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





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Vol. 2:2]

James Conley,

Not surprisingly, distinct fault lines have emerged in the emulation debate. The video game console manufacturers and game publishers contend that emulation is illegal and infringes their intellectual property rights.5 Interested in enforcing their copyrights, they litigate in an effort to shut down emulators.6 By contrast, the community of emulation users questions whether unauthorized emulation is really a violation of the original innovator’s intellectual property rights.7 The emulation user community insists that emulation only preserves its right to enjoy old video games, many of which are no longer commercially available.8 Further, customers may already have the rights to these games, albeit in different formats. As emulation advocate, T. Liam McDonald, author of

states, “The problem isn’t the rise of emulators. It’s that there are too few of them.”9

The response of console manufacturers to the emulation phenomenon presents striking parallels to the past tactics of the music and motion picture industries, in which incumbent IP owners claimed that “shifting” content from one media platform to another infringed copyrights. In

, and

, the incumbent value chain members in the music and

motion picture industries failed to embrace the opportunities associated with the new technology.10 Instead, RIAA defended traditional business models by waging a legal

release of an emulator is non-infringing provided that no patents were violated and that the final product did not contain any infringing code, and also holding that emulation itself is a protected fair use of computer software). Sony sued Connectix over a commercial emulator designed to run on Macintosh computers. Sony claimed that Connectix’s reverse engineering of the PlayStation’s basic input/output system (“BIOS”) violated copyright laws, despite the fact that the PlayStation’s actual BIOS appeared nowhere in the Connectix emulator. Sony sought to obtain a preliminary injunction against Connectix, to prevent the use of the PlayStation BIOS and prevent the marketing of the emulator. Connectix countered by arguing that copying and reverse engineering the PlayStation BIOS was protected as “fair use” under

current copyright law. The Ninth Circuit (which recently ruled in the

case) found in favor of

Connectix, and the emulator was published for both Macintosh and Windows operating systems. Sony Computer Entm’t v. Bleem, LLC, 214 F.3d 1022 (9th Cir. 2000) (holding that Bleem!’s use of copyrighted images from PlayStation games was protected by “fair use”). Only a few months after

, Sony filed

, for again infringing on copyrighted material. Sony alleged that

Bleem!’s use of copyrighted images from PlayStation games amounted to copyright infringement. Bleem!, however, claimed that the use of these images was purely for comparative purposes, in order to show the Bleem! emulator’s superior graphics, and that such use constituted protected “fair use.” Although this case was ostensibly about the comparison of copyrighted images on the boxes of Bleem!’s software, Sony’s ultimate goal was the same as in the Connectix case: to obtain a preliminary injunction which would effectively prevent Bleem! from marketing the software. In this case, the court noted that, while it was unlikely that the emulator would negatively impact the sales of PlayStation games, it would very likely cut into the market share enjoyed by the PlayStation console. However, the Ninth Circuit again found that the use was protected and vacated the injunction. Although Bleem! won most of its lawsuits against Sony, Bleem! lost a lot of time and money in court. The lack of Bleemcast’s success and the fact that many gamers were moving on to newer, better systems eventually led to Bleem!'s demise. In November 2001, Bleem! was acquired and shut down by Sony.

5 Dale Dallabrida,


JOURNAL, Apr. 8, 2003,

http://www.delawareonline.com/newsjournal/life/2003/04/08vintagevideogam.html (last visited July 4,


6 7 8 9 10



, 203 F.3d at 596;

T. Liam McDonald,


. In

, 214 F.3d at 1022.

, MAXIMUM PC, Sept. 1999, at 41.

, 180 F.3d 1072, 1081 (9th Cir. 1999),

the Ninth Circuit ruled that Diamond’s Rio MP3 audio player was not in violation of the Audio Home 262

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