emulation, recompilation, legality and you
a brief look and minor rant about the legality of emulation (note: i am not legally qualified!)
currently playing: drmr - homebrew channel music (homebrew channel)
recently, i've been seeing people doing the rounds again for that same old chestnut that's been happening since the dawn of time... by which i mean, like, 1997, when nesticle was a thing: this idea that playing console games on a platform other than the original not only invalidates the experience, but is actively illegal in some grand way. that's predominantly been a stance levvied against emulation for the longest time, but now that same principle is being applied to decompilations. and that is so very irksome to me. i can understand why people would think this, hell, why it might be a legal grey area itself, it does seem a bit strange, doesn't it?
yeah, that's why this was cleared up in a legal case pushing 30 years old.
for the purposes of this little cursory glance, the takeaway i want to highlight is this: a court ruling saw it put into legal precedent that emulators, even using screenshots of the original hardware's output to directly compare with an emulator, is not only perfectly legal under fair use, but is reinforced by anti-monopolistic laws, as it provides a clear point of competition to strive for. a direct excerpt:
"Bleem's use of a handful of screen shots in its advertising will have no noticeable effect on Sony's ability to do with its screen shots what it chooses. If sales of Sony consoles drop, it will be due to the Bleem emulator's technical superiority over the PlayStation console, not because Bleem used screen shots to illustrate that comparison."
this especially interests me - despite the fact that bleem is one of few, and one of the first commercial emulators, it was still okayed. despite the fact that you were paying money to engage with an emulator in order to play those games on another platform, which included directly competing hardware such as the dreamcast through use of the bleemcast line of discs, it was seen as not only perfectly healthy for fair use, but actively encouraged along in order to light a fire under sony's arse to make their console actually sufficiently competitive with the feature set and quality of bleem.
this seems a very cut and dry thing to me. and I'm just some knacker with a keyboard! so why is it rarely cited, and even rarer still to see people simply concede to this clear legal precedent, and one that has remained unchallenged for years in an actual legal capacity despite so many people disagreeing?
simple reason, on that first one: people are drones who take nintendo seriously. on this archived version of nintendo's legal page, taken as recently as december 2024, there are several outright falacious statements being made, ones that fly in the face of the legal precedent set, and in fact, the law that still remains:
"...While we recognise the passion that players have for classic games, supporting emulation also supports the illegal piracy of our products. Wherever possible, Nintendo and its licensees attempt to find ways to bring legitimate classics to current systems."
"But can't I make a backup copy if I own the video game?
You may be thinking of the backup/archival exception under the U.S. Copyright Act. There is some misinformation on the Internet regarding this backup/archival exception. This is a very narrow limitation that extends to computer software. Video games are comprised of numerous types of copyrighted works and should not be categorised as software only. "
this is a great example of nintendo doing a nintendo and simply talking out of their arse and ordaining it to be true! in case it wasn't obvious, no matter how fluffily-worded nintendo wants to put it, sorry, but video games are, inherently, software; they require a piece of hardware on which to be ran, after all. this is effectively equivalent to saying that a CD isn't just music on account of the album art, or that a motion picture is not just a film and is constituent of its soundtrack, actor likenesses, mentioned brands and so on. i have no qualms with having copyright protection over these things separately, or... oh, who am i kidding, i, personally, think everything should be public domain as it encourages iteration and innovation with a shared resource set, but then i'm also one of those dirty communists who thinks that there should be a good universal healthcare standard so profits aren't being put before people. but i suppose more aptly, i can see the argument of having these things be protected under copyright under separate terms. in fact, they actively are! youtube music reuploading channels such as GilvaSunner and BrawlBRSTMS3 have famously been terminated in the past thanks to, who else, nintendo striking them down for unauthorised use of their copyrighted material. seeing as a lot of those soundtracks weren't made available legally, there's an argument to be made that despite not being transformative or competitive, that even they were simply engaging in the act of archival, but nintendo does not care. in that case, its as easy for them as just telling youtube they're flagging the video, sending those channels strikes and eventually full-on DMCAs, and then calling it there. there is rarely, if ever, any improvements made, after that.
despite the fact that they doled out some ~2200 copyright strikes to GilvaSunner in 2022, they have had no interest in making a significant portion of these soundtracks any more accessible than they were at that time. the closest argument to be made is that they technically made the soundtracks to super mario 64, super mario sunshine and super mario galaxy mildly more accessible in 2020 by releasing them as part of super mario 3D all-stars, but even that is at best tenuous, considering the fact that you would actively need to - surprise - boot that specific nintendo software in order to listen to it at all, as opposed to the inarguable convenience of simply listening to it on any other device with a connection to youtube, or alternatively, and perhaps most legally grey, downloading these videos as .mp3s. even then, this is applying to uploads of these songs from as far back as october 2010 - there existed no such accessible versions of the soundtracks at this juncture. you wanted the mario galaxy soundtrack? you were ponying up $200 at least for a limited-edition CD on ebay. even now, you're likely paying out the ass for a copy of 3D all-stars to have the privilege of opening an app on your switch to listen to the soundtracks! they have been getting gradually "better" about this, but those quotations are doing some heavy fucking lifting. the nintendo music app was introduced on halloween night of 2024, and it's certainly a step in the right direction... it's just that to even begin to match the offerings we've had for years, there's a whole marathon to run, that they simply have no interest in doing. yes, despite the horribly limited catalog that grows at a snail's pace, despite the lossy quality of the songs, despite the new mixes of the songs that aren't advertised as such, why should they bother? they now have a legal platform that their music is available on; all their cronies are going to defend that with their life and say that if you're going to listen to the donkey kong bananza soundtrack, then you should have been listening to the like seven songs that were available on the app for the better part of a year instead of going to a place such as khinsider (other alternatives are available) and downloading some .flac gamerips that you can then have anywhere you like.
but, back to the matter in particular with games; inarguably, they are software, no matter how much nintendo opts to bury its head in the sand and pretend otherwise. it's outright laughable to suggest otherwise. just because that piece of software is constituent of other mediums, does not then discount it from being software. this is an, at best, utterly boneheaded preposition that illustrates that nintendo is planted firmly in its own beliefs about... words, and pre-existing legal definitions... and chooses to simply not operate by the actual rules that Everyone Fucking Else does. but, to some degree, this is just talk.
yes, amusingly, despite all this yammering on, and despite the soundtrack takedowns, there exists relatively few emulator takedowns with any actually fully legal grounding. don't get me wrong, there's a few takedowns that have occurred - yuzu being chief among them. however, the issue, in that case, does not fall with the emulation itself, but rather the circumvention of copy protection. this is through the copying pf prod.keys either from your own switch (with detailed instructions on their site) or ahem, "elsewhere". this would already be bad, if defensible through an argument of it being a perfectly reasonable application of reverse-engineering. however, there was another damning factor: the tears of the kingdom leaks. they flew far, far too close to the fucking sun when a leaked NSP came out approximately two weeks before street date, and instead of playing it cool, they launched into overdrive, developing their patron-only early access fork to support the game better; in other words, they actively were incentivising paying to access the emulator for the prospects of playing a game that was, by and large, a leaked ROM to most, as there was an infinitesmally miniscule quantity of users who would have actually gotten the cartridge itself before street date. this, under fair use laws, constitutes sufficient means to clutch your pearls and shriek "piracy!". it's also clearly been a massive wake-up call to nintendo, as there have been no leaks as large as that in quite some time now. as of writing, the most recent was that tomodachi life: living the dream leaked a few days earlier than release, as opposed to a few weeks, and even then, i've seen more people (anecdotally, citation obviously needed) who have been hacked by clicking on FreeTomodachisAndPuppies.exe than have actually been able to boot the game early. not only this, but there was sufficient ability to at least engage with the game prior to its full release this time, as a demo was made available, which a lot of people seemed content to settle with.
but there's many more emulators under the sun. and i imagine that no better example exists to get under nintendo's skin than dolphin.
the dolphin emulator is a piece of software that allows for the execution of nintendo gamecube and nintendo wii software on platforms other than those original two. and frankly? if we're going by the legal definition, if we're playing it by the book, and if we assume that people are dumping their own games, then bang - there's no legal case. not only that, but much in the same manner as the bleem case, dolphin provides significant competition to nintendo's official offerings through several means, including but not limited to:
- texture resolution enhancements so the game isn't in 480i dogshit-o-vision
- actual widescreen that isn't just stretched 4:3
- support for 60fps patches
- support for custom-made bespoke new texture packs
- support for any controllers
this all seems like a mighty fine way to play these games. some might even argue the definitive way. some more still might even claim outright replacement for the official means! and yet, nintendo does not pursue it. why?
because the dolphin team pursue no financial gain to develop this emulator, nor is it directly harming nintendo's own bottom line. look at it this way; nintendo threatened yuzu because their biggest, newest and shiniest toy was taken out from under their noses before they wanted to sell it for $70. as of the time of writing, nintendo is only supplying a scant few wii games, and even so, those aren't multi-million dollar, years-long projects in this moment, they're more or less doing the exact same shit as an untouched drag-and-drop dolphin and charging $70. its actively fair competition, whereas the yuzu case was out-and-out just piracy. and this is funny! because they'd have you believe that all emulation is piracy, and that backup copies are the devil, and any attempts to engage in this activity will guarantee you a place as satan's personal bidet servicer for the rest of eternity! but when it comes to actually putting their money where their mouth is on that, in terms of proving it legally, it is, of course, highly calcified in legal precedent that this is, in very prim-and-proper legal terms, utterly fucking stupid and a waste of time you utter fucking greedy twats.
a lot of what protects emulation, too, is the fact that it's a reverse-engineering process that can be spun as something educational; hours upon hours upon years go into making an emulator as functional as dolphin. sure, it's kickass as objectively the best way to play most, if not all of the wii and gamecube's library now, but it was shite in 2003, and stayed shite for a fair few years whilst it faced a great many development troubles at first. but they put years of research, testing, and at the end of the day, true goddamned dedication to the proper preservation and imitation of the hardware, to such a degree that if you put a native wii capture through a retrotink (or similar device that allows you to connect a wii up through HDMI) in front of somebody vs a dolphin capture running at that same native resolution, there's a fair chance you'll be able to fool a fair few of them. only difference is, for one of those, i just need to pop a disc in my wii, copy a file to an sd card, and then take the backup from my sd card and place it on my computer to have it preserved, and with a great many options, forever. contrast that with continuing to play on the wii: you need to fiddle on with your every disc each time you want to switch games, you need specifically the wii remotes, you need to have a converter to get HDMI output, or worse yet a whole-ass older TV that still has support for the old video standard, the sensor bar, any other controllers that the game may require such as the nunchuk or wii balance board, batteries for some of those controllers, and a fucking prayer straight to god that not one link in that hardware chain is severed otherwise you're not playing on your wii today, buddy. hell, in the case of another console, it's even better; with the playstation 2, literally just pop your disc into your PC. pcsx2 can and will boot that shit! better, you can then dump the .iso and have it preserved! versus needing to get your console, memory card, controller, converter and/or TV, and so on!
and in some cases, yes, many of the games that are most frequently played through these emulators are available today in one form or another. for example, one of my recent games was mega man. i played that through an emulation of the .iso of rockman complete works on the playstation 1 via the duckstation emulator. but that is far from my only option, of course - mega man is widely available, from the mega man legacy collection to various smatterings of virtual console releases (you know, emulations?), there is no shortage of ways to get it. but there's something often neglected in that. some of these other releases are better, and some of them are worse. the mega man legacy collection, at least in my minor experience, has input lag out the ass, and when you're playing games that already ask a fucking lot of you, input lag is the last thing you want. conversely, rockman complete works features faster loading times, saves, (admittedly borked) stereo audio and, crucially, no bloody input lag. this version of the game, however, is only available through emulation. a more contemporary example, sonic colors ultimate. now, regardless of what you think of colors ultimate, whether you are right and think that its a bafflingly incompetent port job with bullshit needlessly tacked on or you think that sega love you and so defend it fruitlessly, the fact remains that the original and ultimate releases are two different beasts. the artstyle shift, the bugs, the musical changes, ultimate's (admittedly shitty) additions - there is a great deal of difference between the two, even if it doesn't seem that way. and so, having access to the original through dolphin is a far more compelling way to go.
and i suppose whilst we're on the sonic comparison, let's come to the newcomer in the room: recompilation. for those not in the know, recomps are a static reconstruction of the game that allows for their native execution on the platforms that they are recompiled for. the most famous example, and the one that kickstarted the big boom of these in the past few years, was undeniably unleashedrecomp. now, there doesn't exist any legal precedent for it yet to my knowledge, so this is certainly a bit more murky. given the documentation and explanation of the recompilation process, though, i would be inclined to align it with the previously held emulator defense of "reverse-engineering" - perhaps even more so than with emulators in a lot of cases. whilst emulators provide a good general swathe of information on a console's operations, and do still provide ample ways to look into the function of games, it is even more helpful to have the far more granular peer beyond the veil that a recomp allows for, as its focus is placed solely on one game. this, in turn, allows for not only closer inspection of its operation, but allows users who aren't as savvy an easier way of following along. a lot of recomps (and their associated decompilations) have a public-facing web page, let's take the recently-completed opengoal, for example, that have readily available progress percentage meters alongside progress report blog posts. this, to me, is a great thing to implement into a project such as this. you get to have a clear-cut showing of progress not only to yourself, but your team, any potential new people who want to contribute, and the end users who will eventually want to get at it. others are a bit lacking in that department, such as the poxy twilight princess courage reborn recomp that i call poxy only because i want it so bad. you guys have been saying for WEEKS (as of writing) that it's basically done, letting other select youtubers play it, and then dropping that sexy-ass trailer on the 22nd of april, and it's still not bloody here! ohhh just finish up already please!
joking aside, though, these projects all intend to perform one common function: they are making games that have been swept aside by their original publishers accessible again, and implementing them in such a way that they can be readily made accessible to just about any device under the sun. hell, the fact that i can get sonic unleashed on my steam deck still blows my fucking mind, especially with how kinda shitty shadow generations and especially sonic frontiers run on the thing. it's a great win for accessibility and preservation, and makes these games available to people who want to play them, and perhaps even more interesting to myself, it allows for exploration of the source code in such a way that allows for modding to take place in a far easier way, both on the developer and user end. famously, one of the reasons that opengoal really got into public conversation was because of that bomb-ass gordon freeman mod, and subsequently has re-ignited a great many people's interest in jak and daxter as a whole. not only that, but it plowed forward way quicker to the beta release of jak 3's recomp, thanks in no small part to that exposure boost, i would imagine. there's people who care about these games throwing themselves behind letting people play them again, in times where the companies themselves just have zero interest. even the aforementioned sonic unleashed hasn't seen a port or anything of a similar scope to the recomp or even colors ultimate as of writing, because sega are acutely aware that critics panned unleashed when it first came out and are only just now recovering the ability to reference it, let alone think that people are actually ready to give a shit about it properly this time now that most of the most miserable and closed-minded games critics have been ran out of town. the fans though? well, i mean, if you're in the sonic community, there's a high likelihood that you have bemoaned the fact that there's no unleashed PC port for years now. hell, people were doing it with colors, previously! and so now the recomp exists, there is a way to sate that appetite. of course, given an official release exists, it's best to support it, but until there's sufficient interest shown, i'll stick to my silky smooth sonic unleashed action, my wonderfully preserved jak and daxter collection, and pray to god that somebody autistic enough provides the resources for a yakuza recompilation.
and as a brief closer: no, remakes do not count as replacements. this is a point of debate for another blog post at some later stage, i'm sure, given my heatedness on the matter, but for now i'll keep it relatively brief. remakes are not a replacement for the original games, nor should they be treated as such, and they especially should not override the desire for a way to play the original games. especially in a lot of cases where the remakes are transformative. and don't tell anybody i said this, but usually for the worse.
for now, i'll be sticking to my gog re-releases of the resident evil games exactly as they came out, thanks. or failing that, the original ps1 games straight from duckstation!
