This journal article is a profile of the Modifying or “Mod” Community who use existing video game engines as the framework to create video games of their own. It focuses on Mario Orsini who with his team of 15 is developing a Mod called “Orbit Wars.”

It becomes germane to the subject of Video Game Copyright issues because the Mod Community itself is a bit of an oddity in the context of a Video Game Industry laden with myriads of complex copyright and patent laws. When a video game is created, it is programmed in two fundamental parts, the engine, which is the part that defines the physics of the gameplay itself, and then there is what the author refers to as the “aesthetic package” which defines the look and theme of the characters and visual effects. Modders take the engine from an existing game and create an aesthetic package of their own. In essence, they create a derivative work, the kind in which one conventionally thinking, might believe to be under fire from waves of lawsuits. As this article demonstrates, not only is that premise not true, but the situation is quite the opposite. Several examples are cited which illustrate the encouragement of the modded video games. It becomes clear that the Mod Community is looked upon by the industry as a way to seek new talent and embrace innovation.

The aim of the article seems to be in its illustration of benefits the Mod Community provides for both Modder and Game Maker. It does this by alluding to situations such as Id Software’s “Quake” line, which was the first game to include a set of developer’s tools with the game. They also cited the popular Mod “Counterstrike” which was a created with the engine of a game called “Half-Life.” Counterstrike’s popularity grew so much among the online Mod Community, that Sierra Entertainment, who published the original Half-Life, picked it up and sold it commercially. It would go on to sell “at least 1 million units.” These are effective and well-known examples that support the argument. Ultimately, it may be a way to show the Mod Community as a shinning example of the ideal relationship that could exist between Game Maker and Consumer. The context of this relationship entails one of mutual respect where the creative aspect of the game comes from both ends. It also demonstrates that the knee-jerk reaction to protect the content of the software can often end up hurting the product because it shuts it off from the community of people that support it through sales and allegiance.

Argued before the 9^th Circuit Court in 1992, this case was Nintendo’s attempt to stop Galoob’s production of the “Game Genie.” The device in dispute attached to standard Nintendo cartridges, which allowed users to input various special codes to perform “cheats” and alter the physics in the games they owned. Nintendo argued that the device created unauthorized derivative works, Galoob stood solidly behind the fair use defense.

The arguments presented some interesting perspectives on the extent of exactly what constitutes a derivative work, and also how far fair use defenses can go. Nintendo’s arguments imply that Galoob’s device unlawfully authorizes users to use copyrighted works in spite of the fact that it does not violate copyright law. This method of argument however was unfruitful considering that the precedence set by the Sony Corp. of America v. Universal City Studios, Inc. case unambiguously established that simply providing the means to commit a type of infringement does not constitute infringement in itself. What further invalidated the argument was the fact that the Game Genie did not even encourage any infringing activities in that the purchase of a legal copy of the game was required to use it with the device. Of the four factors, which determine fair use, the effect on the potential market was what came into play. Since it did no apparent harm to the potential market, the Court was not receptive.

This distinction is very important to the idea of Video Game Copyright Issues because it give a definitive boundary to what we as consumers are physically allowed to do with software that we purchase. This is a case that goes beyond the arguments of copy protected source codes and piracy. With lawsuits like this, Game Makers attempted to exercise control over the products that they sell beyond the point where ownership has transferred to the consumer regardless of if it affected their market. Did it become an argument about the moral rights of the Game Maker to maintain quality of their own brand? Perhaps such an argument would have held more water. However, if the Game Genie case had gone Nintendo’s way, it may have set precedence for more lawsuits of the same nature which may have further pushed the boundaries of DRM technology for software and hardware. Such actions would not be to the benefit of the consumer, and would have only solidified a monopolistic control on not only sale and distribution, but on the very existence of the software itself.

This is a news item, which discusses a list of four exceptions provided by the Library of Congress, which may be legal ways to circumvent the arm of the DMCA (Digital Millennium Copyright Act) and allow limited impunity to bypass some forms of copy protection. In relation to the theme of Video Game Copyright law, it is perhaps not a hugely relevant list of exceptions, but it does effectively illustrate that there is somewhat of a gray area in the Emulator/ROM issue.

The exceptions themselves include Internet filtering lists, programs protected by a dongle (any type of hardware device which is necessary for activation), programs in obsolete formats, and ebooks, which do not contain accessible features for disabled people. While this type of “legal” circumvention of DRM measures does not create the huge impact for those who wish to see copyright restrictions loosened, it may possibly have rejuvenated the emulator debate among its proponents. The vast majority of the emulators that exist in downloadable formats on many Internet sites are made from older video game consoles that have been long out of production. The ROMs that the emulators run are ripped from games that are likely older than a great portion of those who download them. It is this very argument through which many form the moral justification to download and play these ROMs. Such an idea could even be expanded into one about the promotion of arts and sciences, or the cultural benefit of generations too young to immerse themselves in the classic games.

The article uses the short reach of these exceptions as a way to illustrate the need for more rights to be given. The author makes the point that the Library of Congress has found itself in the unique position of being able to “poke the law” and get the attention of the Government and bring these issues into light. Being from a technology-oriented site, the article is clearly in favor of loosening restrictions. However, it is not so much a call to arms as it is a reporting of the exceptions themselves as they were released. The author’s point of view is apparent and he uses the news to bring up the questions about its possible impact on the emulation debate. There is perhaps no issue that is of more importance to the subject of Video Game Copyright than this. It is through this debate that the future of the industry will transform.

This is a news item that discusses a rumor that had been going around the Internet around fall of 2005. It was regarding a possible DRM (Digital Rights Management) measure for which Sony had acquired a patent. The belief immediately became that this technology would have been incorporated into the upcoming Sony Playstation 3 video game console.

Sony, because of its extensive activity in the courtrooms has garnered somewhat of a reputation for being DRM fanatics. However, when this rumor began to spread, it created an intense wave of negative backlash to Sony and perhaps to the DRM argument itself. The rumor in question was that the Playstation 3 console would have a technology that would leave a type of electronic signature on each new game disc that was placed in the machine. From that point on, the game disc would be playable on that machine and only that machine. The implications of that would have been enormous. People would not be able to loan games to their friends. Rental outlets would not be able to carry Playstation 3 games. If one were in a situation where the console needed to be replaced, that person’s entire library of games would be unplayable. And it would be the complete elimination of the used game market.

Fortunately for consumers, and Sony itself, “rumor” is exactly what it was. Sony recently made it very public that the rumor was not true. Perhaps it was a competitor who started this since interest in the Playstation 3 seemed to drop for a time due to the backlash. However, the patent for the supposed technology itself does indeed exist. It would not exist if there were not a desire by some to incorporate it. It is no secret that Game Makers have been attempting to exercise control of not only the intellectual property aspect of their software, but also its physical format. If the other video game consoles also adopted these measures, you would more than likely see alternatives such as acquisition of the games as downloads through their respective online features. Perhaps such a measure would have been tempting to Game Makers who saw the benefits of phasing out physical copies of their games as a way to cut production costs and maintain tighter control over its distribution. Cases involving the reverse-engineered production of Emulators were ruled as a fair use because the physical extraction of the object code stimulated activity for the public good. To be aware of how easily their work can be infringed (in their eyes anyhow), there is no denying that this is the ideal direction in which the industry would like to lead. It would be their proverbial check against the blows that have been dealt to them in unsuccessful litigation.

This is a short news item about the DMCA (Digital Millennium Copyright Act) backlash against modification or “mod” chips. Any relatively recent console system has embedded unto it, a DRM (Digital Rights Management) chip, which prevents pirated or counterfeit copies to played on the system. A mod chip is essentially a chip designed to replace that DRM chip that will in turn allow the user play out of region copies of games and consequently, counterfeit copies.

This particular item focuses on a Hong Kong-based online software store. The crackdown on the mod chips which the site sells, seem to have been legally strong-armed by joint lawsuit filed by Microsoft, Sony, and Nintendo. The article serves to illustrate how DMCA-like measures are occurring not just in the United States, but also around the world. The author quickly relates the aforementioned lawsuit to the renewed vigor of the Video Game Industry to stem piracy in the aftermath of the DMCA. It also effectively puts into perspective the point of view of the industry, which sells heavily equipped hardware at a loss, which is ideally made up in software sales. The effect of piracy is not a mere nuisance but something that insidiously chips away at the infrastructure of its very business model.

It is the somewhat personalized perspective of this article brings which makes it applicable to the predominant theme of the copyright issues pertaining to video games. While viewed in the context of a research item, it is limited in the amount of information it gives and is more in the area of food for thought. However, it is a piece through which perspective is gained. In this case in the near peril of the site Lik-Sang.com, which at one time was one of the world’s leading distributors of mod chips. Its struggle against the so-called “Goliaths” of video games was one that showed how these measures affected the supposed “pirates” which they had gained the reputation of being. Suddenly, the anonymous pirates and counterfeiters seem more anthropomorphic. The article makes reference to a similar lawsuit brought about by Sony against a retailer in Australia that was ruled in favor of the retailer. This contrast effectively illustrates a primary point in the whole debate in regards to the inability for international law to come to any consensus. International law is very disparate as far as the acceptance of the devices. In light of that, anything that sheds light on the global aspect of the mod chip crackdown is a ripe subject in terms of video game copyright.

This is a journal article, which is a comprehensive look at the Video Game Emulation debate. Its layout is filled with loads of historical facts and analyzes the nuances of the debate in several chapters according to each aspect. In spite of the heavy loaded nature and its plethora of facts and technical data, it does all of this to arrive at a conclusion regarding the suggestions of the authors towards finding an amicable way to solve the legal disputes surrounding copyright infringement.

Its argument is not established early on in the article, but it lays the groundwork for it by setting the debate itself into context. It begins by explaining exactly why there is a need in the first place for the emulators and how the emergence of these have only been magnified by the rise of the Internet and peer-to-peer networking. Then it devotes some chapters to examining the methodology and technical data that brought the emulators about. The economic ramifications are also discussed, at which point the direction moves towards the points of views of both sides of the debate. Several cases are cited examining the potential legality or illegality of the practice. Finally, it arrives at its conclusion, which gives the authors’ strategy for issues.

The argument given is quite adamantly against an RIAA (Recording Industry Association of America) type of attempt at simply eliminating the emulation community through endless litigation and bullying tactics. It also makes the case that Game Makers should embrace emulators by recognizing the consumer need and actually meeting that need themselves instead of persecuting the individuals from the outside who have taken the initiative to do it for them. Moreover, the claim is made that customer loyalty would be recaptured. The support of backwards compatibility among gaming consoles is another major suggestion placating consumer ennui and possibly extending the longevity of the product itself. A plethora of statistics is also given to solidify its points.

So what does all of this have to do with Copyright Law, specifically related Video Games? Much of it does, and much of it is technical data and statistics that is, perhaps inconsequential to the legal debate itself. Ultimately, the article serves as a well-researched cornucopia of information about the subject. The overarching theme of this is how legality is either upheld or circumvented in the industry. Piracy and copyright law go hand in hand. The arguments made by the authors are conventional ones, views more than likely anyone outside of a Game Developer’s office would hold. However, its methodology is very precise. It cites information in a very unbiased way and allows the reader to make up his/her own minds. This results in a very different experience for individual readers, yet at the same time brings the debate into the frame of mind that it wants. While probably more fact and data-oriented than the casual reader may care to stand, it accomplishes what it sets out to do in a very efficient way.

This was a landmark case in relation to the debate over Emulators. While taking place before a time when people downloaded illegal ROMs (Read Only Memory) on the Internet to play reproductions of classic video games, the argument here would be perhaps the most material one related to the subject. It was argued over Software Publisher Accolade’s practice of manufacturing unauthorized game cartridges for Sega’s Genesis video game console. Accolade did not wish to pay the heavy licensing fees that Sega was charging for official authorization, so they instead purchased Sega hardware and software and reverse engineered the console and “cracked its code” allowing them to produce and sell their own Genesis-compatible games (the first of which was 1990’s “Ishido” which was a game they converted from its original Macintosh and IBM PC release.) A district court found in favor of Sega, but it was appealed and overturned by the US Court of Appeals, 9th Circuit.

The important precedent set in this case was the fair use judgment involving the disassembly of copyrighted object code. According to the Judge J. Reinhart, “Where there is good reason for studying or examining the unprotected aspects of a copyrighted computer program, disassembly for purposes of such study or examination constitutes a fair use.” This decision essentially gave a validated legal existence to Emulators as well as the right to distribute them. This specifically refers to the Emulators themselves, which were created by reverse-engineered object code of the hardware of the original video game consoles. The ROMs used to play on the Emulators however, remain illegal to distribute even to this day under the DMCA (Digital Millennium Copyright Act.) However as established in other landmark fair use cases such as Sony Corp. of America v. Universal City Studios, Inc. simply providing the means to an infringing activity does not constitute an infringement itself. It is this method of argument that the Judgment seems to draw its endowment. The aim of stimulating activity for the public good qualifies object code as a fair use.

It is this very judgment from which the very crux of the pro-emulation side draws its argument. Even after the implementation of the DMCA, a person who is able to establish him/herself as a developer or an associate of one is legally permitted to create backups of game software based on the premise that they are extracting the code for either educational purposes or for providing the basis for an entirely new work. This is a very important concept in relation to Video Game Copyright Issues because serves as a prime example of what one is able to physically extract from products they pay for and own. To know that what transformative works may have resulted from that extraction is protected is key to understanding the intricacies of the emulation debate. That debate may pave the road for the future of the industry itself.

Reverse engineering is a common practice among those tech-savvy enough who wish to extract the source code from software or hardware. Even under the DMCA (Digital Millennium Copyright Act), such a practice is considered a fair use as long as the individual can demonstrate that they have legitimate interest in it such as being a game developer who wants to use it to create some kind of transformative work. However, this particular case, a 2006 appeal, brings to front the exception that negates this defense.

Davidson & Association (better known as Blizzard) are a software company who have developed many popular PC Video Games (Diablo, Starcraft, Warcraft, World of Warcraft.) Blizzard provides means for game players to play against one another through a specialized server whom authorized purchasers of their games are provided. This access is carefully safeguarded through a process involving an End User License Agreement (EULA) and a Terms of Use Agreement (TOU). These agreements are prompted to users before installation and applicable to this case, they strictly prohibit reverse engineering of any kind with their software.

This brings us to the defendants, Internet Gateway. In spite of these agreements, they reverse-engineered Blizzard software to create a type of emulator called the Bnetd Project, which was a namesake nod to “Battle.net,” the name of Blizzard’s server. The Bnetd software allowed users to run the online features of official Blizzard software on servers that they created themselves, in essence, bypassing Battle.net. The fair use defense of Bnetd failed even on the merits of its own arguments. What perhaps was its main defense was that Bnetd still required the official Blizzard software to operate. It may have been an argument on the possible lack of effects it would have on the market, but at the same time, it allowed potential pirated copies to enjoy benefits that would have otherwise remained exclusive to paying customers. The onus was on them to demonstrate how their software could provide legitimate non-infringing uses.

Indeed the law agrees that simply providing the means to commit infringement does not constitute infringement itself. However, no other use could be justified seeing as Bnetd existed only for the single purpose of infringing on the Blizzard licensing agreements. The standards for finding a fair use simply did not apply in this instance. The significance of this case is its demonstration of the power of the EULA and TOU. The court did uphold them as valid enforceable contracts and even went so far as to point out that Blizzard had placed the agreements on the outside packaging of the software, which also guaranteed a full refund within 30 days if the purchaser did not wish to comply.

In relation to the overall scope of Video Game Copyright Issues, you begin to see with this case where the old loopholes loose their luster when put to applicable standards which force infringing parties to reveal the underlying motive behind what they do. It may not necessarily be nefarious, but the ambiguity of copyright law was designed to create an atmosphere of innovation and creativity. If you are being honest with yourself and find that your motives are not quite so altruistic, then the concession may need to be on your part.

This was one of the most famous and controversial cases in the arena of the issues surrounding Video Game Emulators. The irony is that the case had nothing to do with a single piece of software. Instead it was over a screenshot of a Sony Playstation game screen that appears on the back cover of the packaging of the Bleem software. This screenshot was a comparison of what a game looked like when viewed through the normal Playstation console vs. how it would appear on the Bleem software, with supposedly enhanced graphics due to a properly equipped PC’s superior ability to represent color and pixels.

Sony had filed suit and won over the issue of this screenshot, it was quickly appealed and argued before the 9th Circuit Court. Bleem openly admitted that it took the screenshot and used it for advertisement and for the packaging, but doing so was protected as a fair use. The Court made special effort to apply the four factors in determining fair use: The purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the whole, and the effect on the potential market or value of the copyrighted work.

The fair use argument of Bleem brought forth examples from landmark cases like Campbell v. Acuff-Rose and Harper & Row v. The Nation. The Court’s attempt to avoid rigid application to copyright statute illustrates the frame of mind in which this decision was made. It was found that Sony’s argument did not stand the scrutiny as the screenshot did not have enough substance or was not the heart of the work, which was supposedly infringed. In relation to the last of the four factors in determining fair use, Sony was in the market in this instance with video game hardware and software, yet argue that they at the same time were in the market with the screenshots themselves. The Court clearly rejected this line of argument because the screenshots had no adverse affects on the market that Sony represented. Although the case was not directly about the Bleem emulator software, its presence undoubtedly hung as a pendulum over the entire case and was even addressed by the Court. It was not difficult to read between the lines to find what this case was really about.

This is an early, perhaps arguably, the first case that directly addresses the legal issue of Video Game Emulators and ROMs. Decided in 1983, the controversy here was surrounding a device JS&A produced and sold commercially called the “Prom Blaster.” It was a device, which attached to Atari’s 2600 video game console and allowed users to create back-up cartridges or copies of Atari games. JS&A also sold the blank cartridges it required.

JS&A’s method of argument was that the device allowed users to create backups of the cartridges they owned for protection against “mechanical or electrical failure.” But given the massive library of games that already existed for the Atari 2600 system at that point, the Court did not find any other relevant non-infringing uses for it. JS&A’s other argument was that the Prom Blaster was intended to copy games sold exclusively by JS&A themselves. The Court found that argument weak since they only manufactured nine games and given the cost of the machine, it would not constitute any logical decision to do such. The burden on JS&A was rather light especially considering it came in the aftermath of the Sony Corp. of America v. Universal City Studios, Inc. case which demonstrated that if the device could justify any legitimate non-infringing uses, it could be within the scope of fair use. JS&A’s device could not reap any such uses. It’s failure to do so left the Court with little choice but to issue a preliminary injunction enjoining JS&A from selling, manufacturing, and distributing the Prom Blaster.

There have been many such devices as the Prom Blaster developed for many subsequent game consoles over the following years. But it was not until the rise of the Internet did the practice of emulation really start to make any serious kind of detrimental impact to the industry. When all one needs is a computer and Internet connection to acquire an emulator of a game console and download an entire library of games, this became a danger to them in an exponentially greater way that JS&A could compare. Unlike physical counterfeit copies, this could lead to a form of piracy where the supposed loss and damages would be inestimable. That perhaps is why the JS&A decision is so important to the issue of Video Game copyright. There had been cases regarding software programming codes, but this was the first one to specifically call video games to the forefront to be judged in its own merit of being a protected work of artistic expression.