Emulation is the most sincere form of flattery : retro videogames, rom distribution and copyright

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Farrand, Benjamin (2012) Emulation is the most sincere form of flattery : retro videogames, rom distribution and copyright. Journal of Internet, Law and Politics (14). pp. 5-18. ISSN 1699-8154 (https://doi.org/10.2139/ssrn.2018883)

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Abstract

The Internet has made it possible for amateur game creators to collaborate on projects irrespective of geographical location. The success of projects such as Minecraft, and even CounterStrike, demonstrates that ‘indie’ developers can create entertainment products just as popular and successful as mainstream developers with huge budgets. However, many individuals instead are more interested in the old than the new – reliving past experiences through the playing of old videogames that are no longer commercially sold. Through the creation of emulators, and the ripping of ROM images (data that allows for the playing of an emulated videogame, such as Super Mario Bros. on the Super Nintendo), games with nostalgic value can be easily distributed, played and replayed. In addition, this allows for the preservation of legacy content that may otherwise be consigned to the ‘dustbin of history’. However, irrespective of the effort and ingenuity that goes into the creation of emulation software, and the effort involved in ripping ROM data to make old games playable, are these pursuits entirely legal? The purpose of this paper is to consider the compatibility of such projects with pre-existing norms of intellectual property law, comparing and contrasting the approaches of US and EU IP regimes in their handling of emulators and ROMS. The paper will analyse the issue under pre-existing legislation and with regard to relevant case law, seeking to draw conclusions on whether the existing regimes in copyright law are compatible and satisfactorily balance the right of videogame publishers to seek fair remuneration for their work with the desire by enthusiasts to preserve and relive a form of creative culture.

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