Since the subject has come up on the show and in comments here on the blog, I thought I’d type up my manifesto on the current state of emulation in the hopes it would generate some discussion around the topic.
Clearing up some misconceptions
Many folks think that use of emulators is legal if you only download ROMs you own. Guess what? It’s not. Also prevalent is the viewpoint that emulators themselves are legal; it’s only the ROMs that are illegal. In a few cases, that’s true, but in most, the emulator code was reverse-engineered from copyrighted code, making those emulators illegal (for classic computing afficionados, it’s the Franklin Ace vs Apple ][ court case). If you have compiled your own system bios and code that will run a program from scratch, and physically dump the data from a cartridge or disk you own to play on said setup, that is legal. In all other cases, it’s illegal, full stop.
Legal vs. Ethical
Now, it’s important to draw the distinction between an activity that is legally wrong vs. ethically wrong. Ask yourself: why do copyright laws exist? They exist so the creator of the game and the people associated with bringing the game to market can be financially rewarded for their work. Of course, this is as it should be. But what if those games no longer exist in a form in which the creator and publisher receive any of the money from a purchase? Why is it then wrong for someone to acquire a game for free?
This series of questions represents my viewpoint on emulation. Thanks to the incredibly hard work of people much smarter than I am, we are able to enjoy a library of games no longer commercially available at no cost. Emulation does not harm these programmers; rather, they breathe new life into games that otherwise would have been forever forgotten. In some cases, only ROM (or the system equivalent) files now exist of titles because all existing physical copies have been lost. This is especially true in the arcade world.
There’s no question that emulation can be illegal and unethical. If you are emulating titles that are commercially available, you are taking money out of the hands of the creators, and thus inhibiting their ability to produce new works. One could also make the argument that purchasing used games also hurts the content creator, because he or she receives as much money from a used copy as an emulated copy. In fact you might say that purchasing used games is legal but unethical. Before this internet, this was somewhat regulated by supply and demand; there were a finite number of used copies of a game, so sooner or later, new games would need to be purchased. In the digital world, this is no longer the case.
Boat’s pipe dream:
What the retro games industry needs is a singular vehicle to promote its back catalog of games. If publishers that owned the rights could align behind a single vendor and keep the price point in the “impulse” range, they would make much more than they’re currently making on the majority of the titles out there. The model for this is iTunes. Nobody was buying songs at $3.99 apiece, but for a buck a piece, the industry made millions. That same volume-pricing is at work today in the App Store. What we need is a Steve Jobs–someone with money, power, and influence that can get all of the major (and minor) players under one roof to negotiate a deal. I can see a platform similar to Steam with emulators built in, ready to launch any game for any system. Publishers and creators would benefit by being paid for their work. Players would benefit by not having to go to shady emulation sites to get ROMs (another comparison to MP3s). Plus, players would feel good about buying, knowing they are supporting the programmers that brought these games to them, many of whom didn’t exactly get rich when they sold their games the first time around due to piracy.
If companies are serious about stopping illegal emulation, giving players the option to play on the PC is essential. A cloud-based account system would allow players to keep their games with them whenever they move machines, just like Steam. Publishers could charge a little extra if they added extra features, such as leaderboards and online play.
Why hasn’t this happened already? The answer is simple: big game companies, by and large, are more interested in selling their current offerings than their back catalog. Besides the exceptions of the big players like Nintendo, Sega, Atari, and Activision, there is not enough interest in the market for these companies to review their contracts with small programmers and start the process of paying them again. So the question is, if the companies don’t care enough to sell their old games, should you care that you’re downloading them?