Emulation and ethics

At various points in the past few years, I have gotten on a retro kick with regard to videogames. The deep seated psychological reasons for this can wait for another post. But suffice it to say, I've developed a recurring yen to play the games I grew up with.

Here are the consoles I've owned in my lifetime: Atari 2600, NES, Dreamcast, PS2, Gamecube, and Xbox. As you can see, there is a distinct gap in consoles - I never had a Genesis, SNES, N64, or PS1. I played those consoles with friends, more sparingly than the ones I personally owned. For the most part, I'm concerned with playing games on the consoles of my youth, so everything from Atari 2600 to SNES. I still own the newer consoles (though some were destroyed in a recent fire), and can play them regularly.

So herein lies the dilemma - some of these consoles, the NES for instance, are notoriously prone to breakdown. Shoot, the connectors on my original NES were wearing down a tad when I still played the thing with regularity. The "NES blowjob" is something an entire generation of Americans saddled with that crappy hardware are quite familiar with (Japanese and European games got a top-loading NES, which didn't experience the same issues that plagued the American "toaster" version) . Now, the Atari itself and its games are durable beyond most reasonable standards. But their controllers, especially the paddle variety, are known for their failures. The other dilemma is presented by arcade games - geographically it can be extremely difficult to find this or that machine that you used to log precious hours and quarters on in your formative years. These machines still working at an acceptable level is also difficult to find with regularity.

But a-ha - we are not doomed to either abandoning this quest for our youth or to spending inordinate sums of money on a collectible market - enterprising computer dweebs have programmed wonderful little programs for PC and Mac called emulators. These programs simulate the operation of the original machine within a windows or mac environment. But the catch is, they need ROMs to run - direct 'images' of the cartridge or arcade circuitboard which the emulator interprets just as the original machine did way back when. And just like the 'sharing' or copying of music and movies, video game ROMs are frowned upon by the big guns in the industry such as Nintendo, and exist in the same sort of hazy nether-world of uncertainty that mp3s also inhabit.

As clearcut as Nintendo's FAQ would like to present the issue, the "legality" of ROM images has not been clearly defined. It is still being debated sporadically in courts.

Now, I am not a lawyer. Nor do I ever wish to become one. I am a philosophy student. So I'd rather attack the issue ethically as opposed to strictly legally.

Ownership

The way I see it, I owned the various consoles listed above, as well as X number of games for them. Those consoles have fallen into a state of disrepair through normal use, or "act of God" in terms of a fire (though it was really the act of a drunken, irresponsible illegal alien who was squatting in the basement, but that's another story...). So I don't see any ethical issue whatsoever with my downloading an emulator for that system and the ROMs of any games I have owned at any given time to play them. I bought them (or my parents did), back in the day. Why should I not be able to play them because the hardware was designed so poorly?

So that covers games I have owned and played in the past. But it certainly doesn't cover arcade games, and games on consoles I never owned. So is it OK for me to download and play those games?

Abandonment

"Abandonware" is a pretty hotly debated concept, and no conclusions have yet been drawn. Nintendo makes its stance clear, but frankly I disagree with it. Copyright law is designed to protect a publisher or creator's right to profit or not profit from their creation's use. But if profit or lack of profit isn't part of the equation, does such a protection still hold?

If I find a book laying in a garbage dump, do I have the right to read it if I didn't purchase it? It's been abandoned. Why should I not read it? Presumably, it got there because someone paid for it, then discarded it. Even if they did not, is it really my burden to track down the history of this particular copy of a muddy old book to ensure that I don't inadvertently gyp Steven King out of 42 cents in royalties?

If a company has no plans to profit from an old work, I really don't see the harm in my freely downloading it and enjoying it. I'm not paying anyone for it, nor do I intend to sell it to anyone else. The company in question is not even involved in any commercial venture concerning the work in question. Legal or not, I have no ethical issue whatsoever with enjoying an abandoned piece of work.

But, alas, this only covers a portion of what I might wish to play. Nintendo in particular, but to a lesser extent Namco, Capcom, Activision, and other software companies make it a regular habit to dig up their old software, repackage it (usually as a "greatest hits" collection), and sell it back to the consumer, usually at a price not befitting its general level of obselescence. Nintendo has plans to sell its old games via a "Virtual Console" service on its new Wii console, debuting this year. So Nintendo definitely has active plans to profit from its old work, as is its right.

So if I want to play Super Mario 3, or Sonic the Hedgehog, games I never owned, it looks like I am ethically out of luck. Or am I?

The Karma Fund

All right folks, this is my creation. No one I know of has ever discussed it, at least by this name. But it's the slender (and very debatable) plank upon which I rest my general moral comfort with emulating and playing games I never owned and which still might be commercially exploitable by their original publisher.

Thesis: Nintendo (for example) profited immensely by selling its hardware and software to millions of consumers (including me). Some of the hardware was prone to problems and premature failure, leading to the additional expenditure of money and its eventual abandonment. Therefore, bad Karma for nintendo, 'Karmic dollars' in the Karma Fund to me as a victim of Nintendo's practice of producing shoddy merchandise.

Thesis: Game publishers in the era ~1975-1995 produced an addictive product of widely variable quality, restricted access to information about this product, and sold it at an unreasonably inflated price. The connection between video games and addictive behavior has long been studied, even back in the 80's by surgeon general C. Everett Koop. They found that the processes of the brain while playing games exhibit the same endorphin release and reuptake cycle as addictive drugs. Game advertising back in those days was not subject to any restrictions - whereas today, advertisments are required to indicate whether a screenshot represents actual gameplay, back then they did not. So you'd often get really stoked by an ad that this game would be the next best thing to sliced bread, when in fact is turned out to be a buggy, ugly piece of crap. And as far as price goes, "Game Paks" which were sold for $50, for example, would currently retail for $97.93, when the price is adjusted for inflation! (it is even worse for games from the Atari age of the late 70s, where games retailed for the equivalent of $120-$160!) Considering the costs of development for a game whose data spans an enormous 16kb, those prices are difficult to justifyby any means, especially when the product itself is addictive. Therefore: 'Karmic dollars' put into the fund by publishers' practices in the day, justifiably withdrawn by me as the victim of crappy games, addiction, and exorbitant pricing.

So - if endeed I am entitled by my reparations from the Karma Fund, I don't find it particularly egregious to download better games than the ones I had purchased back in the day, at a price ($0.00) which compensates me for the gouging I was subject to in the 1980's and 1990's.

That said, I have no issue with the current game pricing scheme. $50 in today's dollars pretty accurately corresponds to the development costs of a big-name current-gen game, with its gigabytes of data, textures, music, voice acting, etc. Only when a game is of substandard quality is a discount justified, or in cases when the market has dictated that people just won't pay that price any longer - as in the happy case of Sony's "Greatest Hits" series of $14.99 to $20.00 games.

Games as Art

Another argument for the preservation of games by any means, including emulation, is that they represent a new form of artistic expression, and thus should be preserved for future generations to enjoy and study. How much better off would Academia be if we had complete libraries of the works of the Pre-Socratics? If the science of the ancients had survived the Dark Ages, and allowed us to build upon their advances earlier? If every painting and work of literature had been preserved?

Surely, there is plenty of crap in each of these fields. Any art form or medium is subject to the same bell curve of quality as everything else. And certainly, I am not arguing (yet) that there is a video game of equivalent importance to human thought and letters as Plato's Republic or Shakespeare's plays.

But video games represent a medium which has a singular power to involve the player in critical thinking and moral choice, and immerse them in worlds with unquestionable artistic merit. Certainly, before video games disappear as a medium (something that shows no evidence of occurring any time soon) a video game artist will create something that challenges its audience to think in new and important ways, to reassess some issue of life as human beings. It may have already happened, it's difficult to say without any distance. Shouldn't the nascent stages of the growth of this medium be preserved?

As history has indicated, the authors and creators of this or that work cannot be trusted to preserve their creations for posterity. Should we discourage a community of people who do just that, without an interest in profit? Personally, I think not.

As far as my playing such preserved relics of videogaming past - am I justified? Well, put it this way - Am I justified if I read Plato's Complete Works without buying a copy from Hackett Publishing? Are libraries justified, since millions can read books or view movies without paying for them?

At some point, a work's value as art supercedes any legal or financial strictures on its use. Once a creator of such a work has profited from it to a reasonable degree (i.e. beyond needs for their subsistence and general financial rewards for public acclaim for their work), it should be allowed to be preserved, enjoyed, and studied by future generations.

Conclusion

So there you have it. Legality aside, I believe there is a moral case for emulating and playing downloaded games from the 1980's and 90's for free, as long as you seek no monetary gain from the activity. It may well be that as a matter of convenience and ease of use, that you (or indeed I) may eventually opt for one or more of the legal avenues of emulation (like Nintendo's Wii console, or games like Namco Museum). But if you don't have the resources or just aren't inclined to pay for games you've already owned, personally, I think you have avenues of justification. On the other hand, I don't think there is ever a justification for profiting from the sale of emulators or ROM images. Not only have millions already been gouged for their games, but it just plays into the hands of legal arguments against this vital and fun means of preserving gaming history.

Stay tuned for a series of posts regarding my emulation experiences and recommendations for download!