By: PETER MILES HAMILTON
I would like to introduce everyone to a little hobby of mine: video game emulation. Game emulation is the process of using a computer program to mimic the programming of a game console, allowing the user to play video games without the use of an expensive console. Although emulating a game is not explicitly illegal, downloading copyrighted code (in this case, downloading a video game) is, and the many fan-made or parody games that one can play on emulators occupy something of a legal gray zone. That said, the law is not always clear on what is and is not moral or ethical, so I would like to speak in defense of game emulation, the circulation of code for older games, and the creation of new works using that code.
First, I want to define some terms that we will need to understand in this discussion. An emulator is a program that replicates the programming of a game console. A ROM, or “read-only memory,” is the code that a computer reads to play a video game. Finally, because it will come up later, a fan-game is a transformative work that uses elements of an existing property or franchise to create an entirely new experience (essentially, it is fanfiction in the form of a video game).
As mentioned earlier, playing games on an emulator is a bit on the illegal side. Not necessarily leading to jail time, but a cease-and-desist from Nintendo is usually enough to scare off anyone lacking the resources to mount an expensive legal challenge against a multinational corporation. It would fall under digital piracy, but it is only as serious a crime as those old hokey “You Wouldn’t Download a Car” advertisements were.
There are several reasons why people want to emulate games. The first and most common is when people want to play games from their childhood, but cannot find or cannot use the original games or systems. Maybe a person moved on and sold their old games, maybe they got lost or broken, or new technology has made the games unplayable in their original formats. The graphics of old Playstation or Nintendo systems are almost impossible to interpret on modern high-resolution television. I know this for a fact, because my Dad and I still have our old systems, and we ended up having to find a cheap LCD TV to play on our old stuff. In other cases, the old tech has become literally inoperable. For example, the original GameBoy had an internal battery that would expire after enough time, and the internal clock on the Game Boy Advance would stop counting after a while, making it impossible to save games on the system. Nintendo and other companies do not service these old devices nowadays, because it does not bring in enough profit to justify it, so the only way to play some games is through emulation.
The inability to use old technology also leads to the second reason for emulation; historical preservation of the medium. Video games have only recently started to be accepted as a legitimate art medium, which causes two problems. First is that there is little academic study of games. The old guard academics who are currently writing and teaching often lack familiarity with the medium. Second, before games were seen as art, they were seen as disposable children’s toys. When an old game went out of print, that was mostly it. There was no expectation that these games would merit being preserved or enjoyed after their initial run. As a result, the farther back we go in time, the less likely we are to be able to find a physical copy of a game and tech to play it (and certainly not at a price range that any actual human being can afford). Emulating games is often the only way to be able to enjoy historically significant games in a way that is remotely like their original format, without having been patched and upgraded or butchered beyond recognition in remakes.
The third reason for emulating is that the games industry is often absurdly hostile to players, and will routinely make it as difficult to play games as possible. For example, remakes of games will often include predatory business practices that were missing from the original (such as the 2019 Modern Warfare remake being balanced around in-game microtransactions, which the original lacked). In another example, games may be printed with artificial scarcity, where publishers purposefully create less supply than there is a demand to drive up the price. Super Mario 3D All-Stars, a remake of three Mario games, had a limited printing until earlier this month and is no longer sold officially to make it a collector’s item. Nintendo specifically is bad with this, where limited events, games, and entire franchises or systems being under-printed and not sold again so that prices stay high and rise years later, with the extra cost falling directly on the consumer.
Is it legal to emulate games? No, not particularly. But it is very much legal for companies to run these ridiculous scams, keeping us from the art we love, and honestly, I am not losing any sleep over emulating classic games that Nintendo refuses to put on their stores for reasons that disregard all sense of reasoning.