ROM sites are falling, but a legal loophole could save game emulation

Is it really legal?

Despite Ethridge's confidence, it remains an open question whether Console Classix's ostensible legal loophole for digital ROM "rentals" would hold up in court. The premise has simply yet to be fully challenged.

The relevant law, Section 117 of the US copyright code, definitely allows cartridge owners to make backups copies of their own software for personal use. That section also says those copies "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."

On the surface, that sounds like a test Console Classix could pass. "Their theory [is that] they made a legal backup copy, which they're leasing to the end user along with the original, and any intermediate copies of that are to run the program. So it should all be authorized by [Section] 117," attorney and Law of the Game blogger Mark Methenitis told Ars.

But while all the individual pieces of what Console Classix is doing might pass legal muster, Methenitis thinks linking them all together could still count as an illegal "adaptation," which might run afoul of the law.

"They've basically adapted an NES game to the PC in the process, and you'll note the end of 117(b) states: 'Adaptations so prepared may be transferred only with the authorization of the copyright owner,'" he says. "Further to that, I question whether a judge would view their program as a true lease of the cartridge when the cartridge never actually leaves their possession."

Absent a direct test of the arguments in court, Methenitis said the 2014 ABC vs. Aereo case could set a bad precedent for the site. While Aereo argued it was simply providing a remote DVR service using legal, individualized over-the-air antennas, the Supreme Court found that, in practice, Aereo was acting more like a cable company and therefore needed to pay license fees to the networks it streamed.

A similar argument could be made that Console Classix is acting less like a game rental service and more like an online game subscription service, à la Xbox Games Pass or the sadly defunct GameTap. Those kinds of services need to get specific licenses from the copyright holder to distribute every game in their catalogs.

Console Classix may also need to worry about the fate of Zediva, a company that similarly offered online streaming of physical DVDs that users would rent individually. In 2011, a court ruled that Zediva was "violating Plaintiffs' exclusive right to publicly perform their Copyrighted Works." Nintendo and other video game makers have used their control of similar public performance rights to shut down everything from live video game tournaments to YouTube streamers, and these companies could likely use similar arguments against the "rental" of cartridge-linked gaming ROMs in court.

The Open Library, but for games

Even if Console Classix's argument eventually failed in court, though, Methenitis said a similar service operated by a non-profit institution might fare better under the more expansive Section 108 of the Copyright Code. "A library or archive does have some more leeway in doing things to preserve works and serve the public," he said. "If a library tried doing this, I think they might have a better chance at being successful in court based on the allowances that are given to libraries."

One doesn't have to look far for an example of a library digitizing physical objects for temporary, serialized loans—as long as the physical objects are books, that is.

The Internet Archive's Open Library project has been offering millions of public domain eBooks since 2007. But the site's offerings expanded in 2011, when it partnered with physical libraries to loan out scanned eBook versions of tens of thousands of out-of-print but still-in-copyright physical texts. Users can "check out" those digital copies for two weeks through Adobe's Digital Editions software, and other users have to wait until that digital copy is "returned" to get access.

The arguments being made by the Open Library project and the more than 150 physical libraries that contribute to it sound an awful lot like the ones being made by Console Classix. "If you own a physical copy of something, you should be able to loan it out," Boston Public Library Digital Projects Manager Thomas Blake told The Wall Street Journal in 2011. "We don't think we're going to be disturbing the market value of these items."

"We're trying to build an integrated digital lending library of anything that is available anywhere," Internet Archive found Brewster Kahle said in the same WSJ article.

But this limited sharing of digitized books also has its detractors. Earlier this year, the Author's Guild argued in a blog post that the Open Library is "displaying and distributing full-text copies of copyrighted books to the entire world without authorization, in flagrant violation of copyright law." The Open Library versions take money out of authors' pockets, the Guild argues, and it hurt the market for fully licensed eBooks often distributed by "legitimate libraries."

Still, the Open Library continues to operate without much legal hassle, save for a few omissions created by individual copyright takedown notices. The same system used for this digitized library of physical books could easily be adapted to a digitized library of physical cartridges, giving professional preservationist weight to the Console Classix's hobbyist idea.

“Nintendo ranks up there with... the mob”

In many ways, though, that would be a step backwards from what the Internet Archive already does for some classic games. Through the Emularity project, which launched in 2015, the Archive currently offers unlimited, in-browser emulation of tens of thousands of pieces of classic software. That includes console video games dating from the Magnavox Odyssey to the original PlayStation, arcade games dating back to the '70s, and many early PC games for DOS, Windows, and Apple platforms.

"On the whole, game companies have been communicative and understanding about the nature of a library that offers games," Emularity manager Jason Scott told Ars. "Most game companies have an understanding that their titles are part of the fabric of culture, and it's a sign they've played an important part in people's lives."

There's at least one major exception to that "understanding," though. The exception becomes quickly apparent when you notice no Nintendo hardware or software is available in Emularity's listings.

"In the realm of corporations ruthlessly working to control their own narrative to the detriment of research and reference, Nintendo ranks up there with Monsanto, coal companies, and the mob," Scott said. "I'm disappointed to see a lot of the conversation in video game preservation being driven by Nintendo's actions, because their no-holds-barred shotgun approach is an anomaly... You expect emotions when people talk about old video games, but one of them shouldn't be fear."

Nintendo isn't the only company that issues takedown notices for Internet Archive-hosted games, but Scott suggested it's the most vindictive about the process. The company's legal crackdown is so great that Emularity won't even risk emulating Nintendo hardware to run games owned by non-Nintendo publishers.

Moving forward

This is where an Open Library-style lending program for ROMs could theoretically provide a way for the Internet Archive to emulate games that are otherwise restricted. And Scott acknowledged that it's "an interesting idea to apply to videogaming," especially if the Archive can find a deep cartridge library to partner with. "I really wish the Internet Archive had lots of institutions we could work with and partner with providing playable access to historical software collections, but it's been rather difficult. We're here with open arms and I look forward to those days."

Still, the fact that the Console Classix system has yet to be tested in court might give pause to some preservationists. "I think institutions and museums want something they can hold onto for blanket protection, although no such thing exists," Scott said. Going to the extra effort to secure cartridges to backstop lent-out ROMs "assumes that most game companies need the level of fealty and ring kissing Nintendo does, and they don't," he added. "Most have been indifferent or recognize what the Emularity is: a pleasant and easy to use window into game and computer history, available at the click of a button for research, reference, and entertainment."

And even the most expansive collection of original cartridges would likely have holes. While Console Classix has a few relatively rare games, ultra-rare cartridges like Little Samson or the Nintendo World Championship Cartridge cost thousands of dollars on the open market, making them unlikely to ever make it into a loanable collection (digital or otherwise). Wider access to those games may be forever dependent on pirated files that will continue to float around the Internet amidst the industry's attempts at legal Whac-A-Mole.

"I think that this [digital ROM lending] approach could be used by libraries, etc., but it doesn't solve the problem of most games being unattainable," Video Game History Foundation Founder Frank Cifaldi told Ars.

For years now, piracy has been the de facto solution for that problem of "unattainable" classic games. The ROM ripping and distribution community has done the job the industry couldn't or wouldn't, offering convenient access to a wide library of classic games despite legal challenges. Given that reality, finding a loophole to provide legal access to those games may strike some as wasted effort.

Still, the rise of services like iTunes, Netflix, Spotify, etc. shows that a legal digital marketplace can help supplant one where piracy has a de facto monopoly, with wide benefits for both consumer convenience and publisher profits. The game industry at large can still come together to create a similarly robust emulation service that captures the breadth of gaming history. Until and unless they do, efforts like Console Classix and the Open Library show a possible way forward for gaming's preservationists.