeless classics, all while maintaining their proprietary rights throughout the years. Except, what happens to games that aren’t so “timeless”? What happens to games that have been seemingly lost to time, trapped in older hardware and being neglected year after year with no revival in sight?
Can I Use an Emulator as a Developer?
Flash forward one final time to the present day, where the Delta emulator app has now taken center stage in the debate of legality within emulation. In November 2022, the EU enacted the Digital Markets Act, which seeks to make the digital marketplace more fair and contestable. This act forced many tech giants, Apple being one such company, to comply with the provisions by no later than March 2024. Apple quickly made the necessary changes to their rules, thus allowing emulators to exist on their App Store. The emulator supports titles from the Game Boy, Nintendo 64, and the NES/SNES to name a few.
So what does this all mean? Well if you’re a video game developer, the most important thing to understand is that distributing files or copies of video games is illegal in any capacity, especially if one stands to make profit from this. Emulators, so long as they are clean of any proprietary source code, are legal (at least for now or until a court in the future says otherwise) and can serve as both a preservation of older games and as a teaching tool for aspiring developers. If you are in the process of developing a video game and would like protection on your intellectual property, our warriors of justice are ready to join your party and help you on your epic quest.
Disclaimer: The information contained on this blog post is provided for informational purposes only and should not be construed as legal advice on any subject matter.