copyright (c) 1999 Sam Pettus (aka "the
Scribe"), all rights reserved
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owner, and is reproduced here merely for the sake of reference.
Module Two: The
Part 1 - Establishing the Software Base
OverClocked #34, "There Is Help" © 1999 David Lloyd
Thou shalt not steal.The Eighth Commandment, Exodus 20:15 (KJV)
THE EMULATION WAR
There is a war
raging between the original system vendor community and the emulator development
community. A steady barrage of emulators of all kinds thunders down
upon the original developers. Undaunted, they hold their positions
as the rain falls. Some shots go awry, some only cause minor damage.
A few, though, strike their mark, and these are the ones that their generals
worry about. They zero in on the source of their affliction, and
then respond to their tormentors with an overwhelming barrage of threats,
intimidation, angry emails, and attorneys. They relentlessly pummel
the ones who dared strike so close to them in the hope that it will silence
the offenders. Their hope is in vain. From farther across the
slope, or some way down the valley, another group opens up and lobs a shot
a little closer. The vendor now has two threats to worry about.
They respond in kind, but not as strong as before, since they are having
to now having split their resources between two threats. Yet another
round is lobbed by the emulation community. The harried vendor is
beginning to feel the strain. And so it goes, until the gunfire falls
silent for a time - not because anybody is winning, but because both sides
have ran out of ammunition.
As with any war, there are casualties. Vendors bow to the pressure of increased competition from their more ruthless fellows, as well as the any emulator developers who might be sniping at them from across the ridge line. More often than not, one or more emulator developers take a direct hit or are wounded severely enough to take them out of action for some time. The war in the marketplace is matched by a war of words that is just as fierce, and those who have the courage and the will to speak are often ruthlessly ground down by their implacable foe. It doesn't have to be this way, but that's the way it is. Capitalism is the rule book by which the computer industry plays in the free world, and its maxims are both stern and unforgiving.
There is, however, one group in the equation who tends to be largely ignored, just as they are in the real world. They are the civilians - or in this case, the users. You see them roaming through the stores, greedily eying the fancy displays with the expensive products, and then digging frantically through the bargain bins for that one product that they saw last week but didn't have the money to buy at the time. You see them in the main office or at the cubicle next to yours, ostensibly working on the quarterly report while keeping a muted videogame hidden under that spreadsheet window. You see them in your living room - you and your friends, or possibly your children and their friends, eagerly examining a new piece of computer software or checking out the latest cool videogame for your home console. You also see these masses as they make their presence felt on the Internet just by sheer volume, spinning up the counters at the sites they like to frequent. Users are to the software industry what civilians are to a nation state - they provide the resources and manpower for its economic viability. Without a civilian population, a nation state does not have the necessary labor pool to wage war. Without a user base, an original vendor or emulator developer does not have the necessary support base to continue a given product. They may sit on the sidelines and watch while the war rages on, but users are the key ingredient when it comes to winning the emulation war, and they always find some way to take advantage of the resultant fallout.
The one tool with which users can influence the battle at hand is with their pocketbooks. Users buy the products they support and avoid the ones they don't; however, anytime they can get something for nothing, some will. While a complete discussion of the economics of the computer industry is beyond the scope of this document, suffice it to say that users tend to trend towards cheaper, better products and shy away from pricey, monolithic ones. The recent rise of Linux in an operating system world dominated by Microsoft Windows illustrates this principle. It also stands to reason that if a user can get something for free, many will do just that. That is the prime reason why Internet game sites dedicated towards playable demos, such as Happy Puppy, continue to be extremely popular. It's the old "getting something for nothing" principle in action. You get a useable product, albeit "crippleware," and you pay nothing for it. Beats paying US$10 for the same demo at your neighborhood CompUSA, doesn't it? Do you blame them when a lucky few come across a means of getting full-version software for free? Perhaps you might, but try and look at it from their point of view. Why pay for something when you know a way to get the same product for nothing? After all, they are bills to pay and mouths to feed. Anytime that these folks can cut corners, they will, and to hell with the original vendors.
On the other hand, vendors are looking to maximize profits while minimizing costs. It is to their advantage to force users to pay as much as conceivably possible for their product - that way, profit margins skyrocket and they get the funds they need to both stay in business and maintain research and development into other projects. Nintendo's "inventory management" is an oft-cited example of the ruthless but legal methods that it employs to ensure a constant and sizable chunk of the videogame market. They are not the only guilty party in this regard, but they are the best at the game. Anything that represents a threat to that market share is an enemy to be destroyed, and videogame emulation represents a clear and present danger. They stand to lose money from console sales due to the presence of a working emulator, and they stand to lose royalties from bootleg software manufactured and distributed to support that emulator.
If you as a user plan to use an emulator on your computer, then you will need software to use with that emulator. That point is an obvious one; however, it is one that is either glossed over by the emulator authors or overemphasized by the original vendors and their allies. The time has come to deal with the issues regarding emulation support, and the issue of software availability is the biggest one of all. Before we get into the details, however, we need to deal with the concept of software piracy, take a brief look at how intellectual property laws protect against it, and then come to grips with what is perhaps the most common justification for it - the concept of fair use.
THE ECONOMICS OF SOFTWARE PIRACY
piracy can be defined as the unauthorized duplication, modification,
or distribution of any computer program in direct violation of copyright
law. As long as there is software, there will always be software
piracy. This is a given within the industry, which is why organizations
such as the Software Industry Information Association (or SIIA; formerly
the Software Publishing Association, or SPA) and the Interactive Digital
Software Association (IDSA) were formed. While the industry admits
that the impact of software piracy as a whole is negligible, nevertheless
specific cases of software piracy can have a profound impact on its manufacturers.
The IDSA notes that as of 1999 it took as much as US$1.5 million to develop
a commercial program; also, that in 1998 the entertainment industry lost
over US$3 billion to software piracy. The potential economic impact
of software piracy on a given piece of computer software is therefore quite
Examples of software piracy abound in the general computer industry, where bootleg copies of computer games and applications software have run rampant for many years. Indeed, industry experts estimated back in 1984 that a full one-half of the then-existing software base for computer-based systems had already been pirated. Why is this practice so widespread? Many explanations have been offered, but I will stick to the simple one - it's the old "something for nothing" principle we discussed earlier. What kind of effect can it have on the software industry? Meheroo Jussawalla and Hajime Oniki, in "Changing Technologies and Intellectual Property: The Economic Perspective" present what I shall call the vicious cycle of copying:
and now the cycle begins....
- a vendor spends a considerable amount of time and resources in developing a new and original piece of computer software for eventual release
- a bootleg version of that software is also developed, based on or duplicated directly from the original, without the approval of the vendor
- the original is released to market by its vendor with the highest possible price, given the buying power of its intended customer base along with the twin threats of possible competition and software piracy, to ensure maximum profit at minimum cost in the shortest amount of time
- the bootleg is also released to market - this could be before, at the same time, or after the original, depending upon the perceived popularity of the title and/or the availability of a master copy for pirating purposes
CycleThe only major difference between my expanded model and the simpler one is that my perception has been that prices for computer software fall over time, rather than increase. Regardless of which model you prefer, the only real out from the vendor's perspective is to change their marketing strategy (new advertising and/or change in price) in order to sell more originals, thereby hoping to offset the twin impacts of reduced revenue and unlicensed duplication. While this will not stop software piracy, it does help limit its impact. This solution is not an ideal one, though, because vendors can do this for only so long until it is no longer worth their while to maintain the marketability of the software in question. It is often quicker and more economical for vendors to prosecute software piracy, and that is exactly what most chose to do.
profits for sales of the original do not meet projected expectations due to widespread availability of the bootleg the vendor is forced to maintain the price of the original for a longer period of time than intended in an effort recapture lost revenue the resultant artificially induced maintenance of the current price increases the popularity of the lower-cost (or no-cost) bootleg, resulting in its further distribution the vendor is forced to either adopt new advertising techniques or lower the retail price for the original, thereby reducing net profit more originals are sold at a reduced profit the change in marketing stance by the vendor creates the perception that it is losing interest in the original, thus further increasing the general acceptance of the bootleg the cycle repeats ad infinitum until the vendor is forced to either sell off the title to a third party or cease its manufacture altogether, and it may never realize the full extent of its projected net profit
AN UNWANTED ASSOCIATION
and the IDSA are fond of saying that emulation promotes software piracy,
but in truth they have it backwards.
Software piracy promotes emulation,
not vice versa. It is an unfortunate result of its evolution
that the emulation industry is so closely associated with software piracy,
especially with regards to the videogame industry, because this is a case
where the egg came before the chicken. For example, software pirates
were dumping console videogame cartridges and coin-op arcade games long
before emulators for these products even existed. Zoop, the webmaster
of EmuCamp and author of the popular
MEKA Sega Master System
emulator, notes that the bulk of the dumps that he worked with during MEKA's
development were actually made almost a decade ago by the Image group of
computer hackers operating out of Helsinki, Finland. The Orient is
an oft-quoted example of the stereotypical software pirate's den; most
of the Asian SNES cart dumps that first appeared on the scene originated
with Chinese and Taiwanese bootleg game cart companies. At the same
time, software pirates and private users alike amassed vast collections
of bootleg computer software during the lifetime of the systems in question.
Those of us who were on the Commodore and Amiga scene remember "warez"
groups like EagleSoft Incorporated, FBR (F--ked Beyond Repair), Fairlight,
2001 Crew, Quartex, and so on. I'm sure there were plenty others
for other systems, and I invite you to dig through the memory banks of
your local "old-timer" hackers for even more examples. As these older
computer systems were discontinued or became obsolete, these software libraries
were rendered useless with the passage of time. A lot of people jettisoned
theirs and moved on to other systems, but some did not or accepted what
others were giving away. The practice has never stopped - today's
generation of software pirates are busily duping and dumping away newer
forms of computer software, along with arcade and console videogames. Couple
those old software collections with today's base of "warez," and you have
a massive ready-to-use software archive for just about any emulation project
you care to take on. How do you get this software to work on
your particular system when the technology for which it was designed is
dead and gone, or simply tempting? Write an emulator, of course.
This brings us to the current state of affairs so excellently shown by the standoff between Nintendo and the N64 freeware emulator developers, or Sony and the commercial PSX emulator developers. Just as with the computer industry as a whole, the pace of emulation is no longer hobbled by limited resources. It is now possible to write an emulator for a system that is still economically viable given today's rapid advances in computer technology. This happened first with PSEmu and the Sony PlayStation, and most recently with UltraHLE and the Nintendo 64. The computer industry started going through this same situation almost a decade ago, and it can be argued that the same ramifications apply. The average user is not concerned with all of these head games, however. They just want a product that will let them use the software they want to run on the system with which they feel the most comfortable, and many have no qualms as to how and from where they get an emulator and the software to support it. I have yet to see a user that has any real objections to playing Sega Genesis games on a personal computer once they realize that such a feat is possible. I have yet to see Unixoids object to running Amiga software on their systems once it dawns on them that they can. Going back to the Apple world for a moment, SoftWindows continues to be a strong niche product for the Macintosh, and there's little that either Microsoft or Apple can or will do about it.
There are four basic ways in which computer software can be protected from intellectual property infringement. One of these will be new to our discussion, while the other three will sound awfully familiar. Each protects the software in different ways, and different means are used to enforce them. The four shields of software protection (as I term them) are the end user license agreement, the software patent, the copyright, and the corporate trademark.
THE END USER LICENSE AGREEMENT
The end user
license agreement, or EULA (pronounced "yew-lah") for short,
is a form of legal contract that defines the rights granted by the authors
or vendors of a computer program to a user of that program. It takes
various forms and can be presented in various ways. For example,
one might find a EULA on the package (known as "box-top license" in legal
circles), within the user manual, as a separate document inside the package,
or as an on-screen display during the setup or bootstrap processes for
the program in question. It is usually presented in such a fashion
that you have to take notice of it before you use the program in question.
Whether or not you actually read it is entirely up to you, but it never
hurts and is often to your advantage.
A EULA spells out in exact legal terms what the vendor says you can or cannot do with that copy of the program covered that is in your possession. The language is precise because of its contract nature, and there is a set format and predefined phrases that a EULA must use in order to be legally valid. This is because of the danger presented by certain overzealous vendors, who try to use their EULA to impose restrictions on the user that are unnecessary and/or prohibitive. In these cases, when the terms of a EULA are deemed to be overreaching, then the broader bounds of federal law override the terms of the EULA. Since a EULA is, in a sense, a one-sided contract, in which the user has no say as to the terms that it includes, then federal law dictates both the form and the limits that a EULA can take. It used to be the vendor's responsibility to ensure that the terms of a EULA were not overreaching; however, this is no longer the case.
There has been a recent retreat of sorts with regards to the federal government's ability to override the terms of a EULA; however in the now infamous Ziedenberg case (ProCD v. Ziedenberg, 1996), many legal protections with regards to software EULAs were restored. I will not go into the details of the case, as they are publicly available for anybody who wants to look them up. Suffice it to say that the federal government has once again recognized the protective need for EULAs and allowed the pendulum to swing back the other way. The U.S. Court of Appeals ruled that EULAs are considered valid contracts under sections 2-204 and 2-606 of the Uniform Commercial Code (UCC). This is one reason why all EULAs since then have had specific wording straight along UCC and industry guidelines regarding rights and privileges that a user may be granted with regards to the purchase (or obtaining) and subsequent use of a copyrighted piece of computer software. This language is worded in such a manner as to recognize any and all rights that a user may have under the U.S. Copyright Act or any others that the vendor deigns to grant them, and rarely do they grant any leeway beyond those rights. A EULA's terms are not considered overreaching once the user accepts any product that the EULA covers, aside from certain clear-cut exceptions spelled out in federal statutory and case law. There still remains considerable debate in legal circles about the implications of the Ziedenberg case, and there are several excellent works on the subject that you can find on the Internet through the use of your favorite search engine.
THE SOFTWARE PATENT
The issue of software patents software will not be dealt with in this document, since they are at present used mainly to protect highly specialized pieces of code that generate unique processes. The average piece of computer software or your run-of-the-mill videogame does not usually qualify for software patent protection because of the lack of such processes; however, this may change as patent laws are rewritten to provide extended protection to software owners and vendors whose products are in danger of being pirated. Suffice it to say, based on our earlier discussion of intellectual property law, that patent protect represents the greatest form of intellectual property protection available to computer software, provided that it qualifies for such. Those wishing to pursue this topic should consult those portions of patent law that deal with the new protections afforded to qualifying computer software (see Diamond v. Diehr, 1981 and Stac v. Microsoft, 1995).
THE SOFTWARE COPYRIGHT
Anybody who has
had any dealings with a computer-based system knows the value of making
a backup of your computer programs. These for the most part take
the form of software, of diverse media and formats, which can and is in
most cases fairly easy to duplicate. Backing up computer software
is a practice is universally recognized and accepted by all parties concerned,
and the principle is also incorporated into federal copyright law. Computer
software, regardless of media or format, is protected by copyright law.
It embodies ideas and concepts, and as such qualifies as a form of expression
and is therefore eligible for intellectual property protection. 17
USC 117 is an oft-quoted passage of United States law with regards to the
duplication and/or distribution of computer software, and I reproduce it
here for convenience.
The form of 17 USC 117 that I give is the current one as amended by the Digital Millenium Copyright Act (DMCA) of 1998. Here is how it reads, following the directions of that part of the DMCA known as the Online Copyright Infringement Liability Limitation Act (Title III, Computer Maintenance or Repair Copyright Exemption):
a) Making of additional copy or adaptation by owner of copyThe reason behind the changes and expansion to 17 USC 117 is to address the issues raised by the MAI v. Peak court case of 1993, in which the courts effectively ruled that merely booting up a computer created derivative copies of any software contained within its storage systems that were subsequently copied to system memory. These changes allow those who service computers to work on them and with any of the system's software as necessary without infringing vendor copyrights.Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:b) Lease, sale, or other transfer of additional copy or adaptation
that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.c) Machine maintenance or repairNotwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes of maintenance and repair of that machine, if--d) Definitions. such new copy is used in no other manner and is destroyed immediately after maintenance or repair is completed. with respect to any computer program or part thereof that is not necessary for the machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine.For purposes of this section-- the "maintenance" of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine. the "repair" of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.
THE CORPORATE TRADEMARK
Any piece of
computer software that contains a trademark or generates a trademark on
its host system is further protected under the Landham Act, which governs
the illegal usage and duplication of trademarks. The key parts
of the Landham Act most often quoted to combat software piracy in this
regard are 15 USC 1114-1116, which deals with the concept of trademark
If you will recall from our earlier discussions, trademarks are a form of intellectual property protection. Their primary purpose is to protect the "image" of a product or business. They can take any number of forms, ranging from specialized words to custom graphics, so long as the trademark in question is undeniably unique. Once a trademark is registered, then its owner can do anything it wants with it. Use of a registered trademark is denied to everybody but the owner, except in cases of fair use when use of the trademark cannot be avoided. This is what the Landham Act means by innocent infringer - for example, if you are writing a news article on the Sony PlayStation and need to show a picture of the PSX logo, then you can provided you acknowledge the logo belongs to Sony. That's why you see the "circle R" or the letters TM after a trademarked word or graphic, or see a notice of trademark ("X and Y are trademarks of Z corporation" is a common form).
It is up to the owner to prove trademark infringement; likewise, it is up to the owner to maintain rights to that trademarks or it will be allowed to pass back into the public domain. For example, almost everyone in the videogame industry agrees that Nintendo tends to be overly protective of its trademarks, but they would rather be overly protective that have them subject to charges of abandonment. Can you imagine what their first top-selling game for the Nintendo 64 would have been like if the character of Mario was not trademarked? Super Luigi 64? Super Peach 64? Super Bowser 64? Somehow, it just wouldn't be the same.
Case law has determined that trademarks contained within a piece of computer code are not protected under the law; however, any trademark that the code might generate on its own or cause to be generated upon the display of a system on which it is running are protected (Playboy v. Frena, 1993). There are two forms that trademark infringement can take with regards to computer software: unauthorized display of a trademark, and unauthorized alteration and/or duplication of a trademark. There are many pieces of software that do either one or the other, or both.
The reason why Accolade eventually settled with Sega in their unlicensed software dispute (Sega v. Accolade, 1992) was that Accolade's unlicensed games clearly activated Sega's TradeMark Security System (TMSS), causing a TMSS display to be generated on a Genesis/MegaDrive display whenever one of Accolade's licensed games booted up on later model consoles. Accolade was forced to concede the point and retool their products in such a manner as to avoid tripping the TMSS; otherwise, they would have been in direct violation of trademark law. This is why many Accolade titles for the Genesis/MegaDrive will start with an Accolade logo instead of the TMSS display. While this may seem like a small matter to a user, trademark infringement is often one of the most overlooked issues with regards to emulator development and support, and one that will catch a developer every time unless they are careful. Remember, it is lawful to display an unmodified trademark contained within a program running under emulation (Sega v. Accolade, 1992); however, the emulator itself may neither generate a trademark from the original console's internal code of its own volition nor alter any trademarks contained in any programs that it runs. For example, it should be noted that every single Sega console emulator to date does not generate a TMSS display, whereas they pass through without modification any displays contained within the programs that they run. Why? Because the emulator authors have wisely chosen not to include the TMSS as part of their emulation. It is an unnecessary function to proper emulation of the console, therefore it would be an infringing act to include TMSS emulation. That is the same reason why developers of some of the newer Nintendo console emulators are going to such pains to avoid displaying the Nintendo logo that is generated by the console itself whenever a game is booted. Such would be a prosecutable infringement of a Nintendo trademark (in this case, the Nintendo logo).
So does that mean that you can patch a copy of a piece of computer software in order to prevent a trademark from being displayed? Absolutely not. Remember, trademarks that appear within the body of the actual program code are not protected by trademark law, but any trademark that is generated on a system display by whatever means for whatever purpose is protected (Playboy v. Frena, 1993). It would be illegal for somebody to develop a patch for a piece of computer software that would alter any displayed trademark in any fashion. Your only option is to talk the emulator developer into finding a way not to display the trademark, but even that might be successfully challenged in court, since the trademark was intended to be displayed in the first place. This is one of the many reasons why certain types of software patches for commercial software titles are illegal - they patch a character or object in the game which is trademarked. Need an example? How about all of those hack patches for the various Mario "ROMs" that do all sorts of things to him - change size, mutations, new look, or even replace him with a new set of graphics? Every one of those unauthorized patches violates Nintendo's trademark on the Mario character, and their history is to prosecute any and all such cases of trademark infringement. This might give pause to anybody wanting to hack their favorite Mario "ROM."
THE NOTION OF FAIR USE
There is one facet
of intellectual property law that deserves mention at this point.
It can be used to both defend intellectual property rights or to void them
- most commonly the latter. It is a concept that has been bandied
about so much as a defense by the emulation community that I often wonder
if some of them really know what it means. "So what?" you hear them
say. "None of these legalisms matter. I don't care about all
that. I'm not hurting anybody. I'm just exercising my fair
use rights. Fair use protects anything I might want to or could
do with MY software." Does it? Just what exactly is this notion
of fair use? Before you can justify a claim of fair use, you need
to understand how the law defines this particular concept, and exactly
how that applies to you as the owner of a piece of computer software regardless
of its origins.
I should note at this time that the concept of fair use also covers trademarks to a certain extent, but I shall deal specifically for now with copyrights. The fair use claims for copyrighted material tend to be the more prevalent and onerous with regards to computer software. I shall deal with the fair use of trademarks in a later discussion.
The concept of fair use was created over time as the courts realized that there are certain cases where limited reproduction of a copyrighted work often has greater social value than absolute ironclad control by the copyright owner. This is true in such areas as the advancement of the arts and sciences (artwork "prints," scientific collaboration on projects), news reporting (journalistic privilege), criticism (the use of quotations), and "other endeavors of educational or social usefulness" such as teaching, scholarship, and research. The fair use clause first made its its appearance in the 1978 revision of the U.S. Copyright Act, and the current form (17 USC 107) reads as follows:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include --
- the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
- the nature of a copyrighted work.
- the amount and substantiality of the portion(s) used in relation to the copyrighted work as a whole.
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.What this means is that the concept of fair use can be applied to anything that is copyrighted, including unreleased works - since they are protected by implied copyright. In the case of the emulation community and the computer software industry, the principle of fair use also covers unreleased games, alpha and beta copies, prototype games, and playable demos (Franklin v. Franklin, 1971).
"If I depended on this work to feed my family and pay my taxes, [then] would I feel like I ought to be paid for [the] use that I propose to make of this work?" If the answer to that question is "yes," then you may question whether [or not] your use is fair.Fair use concerns are strictly limited to matters of the public interest. That is why reporters and journalists are allowed to employ questionable sources and use questionable materials in their reporting; both the law and the courts have recognized the need, if not necessarily the desirability, of "journalistic privilege." Remember this the next time you read one of those sleazy London tabloids or flip the TV over to the Drudge Report on Fox News. One might argue that the wanton duplication of commercial computer software serves the public interest, but that is not quite true - it only serves the interest of that portion of the public who is willing to obtain those products without paying for them. This does not comprise the majority of software users, as most industry experts will readily agree. The courts have ruled time and again that you have to own an authorized copy of the software in question before you can claim the privilege of fair use to excuse any action beyond that permitted by a EULA or copyright law. Therefore, software piracy cannot and does not qualify for fair use regardless of how the argument is presented.
Let's see how each of the four points of the fair use test apply to someone who is making more than one copy of a piece of computer software with intent to distribute. This automatically puts such action in the realm of commercial use (Sony v. Universal, 1984). This could be the kid down the street duping copies of his favorite videogames for his friends, or the team of software pirates running cart dumpers 'round the clock, or an Internet site where "ROMz" and other such "warez" are posted for download by any and all who just happen to drop by and find them. I will reserve discussion of the "safe harbor" exception until such time as we deal with Internet related issues.
The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
The first portion of the fair use test is considered to be the most important with regards to the public interest. The case most frequently cited as setting the precedent is Williams and Wilkins v. United States, 1973 (aka "the National Library of Medicine" case). In this case, the purpose and character of use is to provide a copy of a commercial piece of software to someone who never intended to pay for the original. This can in no way be construed as being for "educational purposes." This is a clear-cut case of copyright infringement both on the part of the distributor and the recipient. The distributor must have a license of some kind from the copyright holder to distribute multiple copies of that software regardless of intent (AGU v. Texaco, 1994). In addition, the recipient is bound by copyright law only to use those copies of software that were legally obtained (Nintendo v. Atari, 1992). As such, this situation qualifies as a unquestionable and deliberate violation of copyright law. The failure of this point becomes even more obvious if some kind of financial transaction is involved for the copy itself. Many software pirates charge for their "warez," and this represents a blatant violation of federal copyright law (17 USC 106).
The nature of a copyrighted work.
The second portion of the fair use test is considered to be the most important with regards to the original intent of the author. Computer software is eligible for copyright because it is a work of expression (Harper & Row v. Nation Enterprises, 1985). In particular, videogames are afforded copyright protection because they are escapist fare and are considered by the courts in the same light as other escapist fare such as books, magazines, and movies (Playboy v. Frena, 1993). Since escapist fare by definition is protected by law from duplication, then duplication of any commercial videogame is a clear violation of copyright law. To broaden the scope again, any duplication of a work of expression without proper license is also a violation of copyright law, and making multiple copies of a piece of computer software qualifies as such a violation.
The amount and substantiality of the portion(s) used in relation to the copyrighted work as a whole.
The third portion of the fair use test is the most important when considering the question of derivative works or inclusions within compilations and collections. Copyright law grants you a limited license to make one and one copy of a piece of legitimately obtained software for archival purposes. If you want to make more than one copy, then you have to get a license for multiple copies from the copyright holder. Wanton duplication of a piece of computer software involves the entire piece of software, and as such cannot conceivably qualify as any kind of limited "amount" or "substantial portion." As such, it represents a clear violation of copyright law (AGU v. Texaco, 1994).
The effect of the use upon the potential market for or value of the copyrighted work.
This last portion of the fair use test is considered by legal experts to be the most important one of all (Nimmer on Copyright), and has been used to defeat many a contention of fair use. We briefly touched upon this back in our discussion regarding the legality of creating and then releasing an independently developed software-based emulator. Hardware cannot be copyrighted, but software can be and frequently is copyrighted. The presence of multiple copies of a program for which the owner did not pay diminishes the revenue that the copyright holder would receive. As such, unlicensed duplication represents a viable threat to the potential market for such a product, and could also force the owner to change the price in order to increase sales and thereby make up for the loss in potential revenue. (Harper & Row v. Nation Enterprises, 1985; Lotus v. Borland, 1990; Playboy v. Frena, 1993). Thus, unlicensed duplication of computer software is not justified by the fair use exception.So does making multiple unauthorized copies of a piece of computer software for any Tom, Dick, or Harry who wants one qualify as fair use? No, it does not. It fails the fair use test on every single point. Unlicensed duplication of copyrighted computer software for commercial purposes is no more protected by fair use than someone who chooses to photocopy an entire book at the local print shop instead of paying for it (Atari v. JS&A Group, 1983). Remember this the next time you hear someone loudly proclaiming fair use on their "ROM"-laden Internet emulation site.
So what does all of this mean? It means that the only kind of computer software that you can use with an emulator is that which is legitimate in nature - just as if you were using it with the actual system. This means using either the originals or some other version of that software either permitted under the strict limitations of federal law or specifically authorized by the copyright owners involved. You have the right to archive that software, so long as you produce one and only one unadulterated copy unless otherwise approved by the copyright holder or permitted within the constraints of federal law. You do have a limited right to alter or modify the program so that it will function in exactly the same fashion and generate the same on-screen displays as the original, provided you own the original beforehand and such modifications do not excessively infringe upon the rights of the copyright owner or trademark holder. Given all of this, it is perfectly legal for you to build and maintain a software base for use with your emulator.
1. Who are the three parties involved in the "emulation war?" What roles do they play? How can each affect the outcome?
2. What two broad principles of vendor-user economics are briefly mentioned? Give examples of these principles in action. Do you believe these to be valid? Why or why not?
3. Why is the emulation community so inexorably linked to the bootleg software community? Why would this concern an original system vendor or licensed developer? How would this affect an unscrupulous user?
4. What is software piracy?
5. How does the law determine a legitimate claim of software piracy?
6. What organizations exist within the computer industry to battle software piracy?
7. How does software piracy impact the market for computer software? Describe the simple "vicious cycle" model of copying. Do you agree with the contention that it is unrealistic? Why?
8. Who will the copyright owner be more likely to prosecute with regards to software piracy, the distributor or the recipient? Why?
9. What are you buying when you obtain a piece of commercial software? What stipulates the terms by which your purchase is governed?
10. When can federal law override a vendor's desire for intellectual property exclusivity?
11. To what rights is the copyright owner entitled regarding a piece of commercial computer software? In what ways could the owner use these rights to prosecute someone infringing on the copyright?
12. To what rights is the user entitled regarding a piece of commercial computer software? Explain how these rights are justified by federal statute and/or case law.
13. How does trademark infringement become involved in software piracy disputes? Describe the two key areas that may be involved in such a dispute.
14. What is the origin of the concept of fair use? What two tenets govern the fair use of computer software?
15. What is the sole exception one can claim to abuse of the fair use principle? What are the hurdles one must overcome to make such a claim?
16. What are the four parts to the fair use test?
17. As far as the public interest is concerned, which is the most important part of the fair use test? Why?
18. As far as the copyright holder is concerned, which is the most important part of the fair use test? Why?
19. Give an example of how you would use the fair use test with regards to a specific situation concerning computer software. Do not use the example cited in the text; instead, come up with one of your own. Be sure to justify your claims.
20. Describe some real world attitudes and practices with regards to software piracy, the legality of these beliefs, and whether or not these could be successfully prosecuted.
THOUGHTS TO PONDER
1. If you knew somebody that was violating the copyright on a piece of computer software, no matter how small the violation, would you do something about it? Should you do something about it? Why or why not?
2. If you were an emulator developer or software author, how would you devise a means of bypassing any code that might trigger or alter a trademark display? Would your method(s) be considered legal? Why or why not?
3. Assuming that you cannot get access to the original system's software base, what kinds of software are legal to use with an emulator?
4. Can you pirate an emulator?