Lending Emulations?

In my report Emulation and Virtualization as Preservation Strategies I discussed the legal issues around emulating obsolete software, the basis for the burgeoning retro-gaming industry. These issues have attracted attention recently, as Kyle Orland reports:

In the wake of Nintendo's recent lawsuits against other ROM distribution sites, major ROM repository EmuParadise has announced it will preemptively cease providing downloadable versions of copyrighted classic games.

Below the fold, some comments on this threat to our cultural history.

EmuParadise founder Masj recounted receiving "thousands of emails from people telling us how happy they've been to rediscover and even share their childhood with the next generations in their families.":

Those kinds of emails highlight just how hard it can be to get legal access to vast swaths of video game history in a convenient, downloadable form. Efforts like Nintendo's now-defunct Virtual Console and periodic re-release collections fill in some of the gaps, often for the most popular games. Still, the game industry doesn't have anything close to the equivalent of Spotify's deep collection of easily streamable music, or the tens of thousands of downloadable movies and TV shows available on iTunes and its ilk.

For the vast majority of early gaming history, downloading a ROM from a site like EmuParadise is often the only feasible method of accessing the game at all, short of tracking down an original cartridge and hardware. As Video Game History Foundation founder Frank Cifaldi put it in a 2016 GDC talk, "we demonized emulation and devalued our heritage. We've relegated a majority of our past to piracy."

Orland followed up with ROM sites are falling, but a legal loophole could save game emulation, discussing first a site that, by streaming games from cartridges they own, has survived legal challenges:

Since 2001, Console Classix has marketed itself as "the only emulation service that is 100 percent legal!" The site, and its associated Windows app, offers nearly instant access to thousands of emulated games from the Atari 2600 and ColecoVision era up through the Nintendo 64 and Game Boy Advance. A free subscription tier lets users play games from the NES and earlier hardware, while complete access costs just $6 a month or $60 a year.

In my report on emulation I wrote:

“Streaming” emulation systems that do not result in proliferation of copies should have a similar effect on access to preserved digital artefacts. In permission-based structures, the service provider is the single point of negotiation with the rights owner. In objection-based structures, the service provider is the single point of contact for takedown notices.

The success of the Internet Archive’s collections, much of which can only be streamed, and Rhizome’s is encouraging in this respect. Nevertheless, it is clear that institutions will not build, and provide access even on a restricted basis to, collections of preserved system images at the scale needed to preserve our cultural heritage unless the legal basis for doing so is clarified.

And also:

One idea that might be worth exploring as a way to mitigate the legal issues is lending. The Internet Archive has successfully implemented a lending system for their collection of digitized books; readers can check a book out for a limited period, and each book can be checked out to at most one reader at a time. This has not encountered much opposition from copyright holders.

A similar system for emulation would be feasible; readers would check out an emulation for a limited period, and each emulation could be checked out to at most one reader at a time. One issue would be dependencies. An archive might have, say, 10,000 emulations based on Windows 3.1. If checking out one blocked access to all 10,000 that might be too restrictive to be useful.

Orland also spotted the analogy with the Internet Archive's Open Library:

a similar service operated by a non-profit institution might fare better under the more expansive Section 108 of the Copyright Code. "A library or archive does have some more leeway in doing things to preserve works and serve the public," [Methenitis] said. "If a library tried doing this, I think they might have a better chance at being successful in court based on the allowances that are given to libraries."

One doesn't have to look far for an example of a library digitizing physical objects for temporary, serialized loans—as long as the physical objects are books, that is.

Video games are an important cultural artifact. Unlike books, movies, and even music, national libraries and other archives typically don't have organized programs to collect and preserve them, much less make them available to scholars. AFAIK the Internet Archive's accessible collections of console and arcade games are unique among established archives, but they lack Nintendo's catalog. Figuring out a way for institutions to preserve this history without undue legal risk is important.