Getting Emulation the All-Clear 04/12/98

At the moment, there is a tremendous threat to what has become The Emulation Community. No-one can deny the legitimacy or popularity of this unexpectedly burgeoning sector of today's video games industry. Some emulate out of fondness for an obsolete computer or console system (and the games and programs that were released for that machine), others do it because they're disillusioned with the current games scene - a few do it simply because everyone else is doing it and they're curious. So what is the video games industry's opinion on this explosion in nostalgia? Well, judging from recent action by the IDSA (the group which acts on behalf of its many high-profile members such as EA, Capcom and Sega), total annihilation.

There's a lot of confusion about emulation. This is not unusual when you examine the manner in which the scene was born and raised thus far. Emulation dates back many decades, but it's only recently that the concept has attracted a mainstream following. The single most popular cause of emulation awareness in the UK was the immensely successful ZX Spectrum emulators for the Amiga and the PC (so popular in fact, that Amstrad (the owners of the Sinclair Spectrum patents and trademarks) dedicated the various Spectrum ROMs to the emulator users via the public domain) and in the US, the mania was started by the likes of Commodore 64 emulators and MAME - the Multiple Arcade Machine Emulator.

However, an emulator on its own is useless. It will behave as if you'd just bought the machine it emulates, plugged it in and switched it on. If you pick up a second-hand Commodore 64 computer today, don't expect to find any software to run on it at your local high street store - it's commercially dead and has been for many, many years. But if you pick up a Commodore 64 emulator on the Internet after reading this, you'll be able to follow countless links to software archives, within which, you'll find virtually the entire back catalogue of Commodore 64 software, ZX Spectrum software, Amstrad CPC software, Atari 8-bit software, and programs for myriad other systems all available to download freely. But is it legal?

LAZARUS's web master DeeJay99 comments: "The short answer is no. Extremists push this hard line at every opportunity. Witness the outbreak of sanctimony in the Amiga newsgroups when Lazarus announced it was in discussions with Gateway concerning alleged infringement of copyright, but the point is that it needn't be illegal if a small amount of effort is dedicated to turning the situation around." The IDSA recently forced Dave's Video Game Classics (the Internet's most popular web site dedicated to emulation with over 10 million visitors) off the web, only for it to return a week later minus the many computer, console and arcade ROM images it was most famous for. DeeJay99 again: "The IDSA, which can only act on behalf (and not necessarily on the say-so) of its members consider it piracy and technically it is. But when was the last time these ROM images were published for sale? In some cases, it's been more than 15 years, which in the eyes of emulation enthusiasts makes them "fair game". In most cases, these titles haven't ever been released by their owners in a form usable by emulators."

Is it comparable to transferring your old vinyl to CD, then? "Well, yes. But for it to be considered legal, you would need to own the original cassette, disk or cartridge (and in some cases, even the fully-fledged hydraulic arcade game cabinet) for every file you convert (and if you can't convert it because of copy-protection, then download). But what are the chances of still owning such old software ten years on? Sure, there are dedicated fans among us, but should you be denied the chance to join the Emulation Community simply because you no longer own the software you purchased years ago?" Unlike the music industry, the video games industry aren't known for re-issuing old games every 10 years, so it's not possible to even buy this software anymore. And again, unlike the music industry, the video games industry is far more careless with its back catalogue, too:

"Hi, I wrote and hold the copyright for [WITHHELD] as you can see from the credits. Unfortunately, I lost my personal copy of [WITHHELD] so was really pleased to find it on your site... Dear Lazarus, I must say I was surprised to see [WITHHELD] and [WITHHELD] on your Games pages, our copies no longer exist so your pages probably hold the last known living versions... Sirs, Congratulations on locating [WITHHELD]. As the author of this and other games listed on your page, I'd like to give you my full blessing to distribute them for free... Dear Lazarus, Having noticed that you are offering full versions of [WITHHELD] on your site, could please ask that you remove the cracked versions of these titles and replace them with these original masters... I have nothing against the fact that you are letting people download [WITHHELD] for free, also because I was paid on the spot for the job, without royalties."

(These are just a few examples of e-mails received by LAZARUS over the past year and a half.)

So, what can be done to save our software heritage? The simple answer is to preserve it, but to bodies like the IDSA, this is wholly unacceptable and they are now actively striving to close every site which carries software published by its members - no matter how old it is. Therefore, it's become necessary to try to reach a compromise with groups like the IDSA and ELSPA (the European equivalent of the IDSA) which is only possible through an organised campaign. CLEAR is the Campaign to Leave Emulation Alone (plus an "R") and Mr Bongo is its co-ordinator: "Dave's had been up for close to 2 years, had advertising from games companies, had been quoted in many magazine and newspaper articles and got millions of hits - if it wasn't safe, then nobody was, and if nobody was safe then the whole emu scene was in peril. Lots of people were moaning about it, but nobody seemed prepared to actually try to do anything, so we decided to have a go in the absence of anyone else. 6000 hits for a very basic site in the first few days, and a lot of great support from other emu sites, showed that lots of people cared enough to join in. And that was - disappointingly - without Dave's, or the other biggest site Emu News, bothering to mention the campaign at all. We have no idea why they'd want to snub it - if someone trying to stop the whole scene being destroyed isn't "emu news", what is?"

We tried contacting both Dave's and Emu News to discuss their situations, but they refused to comment. It is indeed sad that the two most powerful voices in the emulation community are reluctant to contribute to this effort. Perhaps they doubt the success of or disagree with CLEAR's proposals. We asked Mr Bongo what CLEAR's aims are: " We're not suggesting publishers give up their copyrights, only that they allow free distribution of stuff a certain age. We suggest any software for machines which came out before 1990 can safely be considered commercially dead and should therefore be set free in this way. Anything publishers want to specifically protect (say for example they release a new commercial retro collection and want to remove the games on it from free distribution), they can then simply reassert their copyright," which seems sensible and is all that's needed. Mr Bongo again: "All we can do is continue to lobby IDSA and its individual members - using rational, calm, persuasive language rather than shouting and flaming - and keep the subject alive by talking about it on sites and message boards, newsgroups and chat rooms, and persuading other web and print publications to discuss the subject. If enough people can show IDSA that they're doing themselves more harm than good with their current policy (which they are), they'll hopefully see sense eventually."

Considering that LAZARUS has received communication from IDSA members and from authors of software once published by IDSA members, would it not be wiser to try and extract statements from individual members regarding their position with regard to emulation? "It remains to be seen what they think about what the IDSA is doing on their behalf. We're contacting many of them now to try to find out."

Some believe that because certain software titles weren't published in the US, they're exempt from the IDSA's due restriction: "Because of the Berne Convention on copyright (which states that copyright exists internationally no matter where the copyrighted work was authored or registered), theoretically ELSPA or FAST (the UK's Federating Against Software Theft) could do exactly the same as IDSA tomorrow if they chose to. ELSPA are currently mounting a big offensive on piracy, and though they haven't as yet shown any direct interest in shutting down emu sites, we're sure they'll get round to it if IDSA keep being successful." So do the IDSA pose the largest threat to the Emulation Community? Mr Bongo's final thoughts: "They're a HUGE threat to emulation. As you can see from the official policy statement about the subject on their site, they basically want free emulation not to exist at all - to them, it's as evil as Playstation piracy, which is clearly stupid. Emulation can't be "killed" - it'll just go underground - but if it does go underground, lots of people who contribute to the scene just now will be put off by the nastier warez-and-porn surroundings which it will unavoidably have to live in. It'll all but stop being an "emulation" scene and just completely go over to the warez puppies. Certainly, the nice, friendly, respectable scene we know and love will be gone."

DeeJay99 says the IDSA's campaign against emulation is only successful because of ISPs' jittery response to copyright issues: "If your [emulation-based] site is hosted by a company such as Geocities or Xoom who are contacted by the IDSA, they'll have no hesitation at all in deleting it, whether it contained offensive material or not. The IDSA know this and it gives them an unfair advantage. If the IDSA were challenged and asked to produce a list of titles they took exception to, the process would move a lot slower. It would be necessary for the IDSA to be in posession of files they've downloaded from each site and have proof that (1) they were downloaded from the URL they claim and (2) the zip archives contain the software they claim to protect. Furthermore, they cannot legally request the complete removal of an entire site purely because a proportion of IDSA protected files might be there, just as the police cannot order the closure of a video hire store such as Blockbuster, simply because an outlet in Croydon is suspected of stocking a pirate copy of "Titanic". Sadly, cases rarely get this far so it will be some time before a precedent is set - although I'm not saying we'd like to be that test case!"

LAZARUS has tried, in vain, to contact publishers and developers directly to discuss emulation issues. Largely, such requests are met by a wall of corporate silence. Gremlin Interactive, a company which has existed in one form or another since its inception as Gremlin Graphics in 1984, is happy to allow free download of its older C64 and Spectrum titles - in fact, they're rightly rather proud of their back catalogue. Melbourne House, along with Beam International, have a similar philosophy with a page on their web site dedicated to such titles. DeeJay99: "If they still existed or were contactable, no doubt companies such as Hewson Consultants, Software Projects, Bubble Bus and Bug Byte would be doing something similar. But what about Ocean Software, publishers of hundreds of 8-bit and 16-bit games, who started life in 1982 as "Spectrum Games Ltd."? They were recently sold to Infogrames, who are reluctant to make statements concerning the status of older titles. Wouldn't Paul Woakes and Novagen be pleased to know that Mercenary is still being enjoyed by many; would Sentinel 2000 really have made it past the drawing-board if the original had not been kept alive via emulation?"

The point is that, in order to confidently continue with a degree of certainty about its future, the Emulation Community must acknowledge (and assist in) the efforts of groups such as CLEAR and LAZARUS itself. Without help from the end-users, the IDSA and its equivalents will continue to stomp on every outlet of vintage software without due care or regard for its actions. What LAZARUS would like to see is statements from as many publishers as possible, each outlining the conditions under which older software might be distributed. EA could, for example, dedicate a portion of its web site to offering its older C64 and Amiga software. We shouldn't assume they don't care about their old software just because they're working on new projects - the IDSA have proven this is not the case. And although this method of cajoling definitive statements from each company may see an end to the era of free downloads, if enough companies could be persuaded to donate their 8 and 16-bit back catalogues for an authorised compilation CD-ROM set, with profits going to the contributing parties, it would give everyone the opportunity to once again own this software (at a sensible price) and keep it on the shelves, legally.

If you support emulation and want to see archives of software for obsolete computer systems, that can no longer be purchased, continue to exist in one form or another, you should visit CLEAR's web site to read more about the campaign and learn how you can contribute. If you're an author of a peice of software which has not been sold for at least five years, or an ex-publisher/developer of 8-bit/16-bit and discontinued console software, then support CLEAR by giving permission for the title to be distributed for free to the Emulation Community, or by contacting the copyright holder to discuss their position. We remain open to all comments regarding our own archive of files, and can, as always, be contacted here. Paul Austen