What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the INDUCE Act Archives.

Today on Hatch's Hit List: Arcade Emulators

Some of the first examples I've used for Hatch's Hit List may have seemed a little obscure or out of the mainstream. Well, today I offer an obvious example of something certain to draw lawsuit wrath: the Multiple Arcade Machine Emulator (MAME).

For those unfamiliar with MAME (and you should be ashamed of yourselves) the MAME FAQ has this to say:

MAME stands for Multiple Arcade Machine Emulator. When used in conjunction with an arcade game's data files (ROMs), MAME will more or less faithfully reproduce that game on a PC. MAME can currently emulate over 2600 unique (and over 4600 in total) classic arcade video games from the three decades of video games - '70s, '80s and '90s, and some from the current millennium.

The ROM images that MAME utilizes are "dumped" from arcade games' original circuit-board ROM chips. MAME becomes the "hardware" for the games, taking the place of their original CPUs and support chips. Therefore, these games are NOT simulations, but the actual, original games that appeared in arcades.

You see, that is the tricky thing about MAME. The emulator is separate from the ROMS (which are copyrighted). Let's go back to the FAQ:

Emulating another platform, in itself, is NOT illegal. It is NOT illegal to have MAME on your computer, on your website, or to give it to friends.

ROM images are a different matter. Many ROM sites have been politely contacted by ROM copyright-owners and asked to take images offline. At the time of this writing, however, no site has been LEGALLY shut down, or prosecuted. [bold in original]

Sneaky, sneaky. The FAQ even goes on to say that:

"Distribution of MAME on the same physical medium as illegal copies of ROM images is strictly forbidden. You are not allowed to distribute MAME in any form if you sell, advertise, or publicize illegal CD-ROMs or other media containing ROM images. This restriction applies even if you don't make money, directly or indirectly, from those activities. You are allowed to make ROMs and MAME available for download on the same website, but only if you warn users about the ROMs's copyright status, and make it clear that users must not download ROMs unless they are legally entitled to do so." [italics in original]

Thus, MAME is perfectly legal under current copyright secondary liability doctrine.

But, come on, we all know that MAME is really about pirating Arcade games. Don't take my word for it, here's an admission from the videogame blog Joystiq (Emulator scene is our guilty pleasure):

It’s with a great amount of shame that we must admit that the emulator scene is swiftly becoming a guilty pleasure. Just like the music downloads we’ve all enjoyed once, twice or thrice, the old games of yesteryear can find new life on your PC. The rules of the emulator community dictate that you must own a copy of the game before you can download its emulation, but we all know that doesn’t happen. Where the hell would I put the full Star Wars arcade game? I live in a 900 square foot apartment! How dare they demand such a thing from me! As punishment I shall now download Donkey Kong! [emphasis added]

Seriously. Let's compare how many copies of MAME have been downloaded vs. the estimated number of actual arcade games out there. Anyone can see that MAME intends people to download ROMs no matter what their "disclaimer" says. Heck, if a disclaimer was all you needed to avoid liability, the INDUCE Act wouldn't be worth the paper it's written on, would it? And take a look at the FAQ again about getting ROMS:

The illegal option is to search the net with Google, Altavista, Yahoo, Webcrawler or other search engine, for the ROM files. You can also try other methods such as IRC, newsgroups, P2P software etc. Be aware that this is breaking the laws of almost every country. Before you consider doing this, see if the particular arcade games' copyright-owner has the ROMs available (as with Capcom and Atari). That way you will support the companies that support emulation.

Inducement, definitely.

And these old games are still worth money. Go into any videogame store and you'll see collections of classics still available. As this article from the Rocky Mountain News shows, millions of dollars are at stake (Retro's the name of the game for a new generation of videophiles).

If the Hatch Act passes, goodbye MAME, it was wonderful knowing you.