Emulation is out there – I know it, you know it; but is it doing more harm than good, or are the argument for emulation really valid?
Chances are if you’re reading this article, at some point in the past, you’ve emulated a game. You’ve used a freely-accessible piece of emulation software to run the ROM file of an older game and probably had a blast doing it. You’ve also – technically – accessed a game illegally.
Andrew Leung, in an article he published for the UCLA Journal of Law and Technology, outlines this:
“It is the use of ROM files for the cartridge-based emulators that have drawn the wrath of console manufacturer Nintendo and the Interactive Digital Software Association (IDSA), the industry trade group. Their argument is essentially that the ROM files directly infringe on the copyrights of the cartridges and the emulators, by encouraging the proliferation of the ROM files, are guilty of contributory infringement and are therefore illegal.”
Basically, you’re playing a ripped version of videogame software that was previously housed on a disc, cartridge or other medium, which was sold for money. Emulators on a PC give you the ability to run these files using similar framework to older consoles.
From a copyright standpoint, videogame companies such as Nintendo have a valid point. We are, when playing a game on an emulator, basically pirating a game. However the distinction between thief and enthusiast isn’t so black-and-white here; emulators have many benefits, particularly in the retro gaming community, where such games may no longer be so freely available.
This is the main counterargument of those who emulate; it gives us access to the games that we may have missed; the ones which are no longer freely available; or the ones which are so overpriced and rare, that you’d probably never get the access to play them anyway.
But where do you draw the line with emulation? Is it, for example, acceptable to emulate a current-gen console and play games which are currently on the market? Why is it acceptable to access an older console’s games (which may still be available digitally on some platforms), but is it piracy to access the library of a console that you can still purchase in retail outlets?
The Ultra HLE Emulator Annoys Nintendo
Back in 1999, something changed in the emulation scene. An emulator known as UltraHLE which emulated the N64 was released, smack bang in the middle of the N64’s life cycle.
Naturally, a wide variety of gamers downloaded the emulator and began to access Nintendo 64 games for free, drawing the ire of Nintendo quickly.
In an article entitle ‘Use of Game Over: Emulation and the Video Game Industry, A White Paper’, the author’s outlined this incident in greater detail:
“Nintendo had realized approximately half of the total US$5.6 billion in software sales for the N64 prior to UltraHLE’s introduction.45 Given that game console sales typically slow in the fourth year of a video game system’s lifecycle due to market saturation and anticipation of the release of a next generation product, there are no data to prove the extent to which UltraHLE cannibalized the N64 market. Regardless, Nintendo deemed the threat significant enough to pursue legal action.46 Following a letter from Nintendo threatening legal action, MegaMan announced it would no longer support UltraHLE or develop emulators.”
Fast forward to 2016 and a quick Google search will give you a plethora of freely-available Nintendo 64 emulators. Another search will give you access to basically every game every released for the Nintendo 64 during its life span.
So in 2016, is it still as bad as it was to access these games as it was in 1999? Gamers, no doubt, would argue no. Many N64 games on the market (many Ebay sellers still have listings for these) are very expensive, sometimes even above the equivalent you may pay for a PS4 or Xbox One game (or sometimes even more, depending on rarity).
Emulation and the Retro Gaming Community
I myself am an extremely active member of the retro gaming community. Every week, I sit down with three of my friends to record a podcast dedicated to the topic. We try to tackle a wide range of games from a wide range of consoles; problem is, getting access to these isn’t easy. Sometimes, emulation is the only course of action available.
Retro gaming is now more popular than it has ever been. A thriving and passionate gaming community is spread out across the web, and most of them probably use emulators to experience those games that they may have missed.
Are these people in the wrong? Should we be locked out of accessing these retro games, purely because they are the intellectual property of those who made and published them (even if they’re no longer freely available)?
Again, there’s two sides to the argument.
The For Emulation Argument
In the same whitepaper referenced earlier, the author’s put together three main points for and against emulation. Firstly, for:
- It promotes nostalgia and backward compatibility
- Provides an enhanced gaming environment
- Does not infringe on intellectual property due to reverse engineering and fair use doctrines
Let’s break this down further, shall we?
In terms of nostalgia, emulation is often the only access most gamers have to their memories. You may have had an older game that you’ve sold, or lost the game through other means. Emulation tickles your nostalgia itch. At the same time, it encourages gamers to play older gamers, further encouraging the use of backward compatibility through newer consoles.
As some newer consoles don’t have backward compatibility and – again – you may have lost your older consoles through selling them for a new one or they could have broken down completely. What do you do if the console is no longer sold as new, and is scarcely available through retail outlets? For example – you may have had a SNES; yes, you can still buy these in specialist shops, but you’re not likely to find them at your local game stores.
Therefore backward compatibility becomes a problem; you may be left with a load of games for an old console, with no way to play them. Thus, you turn to emulation.
Emulation does, in many ways, give gamers the opportunity to play games better than the way they were originally released. Graphic fixes are a common feature of emulators; indeed it’s easily possible to up-res Megadrive, SNES, Nintendo 64 and other games with the right plugins and a powerful enough PC.
This opens up new levels of enjoyment for older gamers, while still allowing newer gamers who are used to shinier graphics the ability to experience older games in a slightly more appealing format.
Fair use is a bit more of a grey area here; yes some elements of the emulation scene may come under fair use, but game companies would likely counteract this by saying that their trademarked properties have been stolen and reproduced in a different medium. However, as emulation is often not-for-profit, those who provide emulation and roms can counteract this by saying they are purely giving access to items under fair use policy.
The ‘Against’ Emulation Argument
The three main points raised against emulation are as follows:
- It represents a huge financial threat
- It compromises the integrity of gaming experiences and brand integrity (trademark dilution)
- It promotes copyright, trademark and trade dress infringement
For the big game companies, emulation is a serious worry. It allows gamers to gain access to their content from the past, without paying a dime for it. In modern times, where digital downloads are commonplace, many game companies now offer their older games on services such as the PSN, Xbox Live or the Nintendo E-Shop.
This is the concern for the game companies; they want to sell you things and the things they have produced are their intellectual property. Emulation damages sales, damages the game companies and forces them to look for new revenue streams.
In terms of game integrity; emulation is probably guilty. Sometimes emulating isn’t the best way to play a game; you may experience bugs and errors you wouldn’t usually and – as a result – may be entirely turned of the game, the series and the trademark.
The final point is probably the most valid, but also the most controversial. Does emulation really promote copyrighting? Again, it all ties into the previous points about fair use, the availability of the games and other assorted factors.
So, What’s the Solution?
The problem with emulation is that technically, neither side of the fence is in the right. A long-standing, never-ending battle between the big game companies the emulation community has arisen and continues even to this day.
However, in the Whitepaper referenced earlier, they produced an interesting diagram.
This is their proposed solution to the emulation problem. In this scenario, game manufacturers and publishers support their older content better than they do currently, even going so far as to offer emulation for their older games themselves.
In 2016, long after this paper was first written, we’re beginning to see this happening. Many game companies now offer backward compatibility to a certain extent; the PS4 has PS Now for PS3 games and emulates some PS2 games; the Xbox One now plays Xbox 360 games and the Wii U still plays Wii games. But what of games older than that? Unless you’ve got a console where the games are available, you’re going to struggle to get them.
It also forces the hand of the game creators; they have to create emulators for every console they release. The PS4 probably could run PS1 to PS3 games, but they’d need an emulator to do it. It would be particularly difficult for PS3 games as they rely on the unique arcitechture of the PS3, which is well known for being highly complex and hard to work with.
So is this solution completely viaible? To a certain extent, I would argue yes. However, I would also argue that emulation gives us the opportunity to experience those games that this solution purely couldn’t support.
In my opinion, emulation is a necessary evil of the gaming industry. I understand where game companies are coming from, but until we can access every single game from history without illegal emulation, I see no other solution for experiencing classic games which may otherwise not be available.
What do you think about emulation? Which side of the fence do you sit on? Let us know your thoughts down in the comments!