program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law. 83
the defendants were able to successfully prove the
use of “clean room” techniques during the development of its Sony PlayStation emulator, with the result that their product did not contain any infringing code, as outlined by the stipulations of the DMCA. 84
Concomitant with debates regarding the legality of the emulators are those that question the legality of emulation software. Emulation opponents contend that the only software individuals can legally use is that which has either been purchased from the manufacturer or has been transferred by the manufacturer to the public domain.85 Video game and console manufacturers insist that free distribution of their videogame software violates the games’ status as active commercial ROMs.
A more tricky issue emerges if the individual downloading the software actually owned the software in another form at one point. In this case, the emulator user may be able to legally use downloaded ROMs (since he now owns the original and an archival backup) under the “fair use doctrine.”87 However, there are no hard-and-fast rules that dictate that certain uses are always fair; fair use has always been determined on a case- by-case basis.88 To decide whether a particular use is fair use, the Copyright Act requires a court to consider four factors:
The purpose and character of the use;
The nature of the copyrighted work;
The amount and substantiality of the portion copied; and
The effect of the use on the market.
Often these rulings do not provide clear-cut guidelines. For example, in the Supreme Court ruled that private copying of over-the-air television broadcasts for the purpose of “time-shifting” (watching a television program at a time
83 84 . , 203 F.3d at 596 (holding development and release of an emulator is non-infringing provided that no patents were violated and that the final product did not contain any infringing code, also
holding that emulation itself is a protected fair use of computer software).
, 214 F.3d at 1022
(holding that Bleem!’s use of copyrighted images from PlayStation games was protected by “Fair Use”). Although Bleem! won the lawsuit, it was ultimately acquired and shut down by Sony as a result of the lack of success of its Bleemcast product and the financial drain of the lawsuit.
85 Entertainment Software Association, http://www.theesa.com/piracy.html (last visited July 4, 2004).
86 87 . “Fair use” allows limited uses of copyrighted materials in ways that would otherwise be an infringement of copyright, even if the use was made without permission of the copyright owner. Originally created by the courts, the fair use doctrine was codified in the 1976 Copyright Act.
88 Mark Traphagen & Sarah K. Wiant, (Sept. 6, 1996), http://www.utsystem.edu/ogc/intellectualproperty/swguid.htm (last visited July 4, 2004).
89 . 17 U.S.C. § 107, 2004)
http://www.copyright.gov/title17/92chap1.html#107 (last visited July 4,