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. Fair Use and ROMs
by Chuck Cochems
11 March 2000
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.      This is the original draft of the article that Chuck sent to the Scribe for inclusion in the EmuFAQ.  He found it intriguing enough to have Chuck work up in a formal manner for the EmuFAQ.  We think you'll find Chuck's original just as provocative as well.  They have been kind enough to make it available to us for your reading pleasure.

Chuck Cochems is one of the most brilliant debaters on the emuscene today.
- The Scribe
I'm getting sick and tired of certain vendors screaming software piracy anytime somebody raises the ugly specter of everyday gamers using cart dumpers on older console videogames.  They seem to think we on the emuscene are out to burn them, that we somehow have the means to steal "billions and billions" of dollars from them just because we don't want to play our legitimately purchased games on the original hardware anymore.  This is an absolute crock.  You want to know something?  You want to know the truth behind the practice of dumping ROM cartridges for use with a software emulator? 

This practice is both ethical and legal.

There is little question in every emufan's mind, and even in many software developer's minds that it's ethical to play that game you paid for on your emulator.  After all, you've bought it, you've paid for the right to play that game as long as you posess the original media.  If I wanted a limited right to play a game, I'd walk into an arcade and put a quarter in.  We buy video games so we can play them as long as we are entertained by them. If the game is good, but the hardware dies, is there anyting wrong with running it on an emulator instead? Is there anythingwrong with playing a Gameboy game on your PC because your gameboy AC adaptor went on the fritz and you don't want to waste the batteries? Of *course* not!  Bottom line is, you bought the game, it's your right to play it as long as you have the original.  How you do this doesn't matter.

Of course, ethical and legal are very seldom the same. It's illegal to smoke ganja in many places. Does that make it wrong?  Abortion is legal in some places, and illegal in others.  Is it ethical?  I believe it is, under certain circumstances. It's elgality has nothing ot do with it. We know it's certainly ethical to play a computer game. But is it legal?

Some bog bad vendors and organiations will tell you tha the answer is no.  They will throw phrases at you such as Digital Millenium Copyright Act.  End User License Agreement.  WIPO treaty.  Software piracy. Contributory infringement.  They will tell you that even though you do own the cart, that you have no right to dump it for any reason.  They wil tell you that devices that dump carts are illegal under the DMCA. They will also tell you that the only purpose of the emulator is to play infringing copies, and that makes it ilegal.  They may even tell you that you aren't allowed to play the game on your PC at ALL, because it hasn't been licenseed for play on PCs.  EVERY ONE OF THESE STATEMENTS IS FALSE.

First, I will talk about their contention that you, the person who bought the cart cannot dump it for any reason.  This is completely false. There are many reasons you can legally dump a cart.  You can dump a cart and disasemble it to learn about how the system works. This is reverse engineering, and some types of it are legal.  This particular sort I've just described, dumping and decompiing a rom for educational purposes, is legal.  You can dump and reverse engineer the game to figure out how to make a program you are writing work with it. (emulator developers do this all the time).  However, these esoteric uses aren't what the emulator user does.  The honest emulator user dumps his cartridge for a different reason so that he can play it on his computer. Is this legal?  YES.

Copyright law lists creating derivitave works under the exclusive rights of the copyright owner.  However, there are three exceptions with regard to computer software, which all console games are, that the average user can take advantage of.  I will discuss all of them.   Two are unique to software.  One is the archival copy.  This was added to the law back in the days when software was sold for computers on magnetic media, such as tapes and disks.  This media was fragile, and often a disk would go bad.  Since the company couldn't very well replace it for free (if they did that, what would stop you from getting a ton of copies by claiming you broke yours) the lawmakers decided that the end user had the right
to make an archival copy of the software, in case the original went bad, to protect his investment.  Many people claim their ROM dumps are archival copies.  However, this claim is false.  A quick glance at the law sates that for a copy or adaptation to be made uner that clause, it must be for archival purposes only.  If you play it on an eumlator, you're using it for a purpose besides archiving. So this doesnt' justify dumping the cart.  Even if you plan to load it back into your console copier later, and play it on your original console, you just copied your copy.  If a copy is made of a copy, the first copy has just been used for a purpose other then being an archive.

The other exemption for computer software, is the right of operational adaptation.  This, in plain simple english, is stating that you can make a copy or adaptation without authorization from the copyright owner, provided that it is an essential step in using that software with your computer, and that's all the copy is used for.  So say I have a Super Mario Bros. cart, and I want to play that game on my PC.  The cart won't work on it.  I have an emulator, but because the PC can't read the cart directly, I have to dump the contents of the cartridge ROMs, and create a ROM image file, which can then be loaded into the emulator.  This act was an essential step in playing the game on my PC.  So does that make it okay?  Yes, but (and this is a BIG but) i don't use the rom dump in ANY other manner. I cant' patch it, I can't open it in a hex editor, and I certainly can't upload it.  All I can do is load it into the emulator.  In the case of Super Mario Bros. this is enough.   But in the case of Final Fantasy VI, this is not enough. I will need to translate the game to English if I really want to play it, and that's doing something else with it.  SO this exemption won't help me in many cases.

This leaves the exemption talked about so much by the courts, fair use.  This one is so imptant, that I'm going to quote the law below.

Sec 107 - Limitations on exclusive rights:  Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - 
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 
  2. the nature of the copyrighted work; 
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 
  4. the effect of the use upon the potential market for or  value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 
Now the first paragraph of the law describes some common examples of fair use, such as making copies for students, copying a page or two out of a  reference book to help you write your term paper, snapping a picture for news reports, etc. However, that is not an exclusive list. Any use of a copyrighted work may potentially be fair use.   For deermining whether or not a given use is fair use, four tests are listed below the opening paragraph.  All must be considered.

Test 1 is the purpose and character of the use.   Whether or not a use is fair depends on what the use is.  Usage for commercial purposes usually fails this test. Usage for nonprofit educational purposes passes this test.   Taping a show off of TV to watch later passes this test.  Taping a movie off of TV, and then selling that videotape of the movie does not. 

Now let't apply this test to dumping a ROM of a game that you OWN the media for to play on an emulator.  Is this use commecial? No, it is not.  You aren't buying, selling, trading, or even giving anything to anyone. There is no commerce involved, so it is not commercial. Is it non-rofit? Yes, you aren't making any money from it.  Is it educational?  No.  However, because it is non-commercial, and non-profit, it can be presumed to pass the test, just like taping a TV show and watching it later, which has been found to pass this test in the world-famous Betamax case (Sony v. Universal).

Now if you were to upload that rom, you would be placing it in a forum for commerce, and that would make yor use commercial, which would cause it to fail the test. But as long as you keep it to yourself, there is no forum for commerce, and you will pass it.

Test 2 is the nature of the original work. Some works by nature have a lot greater leeway for fair use than others. Reference books, for example, would pass this test, since almost all uses of a reference book are fair.  In fact, they are designed expressly for fair use. Another such example are children's songs.  Almost every conceivable use of them is fair.  However, a work that is sold on the market, and is for entertainment, which a vidoe game qualifies for, has a lot less leeway.  It fails the nature of work test.  But this alone does not mean it's not fair use.  Parodying a song is fair use, even though by nature, the work fails this test.

Test 3 is the amount and substantiability of the copy.  How much is copied, how good is it, and how many were made.  Making a copy of part of a book is almost always fair use. Copying a entire book wouldn't be.  NOw how much of the work is copied when you dump a cart? ALL OF THE CODE is copied, and all of the DATA contained in the work.  And it is a perfect digital copy.  So it would seem to fail this test as well, although some will argue that it does not.  Again, just because this test fails does not mean it's not fair use.  For now, i shall ignore the arguments that this test is passed.

Test 4 is how much it affects the company's bottom line.  If you copy a program, and start selling copies cheaper than the copyrigh holder is, obviously you are hurting their bottom line, and you've failed this test.  If you install te program on two machines, and use both at the same time, you've avoided buying a second copy, and fail this test.  But if you never use both machines at the same time, you haven't caused them any harm, you've just saved yourself the effort of continuously uninstalling and reinstalling the software.  This would pass.  Does the dump pass? Again, it' dependent on what you do with it. If all you do is play it on your emulator, and never at the same time as your orignal, then it causes no more harm than installing normal PC software on two computers, but it never being used on both at the same time.  You haven't harmed them.  And if EVERYBODY did this,it still wouldn't harm them much.  But if you upload it to the internet, or in fact let ANYONE else have it, you fail this test.  Sue, one person giving a copy to a friends causes very little harm, but if MANY people did the same thing, then it would cause a lot of harm.  So as long as you KEEP IT TO YOURSELF, and only keep it as long as you own the proginal media, you haven't hurt them any.  So this test is passed.

And passing these two tests is enough.  This has been decided in the courts.  The case here is Sony Vs. Universal.  it states three major points. Onwe is that any individual may claim the fair use exemption. To wit,

Any individual may reproduce a copyrighted work for a "fair use;" the copyright owner does not possess the exclusive right to such a use.
In other words, anyone may copy a copyrighted work, as long as that copy is a fair use.  This exemption is not restricted to just certain groups of people, such as students, teachers, and public libraries mentioned in the law and other places.

The second point is that use that is non-commercial and non-profit may be persumed to pass test one.  The use quoted, taping a show so you can watch it later, was non-commercial, and non-profit, though it was not educational. It was ruled to pass.  The same is true of peronal ROM dumps to use on an emulator.  The use is non-commercial, and non-profit.

[The fair use doctrine]  identifies various factors that enable a Court to apply an "equitable rule of reason" analysis to particular claims of infringement. Although not conclusive, the first factor requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision. If the Betamax were used to make copies for a commercial or profit-making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court's findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity.
It goes on to say,
Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 USC s 107(2), and that timeshifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, see id., at s 107(3), does not have its ordinary effect of militating against a finding of fair use. 
What they said was even though the whole program was copied, the copy merely enabled him to watch a show he was already entitled to watch for free, and because of that the fact that the whole thing was copied didn't prevent it from being fair use.  In the same way, dumping a rom you have enables you to play the game you are already entitled to play, except on your PC.  So the same reasoning applies here.  This use is just as legitimate.

The third point is that a use that is non-commercial, non-profit, and personal causes no provable harm to the copyright holder.  It has been established above that taping a show to watch later is non-commercial and non-profit.  it is also persnoal, because the tape never leaves your house.

This is not, however, the end of the inquiry because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work." Id., at s 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing
This just says that while non-commercial use can fail this test, it doesn't if they can't prove it hurts them.
Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.
This says simply that commercial usage can be presumed to fail, and must be proven to pass.  It also says that non-commercial use must be proven to fail, and is otherwise presumed to pass. Commercial usage is guilty until proven innocent, non-commercial use is innocent until proven guilty.

It goes on to say that Universal failed to prove that time-shifting caused harm.  Universal and comppany tried to argue that harm came from their loss of control of when the program would be watched, and that it would affect viewing patterns in ways that could cause them harm.  However, the court ruled this to be speculation, and not proof.  In the same manner, companies can claim that harm results from their loss of control over the platforms the work will run on, and the changes in buying patterns that will result, but these predictions are every bit as speculative.  They cannot PROVE any harm from you playing the game on your emulator.  They an claim you won't buy new stuff if you are playing old stuff, but that's speculation.  It's also possible you will buy more new stuff to support the company (this is the truth in my case!).  So personal, non-commercial, and non-profit use of dumps passes this test, and I think we can agree that playing a game on an emulator meets these qualifications.

It makes sense when you think about it.  Time shifting is fair use.  What the emulator user is doing is "system shifting": moving the work from one system, to another.  It's fair use when done with music. It's perfectly legal to dub your CD onto a tape so you can play it in your ca,r which doesnt' have a CD player, but does have a tape player. You've bought the album, giving you the right to listen to the song any time you want as long as you own the album.  So transfering the object code from the cartridge, where you can play it on your console, to a binary file where you can run it on your PC, is basically doing the same thing, for the same sort of copyrighted work (audiovisual entertainment).

So much for the contention that all dumps by end users are illegal. :) This argument goes down in flames.  Now how do we do it?

Well, before the Digital Millenium Copyright Act was passed, you would buy a ROM dumper (which was legal to buy and sell) and dump your cart.  However, the DMCA has some nasty clauses in it that affect things considerably here.  The major one is that it becomes illegal to own, manufacture, or distribute a device that circumvents or removes a technological measure that effectively controls access to a copyrighted work.  This basically means it's illegal to crack protection, and to make, own, or sell devices that do so. However, there is a nastier implication.  Placing a program on a proprietary cartridge media, or an arcade board effectively controlls access to it, forcing you to buy something that can accept the media.  So dumping the ROMS removes this control from the copy!  So it would seem the DMCA makes dumping illegal.  But fear not, emufans, there's still a way.

The lawmakers rcognized that sometimes, these technological measures prevent you from using your statuatory rights under copyright law.  You legal right to make a backup is useless if you can't bypass the protection designed to keep you from copying the software!  So there are clauses in the law that state when the technological measure interferes with your rights as an end user, you are allowed to bypass the measure, in order to exercise your rights.  And you are allowed to own and manufacture devices to help you do so, provided that you only use them to take advanytage of your rights, such as operational adaptation, archival backup, or fair use, though you cannot sell them.  Aha!  Dumping a game for an emulator is fair use! So you can manufacure a device that can dump the game.  Can you do this?  Certainly.  Ever heard of an IO-58?  It's a cartridge dumper that you can download the schematics of and build yourself. It's not illegal to distribute the schematics, just the dumper itself.  So you can get the schematics, and build the dumper, as long as you only use it for legal purposes.

SO much for the conclusion that dumpers are illegal for you to own.  They aren't as long as you only use them for legal purposes.  

With these relevations, the contributiory infringement charge against emulator authors also goes up in smoke. Because it's possible fo rend users to obtain legitimate dumps the charge that emulators are primairily a tool of infringement is shown to be false.  This makes emulators legitimate multipurpose devices, which can be used either legally or illegally.  The authors are safe. :)

And finally, I take on the final argument, that you can't legally use games on a platform they are not licensed for. This is utter hogwash.  While it's true that many EULAs state something to that effect, this statement is not legally binding. The reason is ecause that clause is anticompetitive.  Emulators are legal.  They violate no copyrights in and of themselves, and they are not conributors to copyright infringement.  As such, they are legitimate competitors to the original console/arcade.  An End User License that prohibits use with an emulator would therefore be a barrier to legitimate competition.  This makes that part of the license invalid, though it does not invalidate the rest of the license.  ANY "use only on licensed hardware" clause cannot be legally enforced.  So much for that claim.  Playing import games falls under the same category. Even though, the game is not licensed for use out of the country, personal, non-profit, non-commercial use is fair use, by tests 1 and 4, and in this case also by test 3 (no copy is made).  Commercial use of the game, other than selling or buying the  media itself, would be illegal.

Now, I will answer some questions which may or may not have occured to you.  

1) Does inviting a friend to play a game on an emulator with you make it illegal?  No more than inviting a friend to watch the show you taped, or having a friend listen to the music tape you made of your CD in your car.  It's okay, because it's still private use, and not public use.

2) Can you download a ROM image if you own the original media?  NO, unfortunately.  The instant the dump was put into a forum for commerce, which any FTP or web site qualifies as, it became infringing, and you cannot turn an infringing dump into a legal one by any means.  You have to make your OWN non-infringing dump, eventhough it's more convenient to download the infringing one. :(

3) What if the site says it's a public library, from which you "check out" ROMs?  Makes no difference. :(  To check out a ROM, it would have to delete it's own copy, util you returned it.  Same goes for those
"checkout BBSes."  The disclaimer that you "must delete at the end of the checkout period" does not provide the BBS *any* legal protection.

TO sum up, dumping a ROM for use with an emulator is legal, under both statuatory law and case law precedent.

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Fair Use and ROMs by Chuck Cochems, copyright © 2000 Zophar's Domain, all rights reserved.
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