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Volume 2, Number 2 (Spring 2004) - page 12 / 30

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¶30

Console manufacturers such as Sony believe that emulators dilute trademark equity by distorting the product experience.66 In its legal battle against Connectix, Sony alleged that “[Connectix’s Virtual Game Station (“VGS”)] attempts to imitate PlayStation gaming, but more than seventeen million consumers can attest to the fact that nothing technically can compare to the experience delivered through the PlayStation game console in tandem with a home television set.”67 In other words, since VGS is not a real PlayStation, it cannot provide the “full” PlayStation experience (which presumably entails playing PlayStation games on a real television while using Sony joysticks for control, as opposed to playing them on a computer monitor while using a keyboard for control).68 This dilutes the PlayStation trademark, which associates the PlayStation name with the “full” PlayStation experience, and counteracts the time and resources Sony devoted to building its unique gaming experience.

¶31

Nintendo executives likewise expressed concern that emulators contribute to brand dilution:

Distribution of an emulator trades off of Nintendo’s good will and the millions of dollars invested in research and development and marketing by Nintendo and its licensees. Substantial damages are caused to Nintendo and its licenses. It is irrelevant whether or not someone profits from the distribution of an emulator. The emulator promotes the play of illegal ROMs, not authentic games. It has the opposite effect and purpose . . . If these vintage titles are available far and wide, [then] it undermines the value of this intellectual property and adversely affects the right owner.69

Vol. 2:2]

James Conley,

generates over fifteen billion dollars annually, and tens of thousands of jobs. 65

3.

“Emulation leads to trademark/brand dilution.”

4.

“Emulation leads to intellectual property infringement.”

¶32

The Entertainment Software Association (“ESA”), formerly the Interactive Digital Software Association (“IDSA”), an association that represents U.S. computer software and video game publishers, asserts that emulators infringe the intellectual property rights of the various game console and software vendors: “[I]n fact, most emulators that are freely available today are merely software[-based] emulators that have no role in the creation of properly licensed video games; these emulators have the exclusive purpose of infringing copyrights and are [therefore] illegal.” 70

65 66

Nintendo Online,

Ted Levan et al.,

http://www.nintendo.com/home (last visited July 4, 2004).

(March 1999),

http://cse.stanford.edu/class/cs201/projects-

98-99/copyright-infringement/emulationanti.html (last visited July 4, 2004).

67 68 69 70

.

Pettus,

note 21.

Entertainment Software Ass’n Online,

http://www.theesa.com/piracy.html (last visited July 4,

2004).

272

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