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It's possible to emulate a computer program for most older game consoles on a newer computer by first copying the game's data to your computer. But the EmuFAQ (http://www.void.jump.org/EmuFAQ/mod2_pt2.htm) cites several cases in United States case law that would in its theory make game copiers illegal to own under almost any circumstance, primarily citing Atari v. JS&A Group (1983) and Sega v. MAPHIA (1994) as evidence that copiers have no substantial non-infringing use. I claim that those decisions are based on legal theories that may not apply everywhere, and that possession and use of devices that copy Game Paks does not infringe copyright under Title 17, United States Code, section 117 (http://www4.law.cornell.edu/uscode/17/117.html), if you dump only Game Paks that you have purchased and do not distribute the backups.

Facts

A ROM cartridge is a plastic package containing a printed circuit board with a copy of a computer program, fixed in a mask ROM part. A Game Pak is a ROM cartridge designed for use with a Nintendo game system. (The term "Game Pak" is most commonly associated with Nintendo, but Nintendo does not claim "Game Pak" as a trademark in game instruction manuals; even if it did, Nintendo loses trademark rights by consistently using Game Pak as a noun rather than as an adjective.) A "genuine" Game Pak is one whose reproduction was authorized by the holders of any copyright in the computer program stored therein. A game copier is a device that "dumps", or copies and adapts, the binary data in the ROM of a Game Pak into a file called a ROM image, which is usable by an emulator running on a general-purpose personal computer. I will assume for this argument that the user of the copier owns a genuine Game Pak and does not distribute the ROM image produced by the copier.

Atari v. JS&A Group (1983)

Atari v. JS&A Group (opinion at http://people.bu.edu/ebortman/index/atari-js&a.htm; thanks lj) was the very first case ever to interpret 17 USC 117. I don't see much precedential value in it because for one thing, it's a relatively old 17 USC 117 case, and it also fails to mention several possible defenses. It dismisses the backup issue (117(a)(2)) by claiming that because mask ROM is not nearly as vulnerable to mechanical failure as the average diskette, JS&A could not show that mask ROM would "die" and need to be backed up; however, it makes no mention at all of adapting the ROM contents into a computer file (apparently the Game Pak owner's right under 117(a)(1)), nor does it say anything about fair use.

Sega v. MAPHIA (1994)

Sega v. MAPHIA (opinion at http://www.nyls.edu/cmc/uscases/sega.htm) resulted in the seizure of several game copiers from a pirate group. Though the EmuFAQ cites this case to support its theory that dumping Game Paks is not fair use, I find several important differences between the MAPHIA situation, described in the opinion's findings of fact and findings of law, and the current situation that could knock some holes in the applicability of the case's precedent.

Modern copier equipment designed for use with Game Paks for the Game Boy Advance console comes with a distribution of free development tools including GCC, emphasizing the use of copiers to adapt computer files into cartridges containing flash memory. In addition, a community has grown up around amateur development of computer programs for the GBA (http://www.gbadev.org/) such as Tetanus On Drugs. This adds an additional substantial use of the copier, possibly a primary use, and thus breaks Fact paragraph 35.

In addition to being able to adapt the quite nonvolatile mask ROMs of a Game Pak into a computer file, the copiers can also back up the information stored in the EEPROM, flash memory, or battery-backed RAM used in genuine cartridges to save the play state. These save media are much more volatile than the mask ROMs themselves and may require backups, breaking Fact paragraph 36, which stated that backups are not necessary to protect any of the information stored in a Game Pak, relying on Atari v. JS&A Group.

The MAI v. Peak (1993) decision interpreted 17 USC 117 (the backup law) as effectively null and void, but a rider to the Digital Millennium Copyright Act of 1998 overturned MAI v. Peak, breaking Law paragraph 8.

The defendant in this case did not own genuine Game Paks, ruling out fair use. If, as in this case, the owner of a genuine Game Pak makes the adaptation, Law paragraph 17 no longer applies.

Without emulation, PC users have no reason to purchase Game Paks. Allowing emulation of an adaptation by the owner of a Game Pak broadens the potential market for Game Paks to cover PC users as well, which eliminates the fair-use-killing adverse effects mentioned in Law paragraph 23.

Federal trademark and unfair competition law require a reasonable likelihood of confusion in the mind of a consumer as to the origin of a product. A user who backs up her own games is not likely to be confused as to where the backups came from. The way the findings of law related to trademarks and unfair competition (Law paragraphs 26-32) are worded requires distribution of the adaptations, which does not apply given these facts.

Conclusion

Dumping a computer program from a Game Pak and emulating it on a different type of computer is not an infringement of the copyright in the program under 17 USC 117, as long as the cartridge owner does not distribute the dump to any third party. (This means you, TheBooBooKitty. Owners of coin-op boards must dump their own ROMs to play them in MAME.) Therefore, emulators and game copiers have a substantial non-infringing use, and any attempt by Nintendo to remove them from the market through legal action is frivolous barratry.

Nothing you read on Everything2.com is legal advice. Under no circumstances and under no legal theory shall the author be liable for damages resulting from the use of or from the inability to use this article. If you intend to use the information in this article commercially, please have an attorney verify its accuracy.

Copyright © 2003 Damian Yerrick. Verbatim copying and redistribution of this article, in whole or in part, is permitted.

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