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Vol. 2:2]

James Conley,

other than its original network broadcast) was fair use, but did not apply the same rule to

private taping of pay-television broadcasts.90

Likewise, despite a provision adopted in

1992 regarding the permissibility of non-commercial home recording of music on cassette decks and the like, U.S. copyright law has never provided that private or personal copying is automatically fair use, and no court has ever so held. 91

A similar case-specific response has emerged in the so-called “space-shifting” or “platform-shifting” phenomenon—e.g., copying a videogame so that it can be played on a d i f f e r e n t p l a t f o r m t h a n t h a t o r i g i n a l l y i n t e n d e d b y t h e c o p y r i g h t o w n e r . 9 2 I n f a c t , s u c h In principal, only the publisher can copying, if not authorized, may be infringing.93

decide when and whether to publish a videogame on a different platform; no court has recognized the right of the user to make such a decision under the fair use provision. In this instance too, fair use applies only after considering all four statutory factors. This includes the impact of the unauthorized platform-shifting on the copyright owner’s potential markets, including the market for the same game on a new platform, should the copyright owner choose to pursue it.

As these examples demonstrate, there are several critical aspects of emulation that fall within the gray-area of the fair use doctrine and copyright law in general. Until these issues are resolved, game makers will continue to argue that ROMs constitute a different media format and hence, are counterfeit and illegal. 94

IV.

STRATEGIC OPTIONS FOR MEETING THE CHALLENGE OF EMULATION

The video game emulation market is still comprised primarily of early adopters, but with increases in both P2P file-sharing and broadband adoption this market is poised for growth.95 As such, a reprise of the controversy in the music industry surrounding MP3 file-sharing may be imminent. Like their counterparts in the recording industry, console manufacturers have too much to lose if emulation fuels software piracy. To date, the console manufactures have taken an approach similar to that of the RIAA by attempting to stifle the emulation community by litigating aggressively to protect their intellectual property rights. However, the courts have yet to rule in the game makers’ favor, as

demonstrated by

and

. While the game makers and the ESA

continue to crack down on emulation sites, the rampant transfer of ROMs will continue— for every ROM site that is shut down, others appear to meet the unmet demand. 97

90 91

Sony Corp of Am. v. Universal City Studios, Inc., 464 U.S. at 429. The authors are not aware of any court that has held that this is fair use. Such a ruling would be very

92 controversial. This is analogous to

180 F.3d at 1081, where the court held that the cross-platform

formatting of a music file is not infringement.

93 In contrast, in infringement.

, cross-platform formatting of audio media was not considered copyright at 1081. However, as discussed earlier, this does not automatically imply that dumping a

ROM and using it with a legal emulator is legal provided that its source is of legitimate origin and such

94 actions are strictly limited to personal use. Entertainment Software Ass’n (“ESA”), 2004).

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

95 GEOFFREY MOORE, CROSSING THE CHASM: MARKETING AND SELLING HIGH-TECH PRODUCTS TO

MAINSTREAM CUSTOMERS, REVISED EDITION (1999) (defining an “early adopter” as a customer who embraces a new product concept early in its lifecycle.)

96 97

Connectix Corp., 203 F.3d at 601; Bleem, LLC, 214 F.3d at 1030. Figure 5: Nintendo 64 Software Game Revenues.

276

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