The developers of emulators, both companies and individuals, and the users of those emulators have presented a number of counterarguments to the charges made by the industry. The most common:
Emulation Opponents' Argument: Emulators support piracy.
Emulation Proponents' Rebuttal: Emulators may support piracy, as the industry has alleged, but this fact alone is insufficient to justify their being banned.
Emulators can be used for ends other than piracy, just as photocopiers can be used for ends other than copyright infringement. And just as the fact that photocopiers can be used for copyright infringement is not enough to warrant banning them, so the fact that emulators can be used for piracy is not sufficient to warrant their being deemed illegal.
Argument: Emulators make software piracy possible by circumventing anti-piracy countermeasures on video game systems.
Rebuttal: Emulators like the Connectix VGS do not software piracy possible by circumventing anti-piracy countermeasures on video game systems, as the industry has alleged.
While Version 1.0 of the VGS may not have contained support for the PlayStation's anti-piracy chip, Connectix reports that this omission has been fixed on Version 1.1 and upwards of the emulator. If anything, the VGS and other such emulators actually hinder piracy, because it is much harder to circumvent the anti-piracy measures on software emulators than on an actual PlayStation (all one has to do to disable the PlayStation's anti-piracy circuitry is open up the system and install a widely-available $4 "mod chip").
Argument: Emulators that utilize a ROM BIOS that is copyrighted or patented are illegal.
Rebuttal: Not all emulators illegally utilize a copyrighted ROM BIOS.
Emulators may be illegal if they utilize a verbatim copy of a copyrighted BIOS, but not all emulators do this. In many emulators that require a copyrighted BIOS, the developers have reimplemented the BIOS from scratch instead of copying the BIOS verbatim (we cover this in more detail later. If the developers rewrite the BIOS "in their own words," so to speak, they are not committing an illegal act.
Argument: Emulating proprietary hardware is illegal.
Rebuttal: Emulating proprietary hardware is not illegal, as the industry has alleged.
While some emulators may emulate proprietary hardware, this in itself is not illegal because the workings of the hardware is often public knowledge. For example, while the Nintendo 64 contains proprietary hardware, it uses a MIPS 4300 chip as its CPU. The MIPS 4300 is a well-documented processor, with detailed documentation available on the Internet; most Nintendo 64 emulators that emulate the MIPS 4300 are built around this public documentation. Writing an emulator that relies on publicly-available information is clearly not illegal, even if that emulator emulates proprietary hardware.
In the case that the workings of a system is not public knowledge, it may still be possible to reverse engineer to gain a knowledge of how it works. Zophar's Domain, a popular emulation website, states that reverse engineering is how a number of emulators were written. This practice is both ethically and legally acceptable; the Supreme Court called it "fair and honest." In short: writing an emulator based on the results of reverse engineering, even if that emulator emulates proprietary hardware, is not illegal.
Argument: Emulation may lead to the death of hardware development.
Rebuttal: Emulation won't lead to the death of hardware development.
The speed with which emulators can execute one platform's instructions on another platform is "roughly between five and 20 times slower" than the speed with which instructions would be executed if they were run on the native platform, claims Cloanto, a commercial emulator company. This immense performance hit means that emulators will never displace real hardware development: hardware will always be developed because it is so much faster to run programs on actual hardware than on a software emulator that emulates that hardware.
Rebuttal: Emulators in fact help the manufacturers of the systems being emulated.
The industry has argued that emulators lead to reduced sales of the systems being emulated; in some cases, this may end up benefiting the industry. For example, Time has reported that Sony loses money on every PlayStation it sells. If this is true, and if the industry's allegation that emulators cut into system sales is true, then sales of emulators like the Connectix VGS end up saving companies like Sony money by reducing the loss that comes with the sale of every system.
Another argument (one that the PlayStation Users Group, an informal organization that supports Connectix, has advanced) is that by selling their systems at a loss, companies like Sony realize that the real money to be made in the industry comes from software sales. Again, some emulators benefit the industry here by increasing the installed user base of a system (and, consequently, by increasing the number of potential customers for the software of that system). Emulators like the VGS also increase the market for potential accessories: for example, the existence of the VGS has led one enterprising company to develop a peripheral that permits Sony PlayStation controllers to interface with a Macintosh. This peripheral has led to an increase in sales of PlayStation controllers and similar accessories, yet it would not be on the market if the VGS did not exist.
The VGS and other emulators benefit the consumer without harming the system manufacturers; in the case of the VGS, Connectix has stated, the company's emulator "gives Macintosh owners more games to choose from and PlayStation owners more choice in where they play there games" without directly harming Sony. If this is the case, the PlayStation Users Group concludes, then why is Sony suing a company that is expanding Sony's market while protecting its rights? The statement can be extended to the rest of the industry: why is the industry so wary of emulators that, in some cases, end up benefiting the industry instead of harming it?
The following are not so much arguments that emulators are legal as mitigating factors that should be considered in any final judgement:
The vast majority of emulator developers do not condone software piracy at all.
The general stance of the emulation community is that those who use emulators to run pirated software should be treated with the utmost disdain. One of the developers of the UltraHLE emulators, known as RealityMan, was quoted in Wired.com as saying that UltraHLE users who run pirated ROMs are examples of "lamers, warez scum and other low life" (to be called a "lamer" is an insult in Internet-speak). And the README file for UltraHLE states in block letters that "THE AUTHORS OF ULTRAHLE DO NOT CONDONE THE USE OF ILLEGALLY OBTAINED ROMS."
This anti-piracy stance is not unique to UltraHLE; most emulation websites, and most emulator README files, contain forceful anti-piracy statements and consider it a tragedy that there are individuals who use emulators for illegal purposes and who, in the words of Wired.com, have given "valid forms of emulation a bad name" in the process. Even the few sites that illegally distribute ROMs, like Classic Gaming and Emulation Excitement, claim that, in the words of Emulation Excitement, "to protect the industry, it is a self-applied rule among emulator programmers and webmasters to not emulate/distribute [ROMs of] newer games [that, if pirated, would lead to decreased profits for companies -- as opposed to pirating older games, which no longer generate any revenue for companies]."
The vast majority of emulators are developed not to encourage piracy but for the technical challenge of writing a program to simulate another system.
The fact that so many emulators are freeware implies that their developers wrote the program not for personal profit but for some other reason, typically the sheer technical challenge of writing an emulator. One emulator user quoted in Wired.com suggested that "those who are in it for the technical challenge [of writing an emulator]" make up a major component of the emulation community. And RealityMan, co-author of UltraHLE, has said that he writes "emulators as a hobby," not for any profit that might arise in the process.
NEXT: Emulation Lawsuits
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