What is an Emulator?
An emulator is a program that emulates a game console, usually for the purpose of playing a game that is – either by price, age, or device – inaccessible. Streamers commonly use emulators to play Pokemon games made for the Gameboy, so they can screen-record their gameplay directly from their computer instead of having to somehow hook the Gameboy up to it. Zelda fans might want to play Ocarina of Time, but they might also find that the console to play it on is awfully expensive for one game where an emulator is pretty cheap! In certain cases, games are geolocked – countries restrict access to certain forms of art as a means of censorship. Emulators can make those games accessible to people who want to play them in that country.
In the 1990s, consoles were on top when it came to games. Computers were rapidly gaining in power, however, and some folks realized that the console could be recreated using a home computer. The first emulators were born via reverse-engineering console coding. They evaded legal action by only copying devices that were outdated, but that changed too with a major emulator made for the Nintendo 64 while it was still in production. Nintendo pursued legal action to stop the primary creators, but other folks who had already gotten their hands on the source code kept the project going.
Ever since then, emulators have lived in a strange space of both making games available and making them so available that the parent company decides to step in and try to wipe it out, which is nearly impossible once it’s out on the open web. Gamers simply won’t allow a good emulator to die!
Copyright
Copyrights are crucial to the gaming ecosystem, and it’s a delicate balance of allowing fan art, but disallowing unauthorized gameplay. Allowing game mods, but disallowing tampering that could lead to free copies being distributed against the company’s wishes. Allowing fun, but not theft. Copyright laws are always evolving – new tech comes with new ways to copy, create, and distribute intellectual property. Generally, though, copyright falls back to permission: did the original company intend for their IP to be used in this way?
Emulators and copyright don’t get along very well at all! Emulators are, by their very definition, creating access to the game in a way the original company didn’t intend. As such, it’s unofficial, and if money is exchanged, it’s not normally between the copyright holder company and the customer, it’s the customer and some third unauthorized party.
Games aren’t selling you just the physical disk. You’re buying a license to play the game. If you take it as far as Xbox intended to back when the Xbox One was coming out, friends are only allowed to come over and play with you on your license because the company can’t enforce it. It’s a limitation of the system that they can’t keep you from sharing disks or accounts.
Not every company thinks like this (see the Playstation 5 and a number of more recent cases regarding digital content ownership), but that’s the most extreme possible interpretation. You bought a disk so you could play a copy of their game that they have licensed out to you. You own the right to play that copy of the game, you don’t own the game itself.
Consider: Death of a Console
When a console dies, it’s taking all of its content with it. There is no more money to be made off of it, and the games are going to slowly disappear into collections and trash bins.
Does art need to exist forever, or is it okay if some art is temporary? Not every Rembrandt sketch is still in trade – some of it was just sketches, and he obviously discarded some of his own, immature art. Immature art is interesting to see, but it’s not what the artist wanted their audience to see. Otherwise it would have been better kept. Think about the ill-fated E.T. game that Atari made, they weren’t proud of it, they didn’t want it seen, and they saw fit to bury it. So they buried it. It was directly against their wishes for people to find this game and then play it. Emulating it is obviously not what the copyright holder wants.
But then consider all the little games included on a cartridge that’s just forgotten to the sands of time, made by a programmer who didn’t want it to fade away? Acrobat, also for the Atari, isn’t very well-remembered, but it still made it onto Atari’s anniversary console sold in-stores. 97 games on that bad boy, and Acrobat was included. It’s not a deep game, it’s nearly a single player Pong. But the programmers who made it didn’t ask for it to be excluded from the collection, so some amount of pride must exist over it, right? Does the game have to be good to be emulated? Is only good art allowed to continue existing officially?
Is all art meant to be accessible to everyone?
If some art is made with the intent to last forever, is it disregarding the creator’s wishes to not emulate it, against their production company’s wishes? If a corporate exec decides a work of art is better used as a tax writeoff than launched even though it’s already complete, is it better to listen to that exec, or the dozens – perhaps hundreds – of people opposing the exec’s will?
If art’s made to last forever but the artist (and society) accepts that that’s simply unrealistic, is it weird to emulate it, in the same way it’s weird to make chat-bots out of dead people?
When you get past the copyright, it’s a strange, strange world to be in.
Ethical Dilemma
Stealing goes against the ethics of most societies, modern or not. The case against emulators is that it’s stealing. It often is! An emulator/ROM (ROMs act as the ‘disc’ or ‘cartridge’ for the emulator) for Breath of the Wild was ready just a few weeks after the game launched, which could have seriously dampened sales if Nintendo didn’t step in to try and stop that. That first emulator, the one for the Nintendo 64, also drew a lot of negative attention for the same reasons, potentially siphoning away vital sales.
However, there’s a case to be made for games and consoles that aren’t in production anymore.
Is this a victimless crime, if the original game company really can’t make any more money off of it? It’s one thing to condemn piracy when the company is still relying on that income to make more games and pay their workers, it’s another entirely when the game studio isn’t interested in continuing support, and the console had a fatal fault in it that caused many of them to die after 10 years. That game is as good as gone forever without emulators. With no money to be made, why not emulate it?
In less extreme circumstances, the console’s still functioning, but the cartridges that went to it are incredibly rare. The company could potentially make money off of the game if they someday decided to remaster it, but that’s unknowable. Licenses could be available for purchases… but they aren’t right now.
Or, even better, the cartridges are still available for purchase in the secondary market. You just don’t happen to have the console, which has now spiked to a cost of 400 dollars due to reduced supply over time. You buy the cartridge – you’re still buying the license, you just don’t have the car, right?
According to copyright, you need a specific car for a specific license, but ethically, you’ve done the best you can as a consumer.
Brand Name
Much like Disney did with Club Penguin’s many spinoffs, emulators are kind-of sort-of overlooked up until they start eating into sales. More aggressive companies will go after emulators before they blow up (see Nintendo challenging Yuzu, an emulator) but most companies just don’t want to spend money to enforce an issue like emulators – their game is still being played, their brand is still out there, and the users are going to be very upset if this big company decides to step in and ruin fun when they don’t need to (see Nintendo challenging Yuzu, a beloved emulator). It may do more harm than good to try and wipe the emulator out when most people want to do the right thing.
Obviously, they’ll need to put a stop to emulating new games – the goal is to spend just enough money to do that effectively without also overstepping and destroying emulators for consoles no longer in production. It takes money to make games, games should earn money as a result. Removing emulators for games and consoles no longer in production isn’t helping them earn money – as such, many are allowed to stay. For now.
Sources:
https://scholarlycommons.law.northwestern.edu/njtip/vol2/iss2/3/
