Emulation:  Right or Wrong?
aka "The EmuFAQ"

FINAL EDITION

copyright (c) 1999 Sam Pettus (aka "the Scribe"), all rights reserved

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The Question of ROMs
by Chuck Cochems
special guest writer

Freedom and independence will survive capitalism.
- Rush Limbaugh, The Rush Limbaugh Show, 13 January 2000, 13:56 CST


SICK AND TIRED

     Comedian Bill Cosby has a routine in which he talks about the way he and his little brother Russell would often aggrevate his exasperated mother .  "I'm sick of this," she would roar at them, and "tired always followed sick," Bill Cosby would add with a grin.  "Sick and tired.  Sick and tired.  I am sick and tired ...."  You get the picture.

You know, one day mother started into it.  She said, "You make me sick."  "And tired," I finished. [long pause while the audience laughs]  I don't remember anything that happened that day.
You want to know something?  I'm sick.  I'm tired, too.  I'm sick and tired.  I'm so sick and tired of all this.  No, I'm not having any trouble remembering what this is.  I know quite well why I'm sick and tired.  Do you want to know why I'm sick and tired?  Well, I'll tell you.
     I'm sick and tired of certain vendors who've made a nasty habit of screaming, "Software piracy!" every time they think something threatens their precious profits.  I'm sick and tired of the way this crowd has used the notion of software piracy to bash the emuscene every chance it gets.  I'm sick and tired of corporate fat cats who think emufans are always out to burn them, that we somehow have the means and the might to steal millions of dollars from them just because we want to play our games on somebody else's hardware.  I'm sick and tired of pointy-headed company mouthpieces who flatulate position papers and policy statements without backing them up with hard facts, who often condemn a thing without really taking a close look at it, who claim that any little thing we do to make our life on the emuscene easier supposely steamrolls over their so-called "intellectual property rights."  I'm sick and tired of these twisted toads for calling out the SWAT teams every time I try to play a game that I legitimately purchased under emulation on my personal computer instead on their precious little console.  That's why I'm sick and tired.
     Had enough?  Too bad.  I'm just getting started.
     The emuscene went gonzo with excitement whenver Sony got their face rubbed in their own sludge by the U.S. Court of Appeals, and I don't blame 'em one bit.  I was celebrating right along with 'em.  Sony's screwup has made unlicensed emulation legal for all time.  They'll never take that away from us, and they'll have a helluva fight on their hands if they so much as try.  That was the first mountain we had to climb, and thank goodness it's behind us now.  It's time to climb the second and even bigger mountain standing in our way.  You know the one I'm talking about.  It's that dark peak right in front of us which has loomed over the modern emuscene ever since the Careless Gamer released MegaDrive to the public.  It's now my turn to lead the quest for truth up the slopes of this final obstacle, and I intend to surmout and conquer it once and for all.
     What am I talking about?  I'm talking about ROMs.

CODE IS CODE

     We all know what ROMs are.  They're the old programs that you run on an emulator.  These are either binary dumps of code originally stored in ROM (hence the name) or image files of old disks in obsolete formats.  A run-of-the-mill personal computer (PC for short) can't handle the originals directly without specialized adapters, and these cost a lot of time and money to cook up.  It's a whole lot easier to convert that old package of programs into somethat that my PC can handle.  Besides, there will come a time when that old system and that old program base is going to up and croak.  You won't be able to use it anymore unless you've converted it into a ROM for use with an emulator  That's not me talking, that's the physics of entropy.  That is the chief reason why ROMs exist, and that's also the cause of the problem.
     It's nice to know exactly where the vendors come up with their silly and cockamamie "exclusive rights" claims.  I didn't know until last year that this falls under a specific provision of copyright law, 17 USC 106.  Let's take a look at it, 'cause I want to make sure everybody's on the level before I go on.

Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following ... (emphasis added - ed.)
Now let's home in on section 2 of this provision, because here is where the problem lies.
         2)  to prepare derivative works based upon the copyrighted work
Now compare that with this extract from Nintendo v. Computer & Entertainment:
Changing the format ... from the original cartridge to a disk format also violates Nintendo's rights to prepare derivative works under 17 USC 106.2.
That, in a nutshell, is the primary argument of Nintendo and the rest of their ilk.  They claim the absolute right of derivative works, which just so happens to include ROMs.  You can't so much as sneeze on their programs without orders signed in triplicate, sent in, queried, sent back, revamped, sent in, sat on for a decade or so, and then lost in a filing cabinet stuck in a forgotten warehouse somewhere in the frozen tundra just outside of Vladivostok with a big fat padlock on the door.  Performing a format change to a program that you have legitimately obtained?  God forbid!
     One of the things that has always irritated me about this whole issue is the unequal treatment given the two different types of ROM.  Nintendo, Sony, and their kind scream bloody murder every time the issue of ROMs is raised, and they've managed to convince the courts that converting code from one type of storage to another is unjustified due to the format change involved.  Well, I got news for you.  Code is code, damnit, regardless of the format!  They bitched just as much whenever folks began making cart adapters that would let you run their carts on other vendor's consoles almost two decades ago, and now here they are again with the same old crap argument.  Well, what about disk image ROMs?  Very few vendors seem to object to them, and when they do, it's that tired old scratchy "software piracy" Victorola creaking away in their press releases.  It seems that there are things you can do with software-based ROMs that you can't do with firmware-derived ROMs, or so we're being led to believe.  I'm told that it has to do with the vendor's intent as to the format that they want their program presented, or something like that, but that seems awfully weak to me.  As I said, code is code.   It doesn't matter one whit if it's in hardware or software, if it's stored on permanent or non-permanent media, or whether or not it gets changed from one format to another.  If you're going to preserve that vendor's precious program, then you have to preserve the code itself.  The format doesn't mean a damn thing, so long as you can still maintain the integrity of that code.  That's one of the consequences of the Digital Revolution - we can change formats at whim and still have a working program.  Attempting to lock a program into only one specific format is a useless gesture, because you can still access and execute that code irrespective of its format.  A difference that makes no difference is no difference.  Data is data.  Code is code.
     While I'm at it, let's take a look at this business of derivative works, shall we?  If you'll glance back up at the opening lines to 17 USC 106, you'll see that I've emphasized the opening line.
Subject to sections 107 through 120 ...
What this means, in a nutshell, that a copyright owner's right to a derivative work is not absolute.  Not duplication, not derivation, not adaptation, not performance - none of them are absolute.  That's why the vendors have had to cook up this EULA nonsense - they're trying to force restrictions on you which, in most cases, they have only a limited right to do and in some cases (reverse engineering, etc.) absolutely no legal right to do.  So you see, these so-called "exclusive rights" that Nintendo and other proprietary-minded vendors aren't so exclusive after all.  In fact there are some well-known exceptions to these rights.
     It is a fact that certain forms of derivative work are not only permissible, but in some cases absolutely essential for proper or intended use of the program in question.  This is possible because of that opening line to 17 USC 106, and is acknowledged in other parts of copyright law such as 17 USC 117's "operational adaption" clause".  Need a good example?  How about that overgrown behemoth of an operating system, Microsloth Winblowze?  In the old days, you used to get it on a set of floppy disks.  Nowadays, you get it on a CD-ROM.  In order to make it work, in order to run it, in order to use it in the way the vendor intended, you have to install the thing to your computer's hard drive.  As part of this process, it unpacks itself and sets itself up to work with your particular system.  The end result is a set of code residing on your hard drive that bears little physical resemblance to that code sitting inside your disks or CD-ROM.  You now have a derivative work that has gone through one helluva format change in more ways than one.  Yes, that's an authorized derivative work - Microsoft gives you permission to do this in their EULA - but there are other similar cases in which such works are unauthorized.  What about servicing a computer?  Copyright law says you can make such derivative works all day long in order to service that machine, and that's not infringing (17 USC 117.c).   What about the Game Genie case (Nintendo v. Galoob)?  The Court of Appeals said that the Game Genie produced derivative works of NES videogames, but they also said that such works were ultimately non-infringing due to their temporary nature - they vanished once you turned off the console.  In fact, there are several different forms of derivative work that are deemed to be noninfringing - vendor-approved copies, servicing copies, archival copies, intermediate copies, and "gameplay enhanced" copies.  I wouldn't be surprised if there are still more out there that I've missed.  Yes, this whole business of derivative works isn't as cut and dried as certain vendors would lead you to believe.

A NEW APPROACH TO AN OLD PROBLEM

     So how do we get around this quandary?  How can emufans find a legitimate means of coming up with ROMs of their legitimately purchased games for use with an emulator?  That's the US$64,000 question, isn't it?
     You know, I must have spent at least two months or more arguing with the Scribe on this very issue, and believe me, I tried all the regular arguments.  Backup theory ... public fair use ... development purposes ... operational adaption ... and so on.  He shot me down every time because of that silly, way-too-narrow definition of "derivative work" that is embodied in copyright law (17 USC 106.2).  Yes, I was getting sick and tired of this, too.  Why was he doing this?  Wasn't he supposed to be the emuscene's best friend?  Our original discussion ended when he cut me off, claiming that I was positing dogma instead of arguing logic.  I wasn't being dogmatic, I was just trying to prove my point.  After a while, though, once things had cooled down, I began to re-read our arguments, and something that he said caught my eye.

If the emuscene is ever going to find justification for ROMs, cart dumps in particular, then they're going to have to find a new approach.  None of the old arguments will work.  Nintendo, Sony, the IDSA, and their allies have made sure of that.  I think you're going about this the wrong way.  If there is an answer, then I believe you'll find it in the Betamax case.  That's the key to solving the problem.
He's right, you know.  We can't keep on defending ROMs the old way.  Those defenses won't fly in court.  We, the humble emufans, plain and ordinary average users, don't enjoy the same legal rights as do the emucoders.  They're developers.  They get to enjoy developer rights.  We're users.  We don't.  I guess it's time we stopped  bitching about it and get used to that sad fact, 'cause its not changing anytime soon.
     "So what can be done about it?" you ask.
     Well, I think something new is needed, and I think I've figured out what the Scribe was driving at.  It's going to require us to change our whole way of thinking about how we users can justify our ROMs.  "You must unlearn what you have learned," Yoda tells Luke in The Empire Strikes Back.  We're going to have to forget about the old defenses, and go with something new.  You want to know something?  I know how to do it.
     "What is it?!" you eagerly ask.
     The personal use defense.

THE BETAMAX CASE

     In 1983, the U.S. Supreme Court issued a landmark ruling in the case of Sony v. Universal whose implications have dogged the monpolistic intentions of many a proprietary-minded vendor ever since.  The so-called Betamax case is of particular interest to those looking for a legal means to make and use their own ROMs, because it is here where the concept of personal use was first defined.  The case was argued on the merits of the fair use defense (17 USC 107), so I reproduce the statute for your convienence.

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 non-profit educational purposes.
  2. the nature of a copyrighted work.
  3. the amount and substantiality of the portion(s) used in relation to the copyrighted work as a whole.
  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.
     For now, I want you to sit back and watch the playback as the Supreme Court finds legal justifcation for the concept and act of personal use under the fair use statue (17 USC 107) of copyright law.  In this particular case, we are dealing with the unauthorized recording of a live television broadcast by use of a potentially infringing technology, the Sony Betamax videotape recorder, in a manner other than that intended by the program's vendor (playback at a later time).  You're going to hear references to "time-shifting," which was the court's legal shorthand for the primary issue at stake, so pay attention.
[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 weighted 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.  Moreover, when one considers the nature of a televised copyrighted audiovisual work (17 USC 107.2), and that timeshifting merely enables a view 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 (17 USC 107.3) does not have its ordinary effect of use.
Let's be clear right now about what the Supreme Court said.  A noncommercial, nonprofit use qualifies for fair use.  All personal use is by its very nature noncommercial and nonprofit.  If you're going to go commercial, then you have to make the appropriate interpersonal arrangements.  If you're going to make a profit, then you've got to have some form of commercial enterprise, legal or not.  The concept of personal use is based on the principle that all activity involved rests solely with you.  No one else is involved - not you family, not your friends, not your co-workers, not your email recipients - no one except you and you alone.  Since no one else is involved, personal use cannot be considered commercial because you are lacking the one thing that drives commercial activity - the existence of a forum for commerce.  You can't have a forum when there's only one participant; hence, all personal use is by its nature both noncommercial and nonprofit.
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" (17 USC 107.4).  The purpose of copyright is to create incentives for creative effort.  Even 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 use would merely inhibit access to ideas without any countervailing benefit.
Sounds just like what a lot of us emufans of legitimate purpose have been going through these past two years, doesn't. A use that has no demonstrable effect upon the market ... or value ... need not be prohibited....  That's part four of the fair use test - the one that Raymond Nimmer said was the most important.  We've already passed the rest of the test, and you know as well as I what that means.
     It doesn't stop just there, though.  The Supreme Court isn't finished with its discussion.  Let's read on, shall we?
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 users 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 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 shown 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.
The Supreme Court realized that personal use is an entirely different matter, one quite different from commercial use, when it comes to potential intellectual property infringement.  They acknowledged that personal use has the potential use to infringe, but not nearly as much as commercial infringement.  Noncommercial uses, such as personal use, only have two hurdles to jump - "the particular use is harmful," and widespread activity "would adversely affect the potential market."  This is why Bung lost their court battle with Nintendo over the Doctor V64 (Nintendo v. Bung), since Nintendo was able to prove that the device, while advertised as one that had personal uses, could obviously be used for infringing commercial purposes.  I'm going to come back to cart dumpers a little later, but just remember this.  Commercial use will always fail to jump these twin hurdles.  Personal use is an entirely different manner.  If a vendor wants to void the personal use defense, then it has the responsibility of proving potential harm.  Sound familiar?  It ought to.  It's not your responsibility to establish noninfringement.  It's the vendor's.  They've got to prove that your activity goes beyond mere personal use.
     So what happens if the vendor can't prove potential harm from personal use?  Well, that very thing happened in the Betamax case.  Let's see what the Supreme Court had to say.
In this case, respondents failed to carry their burden [of proof] with regard to home time-shifting.  The District Court described respondent's evidence as follows:  "Plantiffs' experts admitted at several points in the trial that the time-shifting without librarying would result in 'not a great deal of harm.'  Plantiff's greatest concern about time-shifting is with 'a point of important philosophy that transcends even commercial judgement.'  The fear [was] that with any Betamax usage, 'invisible boundaries are passed: 'the copyright holder has lost control over his program.'"
Universal and its allies were arguing that they were losing control over their rights to their works - specifically, the time that they chose to dictate when and how their television programs could be viewed.  Fortunately, the high court didn't buy that argument.
Most of the plantiff's predictions of harm hinge on speculation about audience viewing patterns and ratings, a measurement system which Sidney Sheinburg, MCA's president, calls 'a black art' because of the significant level of imprecision involved in the calculations.
Whoa!  Vendors cannot speculate about the potential harm of infringement!  Why?  Becasue speculative damages cannot be predicted with any accuracy!  They have to provide reasonable proof, not wild assertions.  Remember, one of the reasons Sony lost its lawsuit against Connectix was that it failed to prove infringement (Sony v. Connectix).  Their own presumptive evidence was both contradictory and inconclusive, and the Court of Appeals nailed 'em on it.  That means that the broad policy statements about "potential market impact" for which certain vendors (a-hem!) are just that - statements.  They don't establish or prove a damn thing unless they provide the facts to back them up.
     The lesson to be learned from the Betamax case is that personal use is justifiable fair use.  Remember, our justice system requires a preponderance of evidence in order to prove civil liablility.  Simple and logical arguments concerning the perceived infringement will find in favor for or against insofar as the fair use test is concerned.  When you apply the fair use test as the law requires, weighing all four parts equally, then the noninfringing nature of personal use becomes obvious.  Only the first and last parts of the fair use test (purpose and effect) really need to be considered, because the other two (nature and amount) are pretty much "cut and dry."  Even when these remaining two factors are considered, it can be shown that personal use meets these requirements.  The establishment of personal use does not constitute a preponderance of evidence against a finding of fair use.

     Alright, now that you hopefully understand the legal background, it's time to take the big leap.  It's time to lay out the personal use defense for ROMs in easy-to-understand terms.

  1. Copyright law says that I have the legal right to archive computer software that I have legitimately obtained (17 USC 117).  It says nothing whatsoever about preserving the original format of the software in question, nor does it require that I have to follow the vendor's intent in this matter.  I can make my backup on any media and in any format I want.  So much for disk image ROMs.  Just because it's a disk image doesn't mean it's not a backup
  2. Case law has demonstrated that an uncirculated, unauthorized derivative work based upon a program originally stored in ROM can be noninfringing (Nintendo v. Galoob).  As long as I paid for the original, and as long as that noninfringing derivative work remains with me, then no harm is done to the original vendor.  So much for binary dump ROMs.  They are not automatically infringing.
  3. Both copyright law and case law recognize a user's need to modify a given computer program in order that it may perform as designed irrespective of vendor desire (17 USC 117, Vault v. Quaid, Narrell v. Freeman).  Such works are certainly derivative, but the courts have ruled them to be noninfringing.  So much for the vendor's infringement claims.  Just because a derivative work is made doesn't automatically mean it's infringing.
  4. The U.S. Supreme Court has ruled that the personal use of copyrighted material, irrespective of how those copies are made, or in what format they are stored - even if it differs from the original, is noninfringing (Sony v. Universal).  Personal use is noncommercial use.  The Supreme Court made the case that noncommerical use is noninfringing, so long as it does not cause harm to the vendor.  Personal use does not cause harm to the vendor by its very nature - the vendor doesn't know about it and has no access to works derived under personal use.  They can only speculate about its possibly infringing nature, and they are forbidden by the Supreme Court from engaging in speculation.  If a ROM is made for the express purpose of personal use, then it qualifies for protection under the high court's Betamax decision.
Ergo,
ROMs made for personal use are noninfringing!
Q.E.D.
PRACTICAL APPLICATIONS

     So now that we've established the legality of making ROMs from legitimately obtained originals under the concept of personal use, how do we go about actually doing it?  Again, I quote from the Supreme Court's ruling.

One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.
Well, guess what?  The Copright Act has been amended to include the very "flat prohibition" that the court noted.   It's not as simple as you might think to make your own ROMs due to the new law in town, the one that the Clinton Administration shoved down the users' throats with the gleeful cooperation of the vendors.  What am I talking about?  I'm talking about the Digital Millenium Copyright Act (DMCA), the 1998 amendment to the Copyright Act, and we have the Scribe to thank for informing us about an issue that has now become cold reality.  It's the first part (17 USC 1201.a.1-3) that concerns us the most, and I reproduce it straight from the EmuFAQ.
    1.  No person shall circumvent a technological measure that effectively controls access to a work protected under this title... [rest omitted - ed].
    2.  No person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof, that --
    A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.

    B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title.

    C) is marketed by that person or another acting in concert with that person, with that person's knowledge, for use in circumventing a technological measure that effectively controls access to a work protected under this title.

    3.  As used in this subsection,
    A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure without the authority of the copyright owner.

    B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to that work.

The law deals specifically with technologies that deal with audiovisual duplication and distribution, such as the old Macrovision scheme used to copy-protect commercial videotapes.  Is it any wonder that the vendors have now started to apply this very same law to computer systems and their respective program bases?
     Before Slick Willie signed the DMCA into law, it was perfectly legal for us users to go out and buy the same equipment that the developers were using - such as ROM analyzers, cart dumpers, and disk duplicators - and then burn away.  That's not the case anymore.  You set up a place that deals in this stuff, new or used, and rest assured that the vendors will have the SWAT teams breaking down the door in record time.  Why?  It's all because of the DCMA, that's why.  We may have the legal right under personal use to make our own ROMs, but nobody has the legal right anymore to provide us with the required equipment.  If you interfere with vendor control in any way, then you're breaking the law.  Talk about a Catch-22!  You know, the Supreme Court warned us about such laws, and I quote from the Betamax decision.
Whatever the future percentage of legal versus illegal home-use recording might be, an injunction which seeks to deprive the public of the very tool or article of commerce capable of some noninfringing use would be an extremely harsh remedy, as well as one unprecedented in copyright law.
If I'm reading this right, what we have in the DMCA is an unjust law.  It goes against the very nature of copyrights, and sets up a fundamental contradiction in United States intellectual property law.  There's a whole discussion we can go into on that subject, but I'm not going there.  I'm not a legal scholar, and that's not my purpose.  My purpose is to provide you with a legal means of making your own ROMs, and that's what I'm about to do.
     Never forget that you have a legal right to personal use of computer programs that you legitimately obtain for your own purposes.  By the way, that also gives you the right to ignore the DMCA.  "WHAT?!" I can hear the vendors screaming.  "Yes," I quietly respond.  The intent of the DMCA is to control potentially infringing technology of a "limited commercially significant purpose."  That one word, commercial, is all the justification we need to bypass the DMCA.  What we are engaged in is personal use, not commercial use.  There's all kind of privacy rights arguments that come into play here, but the gist is that if I'm engaged in personal use, which the courts have already deemed to be noninfringing, then the DMCA does not apply to my activities.  I can do whatever the hell I what, whenever the hell I want, and however the hell I want to do it because I'm engaged in personal use, not commercial use.  The DMCA doesn't affect me in the slightest.
     So how do we make our ROMs?  We can't go out and buy a dumper or copier.  The DMCA specifically forbids people from distributing that kind of stuff.  There's nothing in there that says I can't obtain the plans for such devices and make them myself in order to enable my own personal use.  That's the key - personal use.  Personal use is noninfringing, according to the Supreme Court.  The DMCA does not apply to personal use.  I can go to the library and look up the data I need, or I can get it from friend, or I can just as easily download it from the Internet. I can build all the homebrew ROM analyzers, cart dumpers, and disk duplicators that I want all day long, so long as their operations are strictly limited to personal use.  If anybody's liable under the DMCA, it's the people who distribute such stuff - not the recipients.  That means if I so much as give one device away, or handoff my plans to someone else, then I've voided my right to the personal use defense and stand naked under the shadow of the DMCA.  But, hey - I'm not going to do that, am I?  Of course not.  I'm not that stupid.  If you're going to arrest somebody, then go arrest my local librarian.  She has shelves full of books on computers and electronics that you might find violate the DMCA.  Circumvention indeed!
     Is it possible to build your own homebrew devices?  Certainly.  The information is out there in lots of places, just waiting to be tapped by you.  For example, homebrew hardware hacking is what produced the IO-58, one of the best homemade cart dumpers ever invented.  Of course, this device became the darling of many a software pirate group who couldn't afford hundreds of dollars for a commercial cart dumper, and the vendors will be quick with their "Software piracy!" mantra once they find somebody using one.  I ask you, though, if you bought the IO-58 at your local computer store, would you be breaking the law?  Absolutely, under the terms of the DMCA.  If you downloaded the plans from the Internet, would you be breaking the law?  No.  If you built your own IO-58, would you be breaking the law?  No.  If you dumped your very own carts, ones that you bought and paid for yourself, for use on an emulator, would you be breaking the law?  No.  If you loaned your IO-58 to a friend, would you be breaking the law?  Yes.  If you gave your friends copies of the IO-58 plans, not to mention a ROM or two in the process, would you be breaking the law?  Yes.  You voided your right to the personal use defense the minute distribution became involved, whether it was for the hardware or software side of things.  Personal use ends where commercial use begins, and the last two instances are commercial use according to both the law and the courts.  The same argument holds true for other such devices and applications, such as disk image creators, format transfer or conversion programs, media duplicators, and so on.  If it weren't true, then no perosnal computer would have any kind of storage device at all.  All in theory violate the DMCA's controlled access provisions, and to apply these to a product intended for personal use is as ludicrous as it sounds.
     Now before I finish, let remind you of one thing.  Personal use doesn't give you the right to download ROMs.  You have to make them yourself.  This is one area in which I agree with the Scribe, because neither statutory law nor case law permit anything else.  I know a lot of you will hate this, as it's a lot more convienent to download the ROM you need instead of making it yourself, but there's just no other way around this fact. The only legal way under the personal use defense to own a ROM for a program that you legitimately obtained is to make it yourself.  If you don't, then you're dealing in a distributed work, which means that it could be an infringing derivative copy under both 17 USC 106 and 17 USC 1201.  The only other way around this is to get permission from the copyright holder.  I'm sorry, but them's the facts.  Just be glad that there is a legal way for you to come up with your own ROMs.  It's a narrow and treacherous path, for sure, but it beats having no way at all.

     As for using our newly made ROMs, what's the issue?  None.  That's what personal use is all about.  These are my ROMs, made from my legitimately acquired games, using my equipment in the privacy of my home for my use only.  I'm not going to sell them or give copies to friends.  I'm defintely not going to upload them to the Internet.  So I say again, what's the issue regarding the personal use of such ROMs?  None!  Period!  That's the beauty of personal use!  The key word is personal.  These ROMs are made for personal use, not commercial use.  No intent to distribute, no intent of profit - nothing.  If I was going to do anything with them other than that, then I couldn't defend my actions under the concept of personal use.  It's no longer personal.  I'd have to use the concept of public use instead, and that's a road down which the courts have pretty much said we average users can't travel.  We're not developers.  We're not emucoders.  We're users - acquiring, operating, and sometimes adapting these programs for our personal use.  Again, quoting the Supreme Court,

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.
So tell me, does my personal use of ROMs derived from my legitimately purchased games qualify as "a particular use [that] is harmful" or one that "would adversely affect the pontental for that copyrighted work?  The answer is NO.  I've paid for the game, made the ROM on my own equipment, and I'm not going to pirate it to everybody in sight.  No infringement.  None. My personal use doesn't harm the vendor's potential market, and do you want to know why?  Because the program's already bought and paid for, and all copies I make stay with me.  That's why.
     You want to know something else?  Personal use of ROMs also fall under the ten rights of the software user in at least three different ways.  Here's what they are:
Running under emulation:  As we all know by now, emulation is perfectly legal.  It is a fact that many emulators are literally works-in-progress and require ROM forms of programs in order to work.  It is a fact that developers and emucoders are the only ones who currently have the legal right to make as many ROMs as they need of whatever programs they want for their various projects (Sega v. Accolade).  Guess what?  I'm not an emucoder.  I'm not a software developer.  Why can't I make a ROM from a game that I've already bought or obtained through other legitimate means?  I have the original sitting right here, and I have the means to make the ROM.  I'm not about to start up a software piracy operation.  All I want to do is run my legitmately obtained program on an emulator, which is my legal right.  As long as it's going to be for personal use, then I have the right to make a non-infringing ROM of that program (Sony v. Universal) and run it on my non-infringing emulator (Sony v. Connectix).

Operational adaption:  Copyright law says that I can adapt a program as need requires in order to get it to work properly on my system (17 USC 117.a).  The vendors say I can't make ROMs of my own software because adaption is their exclusive right (17 USC 106.2, c.f Nintendo v. Computer & Entertainment).  Tell me something, Mr. Vendor - how else am I going to be able to use my legitimately purchased software on an emulator, which is my legal right (Sony v. Connectix), if the emulator that I want to use won't work with anything except ROMs?  Huh?!  Tell me!  You can't, can you?  Well, I can.  It's just like what Sony did when they invented the Betamax.  They had to come up with a way to record a live broadcast of a television program so the average viewer could have a convienent means of watching it at a later time.  The Supreme Court said that was perfectly legal - i.e., no infringement was involved (Sony v. Universal).  That videotape recording was for personal use, not commercial use.  TV shows are broadcast to anybody with the equipment to receive them, but you have to record them onto magnetic media, such as a videotape, in order to watch them later.  Is it just me, or does that sound awfully like that dreaded "format change" that certain vendors are always bitching about as their "exclusive right?"  The Supreme Court said that the format change from live broadcast to videotape was perfectly legal for noncommercial use.  Their ruling has been affirmed in other court cases involving personal use of other media, too, such as the Rio case (RIAA v. Diamond).  It stands to reason that any format change involved in making my own ROMs from my legitimately obtained software for my own personal use is also perfectly legal.  It is a legitmate, noninfringing operational adaption in order to exercise my legal right as an average user to run that program under an emulator.

Freedom from vendor constraint:  One of the most curious rights on the list is being able to use a program "in a manner which the original vendor may not have intended" (Narrell v. Freeman).  Let's face it - these guys never intended for their programs to be used in an emulated environment.  It is a testament to the emucoders that many of these programs even work at all, given such conditions.  While the vendors may have not intended to provide their programs to the emuscene, they can't stop the emuscene from enjoying them just as much as if emufans were using the intended platform instead.  I have the legal right to operate my software irrespective of vendor desire, so long as I do not infringe upon their rights.  My personal use of ROMs does not infringe upon their rights, because my actions are strictly personal.  What I do in the privacy of my own home has no impact on their precious market share.  I'm not affecting that market by my personal use, either directly or indirectly; therefore, my personal use does not infringe on their rights as a vendor.

     "Hey now, wait just a doggone minute!" scream the offended vendors.  "My EULA say you can't do thus-and-so with my product.  That's a legal contract, bub, and you're bound to honor it!"  May I humbly remind the vendors that any overreaching provision of a EULA, one that violates my rights as a user or potential developer, have no legal grounds (Vault v. Quaid, Lasercomb v. Reynolds) and may therefore be ignored?  Such provisions are often put in for the sole purpose of raising a barrier to legitimate competition, like, say, using an emulator instead of the actual intended hardware.  I'm sure you've seen phrases like, "You may not rent or lease ..." and "You may not reverse engineer ..." and "Copying is illegal and strictly prohibited ..." in many EULAs.  Newsflash, vendors - all of these activities are specifically permitted by copyright law, so any EULA clause to the contrary isn't worth the effort you took to set it down.  Federal case law has ascertained that overreaching EULA provisions erect an arficial barrier that is against the spirit of copyright, since the end result is an absolute monopoly over your product's market - one which copyright law does not and cannot confer.  Federal case law trumps your precious EULA every time, sweetheart.  The same holds true for personal use.  I have a legal right to personal use; therefore, I can do whatever the hell I want with your program, even if it violates that EULA, so long as I remain within the bounds of personal use.  Your EULA says I can't change the format of your program, which may be required so I can run it on an emulator?  Well, to hell with your EULA!  I most certainly can and will, because I have the legal right to do so under personal use.
     And if that's not enough, here's the haymaker.  I remind you of what the Supreme Court had to say about the concept of personal use.  I quote directly from the Sony v. Universal decision docket.
Any individual may reproduce a copyrighted work for a "fair use;" the copyright owner does not possess the exclusive right to such a use.
Well, well, now, how 'bout that?  I guess developers aren't the only ones who are entitled to the fair use defense after all.  Personal use qualifies as fair use, and is a protected act under the Betamax ruling!  Very interesting ... very interesting, indeed.  I hope the Scribe is reading this, because he may end up having to rewrite all that stuff in the EmuFAQ about ROMs.
     Of course, you know certain vendors are just going to hate this.  They're going to say that I'm making it all up, that I'm crazy, that I'm wrong, or some such silly crap.  Well, they'll be full of it, and you know it, because you know I'm right.  Deep down, you know I'm right, even if some of you won't admit it.

IN CONCLUSION

     With that, my diatribe is over.  I've proven my point.  There exist a legitimate means for the average user to make their own ROMs from their own leigitmately obtained programs, and that is the protected freedom of personal use.
 

The personal use defense for ROMs
It is not an infringement to make or use any kind of ROM with an emulator, provided that its source is of legitimate origin and such actions are strictly limited to personal use.

So stick that where the sun don't shine, Mr. Repressed Vendor!  That is, assuming you can get it past the royal wedgie I've just given you.  You can scream, "Software piracy!" all you want, but it doesn't make one damn bit of difference.  Not one.  As long as I'm making my ROMs for personal use, there's not a damn thing you can do about it.  If you don't believe me, then go argue with the Supreme Court.
     You want to know something?  I own a Sony PlayStation.  I own a couple of Nintendo consoles, the NES and Super NES.  I own lots of original titles for these three consoles.  Amost all emufans out there are in the same boat.  Guess what?  I can't take them with me everywhere I go.  I can't enjoy your product experience whenever and wherever I want if I'm limited by your proprietary desires.  Thanks to the Supreme Court, I am no longer shacked by your monopolistic constraints.  Emulation has opened a whole new door whereby I can personally take pleasure in your products, and I'm not afraid anymore to assert my rights.  The societal gain of fair competition, in this case emulation, outweighs any potential loss that you might try to claim.  You want to keep bitching about it?  Go right ahead!  See if I care.  In the meantime, though, I'm going to enjoy your products via my legal right to experience them through emulation.  Good luck pressing your case!  You're gonna need it.

REFLECTIONS

     l will not dispute the claims of most vendors that they are often the victims of software piracy.  I will not dispute the fact, proven by certain vendors, that so-called "console copiers," or "cartridge backup devices," or "high-speed disk duplicators" sold on the market as such are in fact devices that are frequently used and often implicitly advertised for the express purpose of copyright infringement.  Most of the people who buy such devices do so with the intent to pirate.  Such devices have no legitimate role in producing noninfringing archival copies, and such has proven itself in several notable court cases.  It is an undisputable fact, however, that these and other legal devices that share similar design and operation can be used for entirely legitimate purposes.  They can be used by developers for the express purposes of reverse engineering and program development, and that is a right protected by law.  They can also be used to make noninfringing personal copies of legitimately obtained games, so long as these meet the criteria for personal use.
     Hopefully, I have explained to one and all what personal use is all about, and all parties concerned now know that it can in no way infringe upon either the rights or marketability of a vendor's product.  ROMs made for personal use may be derivative, but they are not infringing.
     Anybody who is stupid enough to deal in illegitmate ROMs for any reason is a pirate and deserves to be treated as such.  It should be obvious by now, though, that an emufan who follows the rules and generates a ROM for personal use neither breaks any law nor causes irrepairable harm to its original vendor.  The U.S. Supreme Court long ago affirmed the principle of personal use as noninfringing (Sony v. Universal), and it works just as well for digital technology as it did for analog devices.  The making and usage of a ROM can qualify for the Supreme Court's definition of personal use along the lines I've just finished discussing.  This never has been nor never will be infringing, and you can take fact that all the way to the bank.

- Chuck Cochems
*                    *                    *                    *                    *                    *

INTROSPECTION

     Time and again, average everyday emufans has tried various ways of defending the ROMs that they want to use with their favorite emulators.  All of their arguments have failed up to this point.  While I must admit that I have certain problems with some of Chuck's assertions, my gut instinct tells me that he may be on to something here.  It is a fact, as he asserts, that the U.S. Supreme Court has already laid the basic foundations for the theory of personal use in the now-infamous Betamax case (Sony v. Universal).  It is a fact that the personal use defense has already been applied successfully in other venues, such as the audio recording industry (RIAA v. Diamond).  Whether or not the courts will recognize its validity with regards to ROMs remains to be seen.
     Let us assume for a moment that a personal use defense does exists for ROMs.  If so, then what legal bounds would limit its potential use?  Only one, insofar as I can see, but it is one that Chuck did not deal with in depth during his eloquent and impassioned arguments.  I have discussed the matter with him, though, and it is one on which both he and I are in complete agreement.  Personal use cannot and will never provide justification for nor a viable legal defense against unauthorized distribution of protected works.  This fact is an inherent part of its makeup irrespective of the material involved, as the Supreme Court's dissenting opinion in the Betamax case made clear.  Justice Blackmun notes,

I am aware of no case in which the reproduction of a copyrighted work for the sole benefit of the user has been held to be fair use.
While this was written back in 1983-84, and such cases have indeed appeared for other forms of media, it still holds true today insofar as ROMs are concerned.  You see, distribution implies that you are operating in a viable forum for commerce.  According to current legal interpretation, a "viable forum for commerce" exists whenever you have two or more parties engaged in some form of transaction.  It does not matter who (or what) the parties are, where each may be physically located, what medium of communication they employ to conduct their business, nor the material(s) involved in the transaction.  If you have at least two individuals engaged in some kind of business, then a forum exists.  The right of distribution for any copyrighted material is exclusive to the copyright owner (17 USC 106), and copyrights are the chief form of legal protection for computer programs such as ROMs.  If you engage in a forum, and the subject of your transaction is an unauthorized copy of a protected work, then you are dealing in an infringing derivative work and your right to the personal use defense is automatically voided.  Any actions you take in such a forum can only be conceivably defended by fair use, not personal use.
     "But what about the Internet?" someone will inevitably ask.  "I conduct personal business on there all the time."  I've even seen this defense attempted by some of the ROM sites, e.g. "... these ROMs are made available for personal use only ...."  While it may be true that you conduct personal business whenever you go online, let me remind you that the Internet was originally conceived as, set up to be, and operated as a public forum accessible by all for whatever business needed to be conducted.  It has has remained the core operating principle of the Internet as it has grown and expanded beyond its original academic and government uses.  This fact has been recognized by the courts (Compuserve v. Patterson) and affirmed by the federal government in a 1999 Federal Trade Commission ruling.  People have been conducting personal business in public forums ever since the days of the open marketplace, but that doesn't change the nature of the forum.  Face it - every time you sign onto the Internet, it is just like walking into the biggest shopping mall in this dimension, and practically all of the same rules and regulations apply.  You are taking part in the most expansive forum for commerce and communication that humantiy has yet devised.  What does that mean? You can't deal with unauthorized commercial ROMs on the Internet in any form, shape, or fashion.  No uploading, no downloading, no infringing links, no questionable email attachments, no "CD collection" offers or anything along those lines, no email linking or "burst" transfers, none of those curiously threaded multipart message board/news group/chat room postings (you know what I'm talking about) or the like, and definitely no "ROMz sitez."  If you do, then you're engaging in software piracy, plain and simple.  Personal use is not a valid legal excuse for defending Internet transactions of an infringing nature.
     It's also important to note the high court's reference to "librarying," which implied yet another possible voiding of the personal use defense.  From the District Court all the way up to the Supreme Court, the plantiffs' contention remained that building up large archives of copyrighted works, even if it was for personal use, could be a potential infringement.  I don't see a problem with this so long as you limit yourself to just one ROM for every original in your possession.  That's perfectly reasonable, and any court rooted in both common sense and the law will understand such usage.  That might even qualify for the backup clause (17 USC 117) if and when personal use of ROMs gains full legal sanction.  It's when you make and maintain more than one copy of that ROM that the defense begins to fall away.  The vendors could argue that you only need one ROM for that original, and having multiple copies isn't required for personal use.  Also, having multiple copies of the same ROM might be shown to void usage and distribution rights (17 USC 106), which would fall under the pitfall of "potential harm" and thus become infringing activity.
     So you see, personal use isn't the wide-ranging cure-all for ROM woes that many on the fringes of the emuscene might have hoped.  Still, it's better than nothing.  It's a start in the right direction, anyway.  Better limited ROM rights for the average user than no rights at all.  If personal use is the only legal justification available for users right now, limits and all, I say let's take the ball and run with it.  It beats having no justification at all.
- Sam Pettus
REVIEW QUESTIONS

1)   What is the single most common complaint by vendors against the production and usage of ROMs?

2)   According to your understanding of copyright law, what is a derivative work?  What do derivative works have to do with ROMs?  Why?

3)   Explain in your own words the "code is code" argument and how that applies to the creation of ROMs.  How does this apply to disk image ROMs?  To binary image ROMs?

4)   What does the Digital Revolution have to do with changing the format of a program?

5)   Is the right to make derivative works absolute?  Be sure to justify your answer.

6)   Why do developers have greater freedom to work with ROMs than do users?

7)   Explain in your own words the implications of the Betamax case, in which noncommercial use of copyrighted materials qualifies as fair use.  How does personal use qualify as a noncommercial use?  How does the Betamax case protect personal use regardless of potential infringement?

8)   Why is any argument posited by a vendor regarding perceived potential harm of an infringing use of its product without merit?

9)   State in your own words the logical proof of the personal use theory.  How is this justified under statutory and case law?

10) What single law stands in the way of a user obtaining the materials needed through commercial channels to produce ROMs for personal use?  Why was this law put into place?

11) Can the abovementioned law ever be used to prosecute personal use?  Why or why not?

12) In what ways does personal use qualify for acceptance under the legal rights of the software user?

13) Can a vendor EULA be used to inhibit or even prohibit personal use?  Why or why not?  Be sure to justify your answer.

14) Can you state the personal use defense for ROMs?  What aspects of ROMs does it cover?  Be sure to justify your answer.

15) Why is it that "ROMs made for personal use may be derivative, but they are not infringing?"

16) What potential pitfall would void a user's right to the personal use defense?  What are some various ways in which this legal tripwire might be crossed by a user?

THOUGHTS TO PONDER

1)   Is it legal for you to download a ROM, provided you own a legitimate copy of the program in question?  Why or why not?

2)   Is it legal for ROM sites to claim the enabling of personal use in order to justify their existence?  Why or why not?

3)   Is it legal for a program vendor to deny its purchasers the right to derive a ROM from that product?  Why or why not?

4)   Is it illegal for you to invite your friends over to enjoy a game that you intend to play under emulation?  Why or why not?

4)   Is it illegal for a vendor to prohibit the personal use of ROMs?  Why or why not?


Sources
Emulation: Right or Wrong? - (c) 1999 Sam Pettus, all rights reserved
"The Question of ROMs" by Chuck Cochems - last updated 11 March 2000