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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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« New DRM Coalition to Raise Barriers to Entry for Competitors | Main | The Excessively Annotated RIAA Letter on the INDUCE Act (IICA) »

July 14, 2004

Hatch's Hit List #4 - Arcade Emulators

Posted by Ernest Miller

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.

Comments (7) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act


1. Seth Finkelstein on July 14, 2004 09:48 AM writes...

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

I suspect that if any big company really made an issue of it, the _Napster_ decision could be used to give the MAME people a very hard time.

Maybe it could be distinguished. Maybe. But it would be an expensive trial. I suspect the proportions of non-infringing use of MAME is even less than Napster (the latter at least could try for the fig-leaf of garage bands, there aren't that many garage-ROM old-game-makers)

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2. Paul Ham on July 15, 2004 03:53 PM writes...

Note that ROMs can be legally purchased from services such as Star ROMs at affordable prices. This doesn't debunk the claim that MAME is vulnerable to INDUCE, but does show that piracy isn't necessary.

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3. Ernest Miller on July 15, 2004 04:00 PM writes...

Right you are. And as soon as I'm rich, I'm going to build a totally awesome MAME cabinet with four controllers and stock it with every single Star ROM and the ROMs I have legal access to (such as that for Rampage - I have an original 3-player one). [Not Sarcasm - I would really do this if I had the dough.]

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4. Steve on July 17, 2004 12:54 AM writes...

Given that ESA members (such as Capcom) have sold authorized ROM packs with MAME included, this is a pretty tenous argument, although I wouldn't be surprised to see judges accept convoluted arguments.

Good old Republicans. They can't trust the government with taxes, or the courts to interpret marriage. But of course it's perfectly acceptable for courts to arbitrarily interpret which products should win in the marketplace of ideas.

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5. Michael Kramer on July 17, 2004 06:41 AM writes...

Leave it to a democrat to blame a bi-partisan cash grab on republicans. Ain't partisanship grand? I mean, they count on people like you blaming the other side say they can keep on doing what you are doing, rather than organizing against people you don't agree with, party be damned.

Oh well, keep promoting the status quo with those arguments.

BTW - I have an Original Star Wars video game in my house, with the optional Empire Strikes Back board and a toggle switch. Does that mean I can download the ROM without breaking any laws?

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6. BIGFOOT on July 17, 2004 08:21 PM writes...

This is dumb, Comparing MAME/arcade roms to Napster/music is like comparing apples and oranges. Almost all music in the world EVER is STILL FOR SALE TO THE PUBLIC EVERYWHERE.
ARCADE MACHINES ARE NOT! Therefore there is no loss of money to arcade machine makers or game creators. I would say only about 5% of MAME users actually have the ability to purchase and run arcade hardware, if that.

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7. Ernest Miller on July 17, 2004 08:34 PM writes...

If the comparison is dumb, it is because the produced law does not distinguish between the two. It isn't my comparison that is dumb, but the comparison that the law allows.

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