Game companies claim that users of emulators commit piracy and violate their copyrights because they are unauthorized users of code derived from the proprietary software present in game cartridges and consoles.59 They also claim that emulators tarnish the game companies’ brand equity, since emulators can never provide a gaming experience that equals “the real thing.”60 Both of these factors rob game makers of their fair share of profits. Game and console manufacturers present several arguments with regard to emulation.
“Emulation is piracy.”
63 Game makers claim that emulators should be banned because they provide a vehicle for software piracy.61 While game consoles include built-in anti-piracy chips to prevent pirated software from being played, emulators do not have any anti-piracy mechanisms.62 Consequently, piracy hurts all members of the current value chain. Nintendo spokeswoman Beth Llewelyn best summarized the game makers’ stance when she commented that “emulators are illegal, and they continue to support counterfeiting and piracy . . . this infringes on our intellectual property rights, and that’s something we actively protect.”
“Emulation is a threat to profits.”
In addition to the popularly heralded arguments about piracy, emulation poses an economic threat. Emulation challenges game makers’ core business model of forced migration to the next generation console while simultaneously denying the same companies’ software/game revenue. As described earlier, console manufacturers operate a “razor/razor blade” business model that is threatened by the distribution of free ROMs that, in turn, cannibalize software (game) sales.64 As a Nintendo legal department spokesperson has stated, the loss of a recurring software revenue stream is seen as the most significant threat:
The introduction of PC emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers . . . Such emulators have the potential to significantly damage a worldwide entertainment software industry, which
Ted Levan et al.,
cse.stanford.edu/class/cs201/projects-98-99/copyright-infringement/emulationanti.html (last visited July 4
http://www.nintendo.com/corp/legal.jsp#emulator (last visited July 4, 2004).
, Cnn.com, July 11, 2000,
http://www.cnn.com/2000/TECH/computing/07/11/liberty.games.idg/ (last visited July 4, 2004).
61 62 63 64
Entertainment Software Ass’n,
http://www.theesa.com/piracy.html (last visited July 4, 2004).
Levan et al,
note 41 and accompanying discussion. 271