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Volume 2, Number 2 (Spring 2004) - page 13 / 30

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Vol. 2:2]

James Conley,

While it may be true that some game makers’ intellectual property rights are being violated (mostly in the form of copyright, trademark and trade dress infringement), the ESA’s sweeping statement, like most generalizations, will not withstand the scrutiny of legal proceedings. To date, such matters have been decided on a case-by-case basis. Provisions for “fair use” and “reverse engineering”71 have rendered some emulators legal, and copyright infringement remains a gray area as the courts struggle with how to distinguish pirated from reverse-engineered emulators. 72

On March 22, 1998, the IDSA (now the ESA) launched the “great sweep” against the emulation community, shutting down emulation sites deemed to be pirating game software.73 However, emulation is different from software piracy in that it is not inherently illegal; the specific combination and use of its individual components

determines an emulator’s legality.74

In both

and

,

the Ninth Circuit Court ruled in favor of the emulators arguing that the fair use provision protected Connectix’s reverse engineering of the PlayStation BIOS and Bleem!’s use of copyrighted images from PlayStation games.75 Figure 7 below highlights the distinctions entailed in determining the legality of emulators.

Legal

Illegal

Gray Area

Reverse engineered

Reverse engineered

? Using an

emulators (protected

emulators that

emulator with

under “fair use”

incorporate actual

legally owned

doctrine)

code from the

software (in another

Making a copy of the

original console

media format)

software for

BIOS

Component Emulators

? Making a backup copy of the game

ROMs/BIOS

development purpose

s

(e.g., BIOS dump) Downloading & using public domain ROMs

Downloading & using “active” ROMs76

Most emulators are built on the principle of reverse engineering.77 Reverse engineering entails mimicking the behavior of an existing code base without directly

71 72 73 74

203 F.3d at 596;

Pettus,

note 21.

. Richard Lawrence,

214 F.3d at 1022.

,

h t t p : / / w w w . c r i s . c o m / ~ T w i s t / a t a r i 8 0 0 w i n / l e g a l . s h t m l ( l a s t v i s i t e d J u l y 4 , 2 0 0 4 ) .

75 76 77

203 F.3d at 596;

214 F.3d at 1022.

“Active” ROM refers to those from contemporary commercially available software games.

Lawrence,

note 74.

273

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