Video game console emulators: Free or not? — Free Software Foundation — Working together for free software
Video game console emulators: Free or not?
When it comes to exercising your freedoms, video game console emulators (for the sake of brevity, VGCE) are hazardous terrain. A VGCE is a program built to allow a computer system to run software or use peripheral devices originally designed for a game console system. These proprietary software corporations often heavily guard their consoles from being reverse-engineered. Historically, these corporations have played legal whack-a-mole with any VGCEs that popped up; however, over the years some corporations have relented, even leaving room for fans to create new games or expand the world of popular game characters, but this doesn't mean these corporations have truly set their programs or systems free.
While many VGCEs are licensed as free software, this does not inoculate them from legal risk because of their proprietary origins; therefore, the programmers behind VGCEs must work carefully to avoid finding themselves on the wrong end of a DMCA take-down or a lawsuit with life-altering consequences. Helping these hackers along are two US court cases which are often referred to in relation to VGCEs where the programmer was found to be within their rights. In both Sega Enterprises Ltd. v. Accolade, Inc. and Sony Computer Entertainment, Inc. v. Connectix Corp., the reverse-engineering process done to obtain the information necessary to build the software was declared lawful under fair use. Basically, examining code for the purpose of reverse engineering was ruled legal in these cases, and creating something new without using the original (proprietary) source code did not infringe copyright.
In addition to these court cases, VGCE programmers (at least the ones striving to avoid difficulty) ought to be skilled at not violating trademarks or copyright unrelated to the technical aspects of the project. Avoiding the use of proprietary non-functional data, or any proprietary data that is not required for a program's function, is a common way to avoid infringing on trademarks and copyright.
Programming a VGCE can be permissible legally, and the result can be licensed as free software. However, that doesn't mean that using the program respects user freedom. Game consoles are designed to play games distributed on read-only memory (ROM) modules, most of which are proprietary where none of the four freedoms may be exercised. Worse, you could face serious consequences for trying to use or obtain them. Hard truth: a vast majority (if not all) game console emulators replicate systems only to enable users to run software that will likely never be free.
Fortunately, there is a solution, and that is to choose freedom! Because many VGCEs are freely licensed and the community has the freedom to understand how these VGCEs works, good programmers can create their own games, colloquially known as "homebrew" games. Homebrews, many of which are freely licensed, can be an original game or replication of an existing game. Users and programmers beware: like with emulators, freely licensing a game isn't a panacea for avoiding trouble from the makers of the games, as understandably it can be difficult to avoid likeness or similarities in story details and even game play mechanics.
Fair use and other copyright limits exist to benefit the public, not copyright holders, as copyright law was created "to promote the arts" per the US Constitution. Reverse-engineering or remaking old games is inherently legally risky. We therefore warn and educate everyone about what can happen should they not carefully navigate existing copyright law. The FSF does not reject emulators or remakes from the Free Software Directory (FSD), but it is good to remember that they still induce or direct users to interact with nonfree software, and we feel we have a responsibility not to lead or encourage others to run nonfree software.
As long as a VGCE has at least one homebrewed game which is correctly licensed as free software, the combination is considered non-controversially free regardless of the VGCE being able to play nonfree ROMs. If you're curious to learn more, you can join us any Friday from 12:00–15:00 EDT (16:00 to 19:00 UTC) in Libera.Chat channel #fsf for the FSD meeting. There we check programs for freedom, including VGCEs and homebrewed games. I hope to see you there!
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