Video Game Emulators and Game Preservation – Presentation Discussion Outline

We have all probably experienced seeing gameplay of an old game and thinking it would be fun to play that game, only to find out how unrealistic buying the game really would be. Even trying to play an old Pokemon game from our childhoods, on its original hardware has become very difficult. As a result, people have turned to alternative means to play older games, namely emulators. 

Video games emulators are becoming increasingly commonplace as retro games are becoming harder to acquire. People scalping old games is occurring more frequently, especially after COVID, causing prices for some retro games to skyrocket. People also have to acquire the old consoles to play the retro games which only adds to the difficulty of playing retro games. With all the difficulties surrounding  playing retro games in modern times, many use emulators to experience the games they were too young to play growing up. While emulators themselves are becoming more popular, there is little discourse discussing whether emulators themselves are legal. With Nintendo taking a more proactive role in shutting down emulators, people may presume emulators themselves are illegal. 

Our presentation is going to dive into the legality of video games emulators and how emulators interact with Copyright Law and Fair Use. We will cover the Sony Computer Entertainment v Connectix Corporation (2000), 203 F.3d 596 case which directly answers the question of whether video game emulators themselves are legal, at least in the American context. 

All of this leads into the second half of our presentation which is on the critical topic of video game preservation. Video game preservation is the process of collecting, preserving, archiving, cataloging, and making available to play, older video games. As you may imagine, this task brings forth many technical challenges that need to be worked out. In addition, those working to preserve video games for future generations find themselves often sticking their hands in the hornet’s nest that is the legality of game preservation.

Video game preservation is the final boss of video game law and intersects with most of the legal issues already discussed in this course including end-user agreements, copyright, licensing, and fair use/dealing exemptions. For the purposes of our presentation, we focused on a single recent development, an attempt by organizations who are trying to attain an exemption under 17 U.S.C 1201 of the Copyright Act to be able to circumvent copyright protection systems for the legitimate purpose of saving, protecting, and distributing video games for research purposes.

In the course of our presentation we will explain the position of both sides of the debate and discuss the Register’s decision (which can be found here if you would like to see it before class: https://www.copyright.gov/1201/2024/2024_Section_1201_Registers_Recommendation.pdf , see pages 191-192 for the Register’s decision). 

Finally, we will explore if anything could be done differently through evaluating the proposed exemption from the perspective of Canadian law. Our presentation focuses on the unique provision for Orphan Works in section 77 of the Copyright Act and the SCC position on fair dealing for educational purposes, in particular Justice Abella’s obiter comments from York University v. Canadian Copyright Licensing Agency (Access Copyright) 2021 SCC 32 (at paras 87-106), where she explains that any assessment of fairness in a fair dealing case cannot ignore user’s rights in its analysis.