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 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.

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.