A BLACK MARKET EXPERIENCE

     Inside the confines of a warehouse located somewhere within the tightly packed mass of buildings that make up the waterfront district of Hong Kong, sometime around the early 1990s, an extraordinary event is occuring within an otherwise ordinary place.  Outside, and in the main work areas, it looks just just like what one might expect to find inside such a place - boxes and crates, pallets stacked full of goods being moved around by intent-looking drivers on forklifts, the occasional foreman shouting out directions (albeit in Chinese), and the floor manager hiding out within the comfortable confines of his air-conditioned office.  Not far from him, though, in another air-conditioned room, a quite different set of activities from those on the warehouse floor is taking place.  The two, to a casual eye, might seem unconnected at first, unless one were able to stay around long enough to see the process all the way through.  Let's sneak inside for a peak, shall we?
     The room is wall to wall electronics, with some dozen or so people doing several different things at once.  In one corner, we see a tall pile of oddly shaped black boxes, each about the size of a pack of cigarettes.  There are several different kinds, and each has different labels applied to them.  They are game cartridges for use with many of the popular videogame consoles of the day.  The gentlemen closest to them are pulling them from the piles, one at a time, and slapping them inside an odd-looking contraption attached to each the dilapadated personal computers sitting on their desks.  There is a flash of activity on the screen for about half-a-minute or so, then the cart gets yanked and tossed into a steadily growing pile building inside an old lidless wooden crate.  Meanwhile, across the room, the same process is happening in reverse, but in a somewhat expanded form.  There are many more people here, and many more computers with different-looking little devices attached to them.  This time, the pile of game cartridges have no labels, but they are going through the same process as the others.  One at a time, they are taken from their stacks and shoved into the weird-looking machines.  The appropriate computer hums for a bit, then spits a message back out at its operator.  Immediately, the cartridge is pulled off and handed to another person, who hurredly but neatly slaps on a lable and then packs it inside a box along with its brothers.  Intrigued, we manage to get a closer look at the boxes that are being so carefully filled.  The markings are the same as those on the large crates outside on the workroom floor.
     Carefully, so as not to be noticed, we manage to ease our way back out into the main work area of the warehouse, grabbing a hard hat and a pullbar in the process.  Walking nonchalantly so as not to attract attention, we eventually make our way to the far side of the warehouse, behind a large stack of crates that prevent us from being seen by the others.  Scanning down a row of smaller crates, we find one with those unusual markings that we noted earlier.  Using the pull bar as quietly as we can, we manage to prize the lid off of the crate and peer inside.  It is full of hundreds of videogame cartridges - ones that must have been made in that electronics-filled room we were inside earlier.  Carefully, without attracting attention, we manage to re-secure the lid and replace the crate in its original location, then make a quick yet deliberate exit though the loading doors.  As we walk down the loading dock and away from the place, we note several truckloads of these crates lined up alongside, each almost ready to roll.  Each manifest has a different destination printed on it ... Taiwan ... Japan ... Korea ... Malaysia ... Singapore ... Guam ... Hawaii ... the continental United States ... Mexico ... Brazil ... England ... Germany ... France ... and so on.  And as we slip back into the shadows and make good our escape, the implication hits us - what we saw is going on every day, around the clock, and affecting every part of the world.  Thousands, tens of thousands, perhaps even millions of illegally produced videogame cartridges.  The wind blows cold, and we shiver.  How many other buildings that we pass by have similar operations inside them?

     As you may recall, the bulk of the software base available to videogame emulator developers and users arose during the actual lifetime of the machines in question, during which unlicensed cart manufacturers turned out counterfeit products by the truckload.  It hasn't stopped, as anybody in the software community will tell you - it still goes on.  Every copy these folks make is illegal in both origin and purpose, but this matters little to them.  Not having to pay license fees to the real owners means more money in an unlicensed distributor's pockets, and that is why software piracy on a commercial level, which is often referred to by the quaint term of bootlegging, is such a tempting proposition.  Both the technologies involved and the resultant software remain with us, and such activities continue in many parts of the world even as we speak.  China is notorious as the bootleg capital of the world due to its lax interpretation of already weak local intellectual property laws, but they are not the only ones that are guilty.  Russia is another well-known alternate source, as are other former Soviet states and any other country with a strong underground "black market."  The practices and equipment that videogame bootleggers have at their disposal are often the same as or based upon those used by bonafide developers.  They remain as popular and available as they ever were, and thanks to the Internet more and more users are becoming aware of their existence and potential.  Both the resultant copies of the software made from any original and copies of the bootleg forms, both of which were produced with this technology, are in many cases available to anyone with the determination and resolve to find them, no matter how long and where they must search.  In my youth, we called it going for the "warez."  Today's generation of unscrupulous gamers call it something else entirely.
     With this in mind, we kick off what many have now come to call part one of "the great emulation debate."  In this we shall look at certain specific issues that deal with the emulation software base.  We shall deal with the concept of a "ROM," whether or not a "ROM" is legal, and what can be legally done with a "ROM."  We shall also finally address the issue of BIOS dumping, and we shall see whether or not there is such a thing as public domain software for an emulator.  At the end, I shall sum up the specific legal issues that are in doubt with regards to the emulation software base.

WHAT IS A "ROM?"

     If you start surfing the multitude of emulation and "warez" site on the Internet, you will run into a term familiar to most computer users but employed in a new and rather unique way.  That term is "ROM," written with quotes here to distinguish it from the traditional defintion of Read-Only Memory.  "ROM" is emulation slang for a piece of software that is used with an emulator, but it is now actually a bit more involved than that - thanks to the activities of the software pirates, who tend to use the term "ROMz" rather loosely.
     To formalize the slang use of the word in its widest sense, a "ROM" is a piece of computer software stored within a unique archival format not found in everyday personal computer usage that is intended to work with special program development tools, or some form of an emulator, or both.  There are to date two distinct types of "ROM" - the binary image file and the disk image file.  The common form of the binary image file as of today is the cart dump; this term arises from the use of special hardware to literally "dump" the computer code stored within a ROM-based delivery system like those used in your typical videogame cartridge.  This is where the slang use of "ROM" first originated.  The disk image file arose from the need to support software storage formats that are for obsolete or niche systems.  The main reasons for doing so involves either the slowness or obsolence of the original storage device (being able to use the data on more modern devices is faster and more convienent), or the copy-protection techniques for certain forms of software (which are commonly disk-based).  The disk image file is a one-pass "dump" of the entire contents of an original disk stored as a single continuous file, which appropriate routines inside an emulator can then treat as if it were the actual disk.  Disk image files are usually of older floppy disk formats, but it is concievable that this practice will be applied to other forms of removeable storage media.  It is almost certain that the image files generated by today's CD copiers and recorders could very well become the "ROMz" of tomorrow.
     We are not here to debate the legality of using a "ROM" with an emulator.  We have already established in our prior discussion that it is perfectly legal to run legitimately obtained software under emulation.  The question that immediately comes to mind is whether or not "ROMs" are legitimate in themselves.  This brings up two related issues that have a direct bearing on the question, and we shall deal with each in turn before answering that question: the practice of cart dumping, and the theory of cart backups.
     The following discussions will deal primarily with those "ROMs" that originated on some form of permanent storage media.  Game cartridges immediately come to mind, but the same principles apply to dumps of the integrated circuits and other forms of storage media used in coin-op arcade videogames, as "ROMs" for these standalone systems are also quite widespread.  It should also be noted that the videogame industry is currently attempting to redefine the meaning of the term permanent storage media so that it will apply to recordable storage media intented for long-term storage, such as CD-ROMs and DVD-ROMs (see the Digital Media Recording Act of 1995).  There is little doubt that they will succeed; hence my broad definition of the term "ROM."  Original system vendors will develop custom storage formats and new forms of copy protection in a concerted effort to prevent any kind of duplication regardless of intent, so almost all of what we are about to discuss will also apply to these new forms of "ROM."  You should also keep this information in the back of your mind whenever you are dealing with the disk image files for obsolete or niche systems, even though the original disks were not considered to be permanent storage media in the first place.  The widespread availablity of archiving hardware for the masses puts permanent storage media within the reach of the average user, and even these "ROMs" are being archived away on many a user's CD-ROM burner.

THE PRACTICE OF CART DUMPING

     Cart dumping first originated with videogame developers who wanted to make games for dedicated gaming systems.  The system vendors had to devise a means to burn the game's object code into the cartridge ROMs, and these devices were termed cart burners.  A similar technique could be applied in reverse to download or "dump" that code, and devices created to do just that were termed cart dumpers.  The resultant cart dump would almost always be a perfect copy of the game in the special format used by the vendor for storage within its game cartridges.  The only problems coming from this procedure were almost always due to special hardware installed by the original vendor to thwart cart dumping, and this appears to have been one of the primary motivators behind the development of antipiracy systems for videogame cartridges.
     There is a legitimate basis for cart dumping, though, and it is best to address this now.  Videogame vendors often provided pre-upload copies of their software to licensed potential developers for their own use, but there were more than a few who did not want to be subject to the whims of the vendor.  They wanted to know how certain games worked to produce the effects that they did on-screen so they could either duplicate or adapt those ideas into their own titles.  The only way to do this was without the vendor's permission, and the only way to find out these ideas was to dump the game(s) in question, dissect the actual machine code, and then reverse-engineer the concepts for use with their products.  This is a practice that is as old as the industry but is not just limited to old-fashioned console videogames.  Everybody who has dipped into the videogame market is aware of what happens when a new and successful title is released - it gets cloned beyond belief.  It is safe to say that those vendors who produce clone products that do not use licensed code have spent at least part of their time reverse-engineering the original game.
     Prior to 28 October 1998, cart dumping hardware in and of itself was not illegal for the average user to purchase and own.  If it had been, then any piece of equipment that could make a copy of anything would have been illegal.  Why?  The original argument went something like this.  Most folks own an audiocassette deck or one of those fancy audio CD recorders.  Just because you can use them to make copies of their favorite albums doesn't necesarily mean that you will.  Likewise, just because you had floppy disk drives or a CD recorder in your computer doesn't necessarily make you a software pirate.  To use another example, this time from the auto industry, owning a police radar detector is not in itself illegal.  It is the use to which you put it and in what part of the country that you use it that makes it illegal.  The ultimate responsibility for the use of these and other such kinds of devices rests upon the user, and not with the manufacturer or vendor.  To repeat an oft-quoted expression that is commonly heard from the gun rights lobby, "Guns don't kill people - people kill people."  It is not the fault of the product or its design; it is the use to which that product is put.  Owning a cart dumper or other such piece of equipment does not make someone a software pirate.  It is what they do with it that makes them one.  A lot of average users picked up on this defense for cart dumping hardware and began purchasing cart dumpers on their own, provided they could find somebody who sold the hardware and had deep enough pockets to afford it.  As for the videogame bootleggers, they cared little about justifying themselves.  You already know how they put both their cart dumpers and their cart burners to use.
     Original software vendors have never approved of the practice of cart dumping, due to its bootlegging implications, but there was little decisive legal action in this regard until 1992, when two important court cases happened within the same year.  These two cases (Sega vs. Accolade and Nintendo vs. Atari) legalized cart dumping by recognizing it as a legitimate practice of videogame developers for the process of developing their products.  In other words, any developers who saw an unusual or intriguing aspect or feature of a videogame that they had not developed had the legal right to go out and buy a copy of that game, dump the program, decompile the object code, and then attempt to reverse-engineer those functions that attracted their attention in the first place.  Insofar as the home videogame consoles of the day were concerned, this meant obtaining cart dumping hardware so they could download the game's object code from the cartridge ROMs.  The resultant copy was ruled by the courts to be an intermediate copy, since a change in format from the original delivery system had taken place.  Since the developers had obtained an original copy of the title in question by legal means, and the change in format was necessary for the efforts of the developers in question, any intermediate copies that they produced as part of the reverse-engineering process were therefore deemed to be non-infringing.  It is important to note two things in this regard.  First, an original was involved at all times.  Second, even though a change in format from the original delivery system had taken place, intermediate copies were protected under copyright law as if they were the actual originals.
     Needless to say, the fact that cart dumping had now been legitimized, even within the supposedly strict constraints of case law, did not sit well with system vendors.  In particular, Nintendo began doing anything it could to discourage the practice, viewing cart dumps as unauthorized infringing copies of their proprietary software (Peak vs. MAI, 1993) and therefore still illegal under copyright law.  Many different approaches were tried, with varying degrees of success, but the one that they and other software developers eventually settled on after five years of effort was the EULA.  The ProCD vs. Ziedenberg decision of 1996 had restored the vendor's rights to include certain forms of restrictive language within their software EULAs under the terms of the Uniform Contract Code (UCC 2-204 and 2-606), and software produced in the post-Ziedenberg era soon included EULA clauses similar to that reproduced below.  This is the form of Nintendo's standard EULA included with my nephew's STAR WARS: Rogue Squadron N64 videogame cartridge, and I reprint it in its entirety straight from page 36 of the owner's manual.  Even though it was printed in 1998, it is typical of most post-Ziedenberg EULAs:

     IMPORTANT (REV B)
     WARNING:  Copying of any Nintendo game (including this game) is illegal and is strictly prohibited by domestic and
     international copyright laws.  "Back-or" or "archival" copies are not authorized and are not necessary to protect your
     software.  Violators will be prosecuted.

     This game is not designed for use with any unauthorized copying device.  Use of any such device will invalidate your
     product warranty.  Nintendo, LucasArts (and/or any Nintendo licensee or distributor) are not responsible for any
     damage or loss caused by the use of any such device.  If use of such device causes your game to stop operating,
     disconnect the device carefully to avoid damage and resume normal game play.  If you game ceases to operate and
     you have no device attached to it, please contact your local authorized Nintendo retailer.

     The contents of this notice do not interfere with your statutory rights.

     This manual and other printed matter accompanying this game are protected by domestic and international copyright
     laws.

     The rental of this game without permission of Nintendo or its licensees is strictly prohibited.

     Such EULA language did not sit well with many console videogame users, who were by now quite active on the Internet.  They argued that archiving computer software was perfectly legal under copyright law (US 17 CFR 117)  and had been so for almost two decades.  Since the price of cart dumping hardware was now within the reach of many users, they bought cart dumpers and began dumping their collections in order to use their games with the now widely available videogame console emulators.  The bulk of videogame cartridge owners, though, not having deep pockets, used the same argument to justify their downloading of cart dumps for games that they owned which could be found on various backwater sites on the Internet.  These cart dumps, for the most part, had been put on-line as a so-called "service" by other users who had them in their possession - either obtained from bootleg channels or dumped themselves with their own cart dumpers.  Users would also download the requisite emulators for the same reason - it was more convienent to use the dumped copies and an emulator than it was to mess with the actual console and game cartridges.  This brings us to one of the most novel arguments in existence for the continued practice of cart dumping and subsequent distribution of the resultant cart dumps - the theory of cart backups.

THE THEORY OF CART BACKUPS

     A common argument you will hear from the emulation community goes something like this:  "It's okay for me to back up my game carts.  Copyright law says so."  You will also hear this variation:  "I download 'ROMz' because I want backups for my real carts.  It's okay, because backups are legal."  Are so-called cart backups legal?  Is it legal for you to backup a piece of software that is contained within some form of permanent storage media?  Well, let's see what the law and the courts have to say in that regard.
     It is legal for you to make a backup copy of a piece of computer software that you have obtained through appropriate means, and emulation sites are often fond of quoting paragraphs (a) and (b) of US 17 CFR 117 on that subject.  Let's refresh our memory and see what the law as we know it says:

          a)   Making of additional copy or adaptation by owner of copy

                Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer
                program to make or authorize the making of another copy or adaptation of that computer program provided:

               1.   that such a new copy or adaptation is created as an essential step in the utilization of the computer program in
                     conjunction with a machine and that it is used in no other manner, or

               2.   that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the
                     event that continued possession of the computer program should cease to be rightful.

          b)  Lease, sale, or other transfer of additional copy or adaptation

               Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise
               transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other
               transfer of all rights in the program.  Adaptations so prepared may be transferred only with the authorization of the
               copyright owner.

Given the fact that there is a change in storage format involved (from the hardware-based format of a set of ROMs to a software-based format such as a computer's recordable storage media), we cannot lay any claim that our new copy is an exact copy of the original.  The actual object code of the software has not changed; what has changed is its delivery system.  This fact was recognized by the courts who had to deal with the subject (Sega vs. Accolade and Nintendo vs. Atari, 1992).  What we are now dealing with is an adaptation of the original, and there can be no debating the matter.  This is where the courts came up with the concept of an intermediate copy with regards to videogame developers.
     Why am I drawing the distinction between an exact copy and an adaptaton?  Look at paragraph (b) of US 17 CFR 117, which many cart backup enthusiasts conviently ignore.  The presence of an exact copy requires the presence of an original vendor-approved copy.  To quote the law, "any exact copies ... along with the copy from which such copies were prepared."  "A-ha!" the theorists will say, "I've got the original cart!"  That's fine and good, but your so-called backup is not stored on the exact same media as your original copy.  The change in format invalidated any claim you could make with regards to the exactness of your copy.  The actual object code may be the same, but the media is not.  What you have is an original copy and an adaptation, not the the original and an exact copy.
     "Well," they stammer, "copyright law says that adaptations are legal.  You said so yourself."  That is true.  A user is permitted to make an adaptation of a computer program in order to get it to work with their system, and this was one of the ten rights of the software user that we discussed last time (point 7 on the user rights list).  Don't forget, though, that this is the one and only right of adaptation that a user has.  Any other rights of adaptation rest with the copyright holder (US 17 CFR 106 & 106A).  For example, it is a well-known practice of Sega Genesis videogame console owners to modify any MegaDrive carts in their possession so they work with their console.  The Genesis and the MegaDrive are the same console sold under different names in different markets, but the MegaDrive carts have a slightly different case housing than do Genesis carts.  Owners adapt them by breaking off a pair of tabs so they will fit in the slot of a Genesis console.  The same logic also applies to different system adaptors (the G/MD PowerBase converter) and adaptors for another vendor's console - all of which are legally recognized forms of videogame cartridge adaptation.  "You see?!" comes the immediate response.  "that makes my cart dumps legal.  Those last two you mentioned are adaptations that involve emulation.  Running software under an emulator is legal."  Yes, running software under an emulator is one of the ten rights of a software user (point 10 on the user rights list).  "Okay then," comes the reply, "what's the problem?"
     I will ignore these pundits brushing over the fact that the last two adaptations I mentioned did not involve a change in delivery system format and directly address their contention. An emulator by its very nature is an after-the-fact product.  Remember, emulators are designed to replicate the functions of systems that are either already in existence or no longer being produced. You cannot make an emulator unless you have two things - knowledge of the system you are emulating and access to that system's software base.  It goes without saying, as any emulator developer worth his or her salt will tell you, that there has to be some form of software base already in existence from which they can work.  They have to have something with which they can test their emulator in order to ensure that it works as well as the original hardware.  Which came first, the chicken or the egg?  Answer - the egg, as I explained last time.  The original system always comes first, followed by its software base (the egg), and then any emulators that might crop up (the chicken).  If you are going to defend the cart dump backup theory, then you have to do it on the basis of the software alone.  An emulator has nothing to do with it.
      I can imagine the face of many an average user turning red in frustration right about now, and some might even be spluttering in rage.  "But ... but ... you haven't told us anything!  Backups are legal!  The law says so!  So what if the emulator has nothing to do with it?  I HAVE THE LEGAL RIGHT TO BACK UP MY GAME CARTS!"
     Wrong.  You do not have the right to back up any kind of game cartridge for any videogame system.
     "WHAT?!"
     Listen, and listen closely.  You have the legal right to backup any software that you have legitimately obtained in conjunction with the terms of its EULA (point 1 on the user rights list).  The only way to obtain a legitimate copy of a piece of computer software stored within some form of permanent storage media is if you are a developer or are associated with a developer (Sega vs. Accolade and Nintendo vs. Atari, 1992).  The average user does not have the right to create such an adaptation unless you are specifically authorized to do so by the copyright owner (US 17 CFR 106).  You, as an average user, do not and never had the right to dump a piece of software stored within a videogame cartridge - even when "fair use" is invoked as an excuse (Sega vs. MAPHIA, 1994).  In fact, current EULA language by all commercial videogame vendors who are still using the format specifically forbids the dumping of videogame cartridges, and it is legal for the vendor to bar this practice by the average user under federal contract law (ProCD vs. Ziedenberg, 1996: also UCC 2-204 and 2-606).  Besides, the very concept of backups implies restoration at some point, and it is impossible to restore your data to a read-only device such as a ROM-based game cartridge (Tony Smith, MacWeek, "Dissecting Sony's Game").  Your adaptation does not qualify as a legitimate backup under federal law.  In fact, it is an infringing copy of the software contained within the original cart (MAI vs. Peak, 1993), and as such is illegal for the average user to possess.
     I can now hear a number of counterpoints quickly being raised by angry users who believe otherwise.  "But what if I'm a developer?"  No problem - your adaptation is an intermediate copy, and such are legally permitted; however, you had better be able to prove your claim of being a developer in the event that the copyright owner or original system vendor just happens to drop by (Sega vs. Accolade, 1992).  "But what if I just want to review the game?  Can't I claim the 'fair use' exception?"  No, and we went through that discussion earlier, remember?  I won't rehash it here, but suffice it to say that you have to have bonafide journalistic creditentals (Bill of Rights, First Amendment) or possess the original before you can make such a claim (Nintendo vs. Atari, 1992).  "Okay, can't I just test it with my emulator?"  No - the very act of possession of an unauthorized "ROM" by the average user violates copyright law (US 17 CFR 501).  "But what about the Betamax case?  I can do anything I please in the privacy of my own home!"  Maybe you can, but how did you get possession of that "ROM" in the first place?  What about all those other "ROMs" that you have?  More importantly, where are the originals from which they were produced?  You can't backup copies of software that aren't in your possession (US 17 CFR 117).  Face it, folks - no matter how you twist it, bend it, invert it, turn it around or even inside out, it is illegal to produce or possess a "ROM" unless specifically authorized by the copyright owner of the computer software involved.
     So much for the cart dump backup theory.  It was fun while it lasted, but it ultimately proved bogus.  The only way you can make a valid copy of the computer code contained within a hardware-based delivery system, without being a developer or working for one, is to first obtain authorization from the copyright holder before you make your dump.  If the cart in question has been released into the public domain (as some have), then there is no problem.  If it hasn't, then you've got a problem.  What does this mean?  If you want to backup your favorite game cart, then go get another cart.  Where do you get a spare cart?  Contact the vendor - almost all of them are on record as stating that they will repair or replace a damaged or defective cart at little or no cost.  I know this isn't what the emulation community wanted to hear, but that's what the law says.

BIOS DUMPING

     This brings up another related issue that I have been putting off until now, since it goes along the same lines as the cart dump.  This is the BIOS dump, which is an image of the original BIOS required by a computer system or videogame console for its initialization and proper operation.  The practice of BIOS dumping goes as far back as 1982 and is still quite common in both the computer industry and the emulation scene.  Reverse-engineering a BIOS is rather tricky, and continues to be a considerable time and resource consuming process as the complexity of newer systems increases.  Many emulator developers would rather not involve themselves in this process; therefore, they find it more convienent to dump a copy of the actual system BIOS and build their emulator around that.  This is where the modern variation of the combined hardware/software emulator, the BIOS dump dependent emulator, first emerged, and the best known current example of this is the now-discontinued PSEmu Pro emulator for the Sony Playstation.
     So is dumping a BIOS legal?  Absolutely not, for the same reason that cart dumping is illegal - it is a violation of the copyrights on the computer code contained within the BIOS.  Unlike cart dumps, though, there is no exception for developers to produce a BIOS dump.  Any unauthorized BIOS dump is an illegal copy of copyrighted computer code regardless of who makes it.  What?!  Why is there no exception for developers, like there is with cart-dumping?  To find the answer, we need to look back at the early days of personal computing.
     The year is 1982.  The place is the "clean room" of Phoenix Technologies, which is in a flurry of activity.  Why?  Because the company is under contract to Compaq Computer and is currently in the midst of a concerted effort at reverse-engineering the IBM PC BIOS.  Compaq wants a reverse-engineered BIOS so it can build the world's first legal PC clone computer.  If they can accomplish that one task, Compaq reasons, then they can build the rest of the computer from off-the-shelf parts.  The suggestion comes up that Phoenix should make an exact copy of the IBM PC BIOS.  "No, no!" someone shouts, "that's copyrighted computer code!"  The decision is eventually made to reverse-engineer as many functions as possible in order to get it to work exactly like the real thing, while dropping ROM BASIC along the way.  The finished product is subsequently released to the market, and IBM sues for copyright infringement.  The courts are unable to find any proprietary IBM microcode within the Phoenix BIOS.  Phoenix is cleared of all charges.
     About the same time, in the same year, a deal is quietly being completed behind closed doors that would prove to have profound implications for the CPU industry.  The senior partner in the deal is Intel Corporation, and the junior partner in the deal is AMD Technologies.  Intel needs some help in producing the x86 series processors of the day - especially with regards to its new 80286 processor.  The two companies enter into a technology transfer agreement, in which AMD receives copies of proprietary Intel microcode to use inside its clone CPUs so long as they do not share it with anybody else.  AMD agrees, and shortly thereafter begins producing legal clones of Intel's 80286 CPU.
     Move ahead in time to the year 1983.  The place is federal district court, where a copyright infringement lawsuit is underway.  The plantiff is Apple Computer, maker of the immensely popular Apple II personal computer.  The defendant is Franklin Computer, makers of the Franklin 1000 clone computer.  Franklin had decided to cash in on the success of the Apple II by producing its own clone.  In order to cut corners and reduce development time, they dumped the Apple II BIOS and used parts of its microcode inside the Franklin 1000 BIOS.  Apple sues, and the court finds Franklin guilty of copyright infringement under federal law.  The resultant fines and levies put Franklin out of business.
     Jump ahead in time six years to 1988, where a young man named Simon Douglas is working on a product called A-Max that will provide Macintosh emulation for the Amiga.  Fully aware of the IBM vs. Phoenix and Apple vs. Franklin lawsuits, he builds his product so that it requires the use of a genuine Macintosh BIOS in order to function.  He also designs an external adaptor (and later a plug-in card) that will allow users to use the Macintosh BIOS with A-Max without violating Apple's copyrights on the internal BIOS microcode.  His foresight is confirmed a year later in the courts, who rule that this use of the Macintosh BIOS in its original format is perfectly legal.
     Now we shall take a rather large a jump to 1994, in which an appeals court ruling was handed down that shook the CPU industry.  The platiff is Intel Corporation.  The defendant is AMD Technologies.  The issue is the Am386 CPU, which uses proprietary Intel 80286 microcode that the company had originally licensed from Intel as part of their secret pact back in 1982.  The court rules that AMD's use of proprietary microcode, although originally permitted under their secret pact with Intel, will have to cease.  AMD promptly settles with Intel and pays them for the right to continue using that code within their current product line.
     We finally arrive at the present, where Sony is engaged in a fierce legal battle with Connectix.  Sony, the international electronics giant, is the vendor of the popular Sony Playstation (PSX) videogame console.  Connectix, a software vendor for Macintosh systems, released the Virtual Game Playstation in late 1998, which was the first commercial PSX emulator to be made available to the public.  Sony promptly sues for intellectual property infringement.  The courts deny their request for a preliminary injunction but Sony appeals, claiming that Connectix has used proprietary Sony microcode within the Virtual Game Station.  The appeal is deemed reasonable based on existing evidence and is granted.  Connectix is forced to withdraw its emulator from the market pending outcome of the the lawsuit.
     Are you beginning to get the picture? It is illegal for vendors to use any copy or portion thereof of a competitor's proprietary computer code within their own products.  In order to do so, you must either provide a means for the user to run that code within its original delivery format and contained within its original delivery system, or you must license that code from the copyright owner.  The computer code stored within a system BIOS is specifically covered by case law, as the examples involving IBM and Apple demonstrate.  If it has not been placed into the public domain, then licensing that code is the only legal way to use it, as the Intel vs. AMD case shows.  If you can come up with a way to use an original system BIOS without dumping it, as was the case with the original A-Max, then that is also legal.  What does this mean?  It is illegal to duplicate an actual system BIOS in any way without the authorization of its vendor.  This makes the practice of BIOS dumping illegal.
      I know some of you are immediately going to start claiming that you are only making or obtaining a "BIOS backup," but you will not find any refuge in that outlandish theory, either - no more than you did with the preposterous theory of cart backups.  Like a game cart, a system BIOS is a piece of computer hardware.  In its original form, it is not intended for any use other than proper operation of the computer system in which it is installed.  You do not backup hardware components of your system in the same manner as you would a piece of system software - you obtain spares for the part(s) in question.  A BIOS dump is not a valid spare due to the change in delivery system, which is the same case as with cart dumps.  If you need to obtain a replacement part for your system, like the integrated circuits used to store a computer BIOS, then you have to obtain the part from the original vendor or a licensed vendor.  If a legal clone exists, regardless of format, you may use that instead.  Even if the system in question is equipped with a so-called flash BIOS, you do not have the right to dump it except for the sole purpose of upgrading - an action of which most system vendors approve, provided you destroy the resultant dump of the original BIOS once the upgrade is complete.  The only legal ways in which you can use a BIOS image with an emulator is if either the original vendor authorizes the use of an BIOS dump or you can find a reverse-engineered BIOS image whose author(s) have placed it into the public domain (which is something of a rarity).  The novel concept of a "BIOS backup" of proprietary original system vendor computer code is both ridiculous and unsupported by either the industry or the courts except in certain carefully defined vendor-approved cases, such as the flash BIOS upgrade that I briefly touched upon a moment ago.  The only way you can legally create a BIOS image for any purpose other than reverse-engineering is with the approval of the original system vendor (Apple vs. Franklin, 1983).  Creating an image for the purpose of a "BIOS backup" is as illegal as it is to use an unauthorized BIOS image with an emulator.

PUBLIC DOMAIN "ROMS"

     This leads us to the next obvious question, and the one which the frustrated majority is by now quietly asking.  "Is there such a thing as a public domain 'ROM'?"  You may be surprised to know that the answer to that question is "Yes."  Public domain "ROMs" do in fact exist, even though a lot of original system vendors and their allies seemingly do not want you know about this - with some even going so far as to flatly deny their existence.  Are you intrigued?  Read on!
     The idea of public domain software is widely credited to the invention of the LOGO programming language in 1980, which was generally available to anybody who wanted to use and modify it free of charge.  The concept was given the modern twist of shareware in 1982 by Andrew Fluegelman with his PC-Talk communications software; the initial version was free, but continued support and updates were only available at a price.  Today, both concepts are firmly established parts of the computer software community, with thousands of such pieces of software produced each year.
     Computer software operating under emulation is no different that computer software operating under real hardware.  It is regulated by the same laws and principles as any other kind of software.  This means that there are a group of individuals either directly or indirectly involved with the emulation community who, like the "real" software community, do not mind or object to their software running under emulation.  Therefore, they do what regular software authors and vendors do who feel the same way - they place their software in the public domain.  Emulator authors do the same thing, with a handful making available their programs as either shareware or commercial products and the vast majority as public domain offerings.  Back to the subject, though - there are a steadily growing number of public domain "ROMs" available for use with your favorite emulator.  Public domain "ROMs" are perfectly legal to both possess and distribute, since they are not under any kind of copyright restriction.
     Unfortunately, there is a body of opinion within the emulation community that feels that there are a number of "ROMs" that were commercial in origin but are now public domain.  Let us take a brief look at some of these "ROMs" and whether or not they are indeed public domain.

     1)  "ROMs" without a copyright notice

          Prior to the United States joining the Berne Copyright Convention, all copyrighted works (with certain exceptions
          such as paintings and so on) were required to contain a copyright notice.  Berne waives this requirement, and
          grants automatic copyright protection to a given work the moment that it is created. This means that any "ROM"
          you may run across without a copyright notice is still protected by copyright.  The only way to know for sure
          whether or not these "ROMs" are public domain are to check with the original author or vendor (preferred) or
          with a person or organization who are established authorities on the subject.  That way, you can find out whether
          or not the author has indeed placed that "ROM" into the public domain.

     2)  Prototype "ROMs"

          These go by a number of names, depending on the development stage they had reached prior to their conversion
          into "ROM" format. Alphas are early copies of a computer program that are almost always non-functional to a large
          degree, and represent an early stab at actually implementing the intended concept. Betas are late-stage copies that
          are at least functional to some extent, though they tend to be rough around the edges and rather buggy.  Test copies,
          which are more commonly called protos, are usually identical or almost identical to the finished product, intended
          for late-stage performance testing or "sneak peak" distribution, and can usually be identified by the crudeness or lack
          of title screens or legal disclaimers.  Regardless of which of these examples you encounter, a prototype "ROM" is
          protected by the same copyrights as if it were an actual finished product.  Just because the "ROM" in question
          is a prototype does not automatically mean that it is a public domain "ROM."  It must be released into the public
          domain by either its author or vendor before it can be freely distributied, just as if it were a real commercial title.

     3)  Unreleased "ROMs"

          These are programs that for one reason or another were never commercially vended.  Unreleased "ROMs" are
          protected by copyright law.  The fact that the program was never released does not void its copyright protection.
          Remember, distribution is one of the rights of the copyright owner.  If they chose not to distribute it, then that does
          not automatically put that program into the public domain.  You must first get permission from the copyright holder
          before you can legally distribute an unreleased "ROM."

     This is all that we shall discuss on the subject of public domain "ROMs" for now.  We will deal with it again when it comes time for our discussion of emulation's relationship with the Internet..

THE URGE TO PATCH

     Computer software, being a human creation, is never perfect.  It may have one or more internal coding problems that prevent it from working as designed.  It may have been designed in such a way as to not work with your computer system.  There are even cases where users develop a personal pique against certain aspects of a computer program, even though that program may work just fine.  This is where software patches enter the picture, which are designed to fix a program in one or more ways so that it will better serve the needs of the user.  So how does this apply to the concept of "ROMs?"
     Insofar as I have been able to determine, there are at least three different kinds of software patch for a "ROM."  The hack patch alters the graphics, sound, or performance of the "ROM" in some noticeable manner.  These are most commonly made for videogame "ROMs," as they tend to enhance or otherwise change the game involved in some fashion.  The runtime patch permits an otherwise difficult "ROM" to work with a given emulator.  It removes or alters certain parts of the internal "ROM" microcode that would otherwise cause difficulties for the emulator.  Finally, and most importantly, there is the ever-popular translation patch.  This can be installed into a given "ROM" so that it is readable in the user's native language.
     This begs the question - is "ROM" patching legal?  Yes and no, depending on the kind of patch and the "ROM" involved.  Yes, it is legal if you are dealing with a public domain "ROM."  No, it is not legal if you are dealing with a "ROM" that is still protected by copyright.  Why?  The right of alteration with regards to a copyrighted piece of computer code is exclusive to the copyright owner (US 17 CFR 106).  Users have a limited right to adapt a piece of copyrighted computer code to work on a given system (US 17 CFR 117).  The right of adaptation deals exclusively with the actual operation of that piece of code on the system in question.  Users have the right to adapt a program to work with their system, so if a legal "ROM" is involved then runtime patches are perfectly legal (point 7 on the user rights list); however, the same is not true of either hack or translation patches.  The right of adaptation does not extend to the on-screen presentation (Playboy vs. Frena, 1993).  Limited copyright protection is afforded to on-screen presentations (Apple vs. Microsoft, 1992); furthermore, any textual presentations displayed on a computer screen can be protected under copyright law (Digital vs. Softklone, 1987).  In addition, the United States recognizes copyright protection for computer software manufactured in foreign markets (US 17 CFR 104A).  This means that foreign market "ROMs" are protected by copyright just the same as domestic "ROMs."  It is illegal to patch a "ROM" so as to alter the on-screen presentation of any protected material, regardless of country of origin, without the consent of the copyright holder.  This provision of U.S. copyright law was added as a direct result of the United States becoming a member of the Berne Copyright Convention in 1995.
     This problem was recently illustrated by an incident on 13 April 1999 involving the KanjiHack "ROM" translation service and ASCII Software of Japan.  KanjiHack had produced an English translation patch for the "ROM" of the ASCII release RPG Tukuru 2 for the Super Famicom videogame console.  This title is better known to English-speaking Super Nintendo fans as RPG Tool: Super Dante 2.  They offered this patch via their Internet site, which was apparently hosted by a service operating out of the United Kingdom (UK).  ASCII had never authorized any third party to develop an English patch for the program, which meant that KanjiHack's translation patch was a direct violation of ASCII's copyright on RPG Tukuru 2.  As such, it was within ASCII's legal rights under UK copyright law to demand that KanjiHack pull the patch, and they did so following the procedures laid out by that law.  KanjiHack complied, with the result that ASCII did not carry through with its threatened legal action against them.  The reason why this should be noted is that both Japan and the UK are WIPO Treaty signatories, and they have modified their copyright laws in this regard.  Since the United States also recognizes the WIPO Treaty, and has also modified its laws along the same lines as Japan and the UK, then anybody who distributes the KanjiHack translation patch for the RPG Tukuru 2 "ROM" within the United States without ASCII's consent is violating federal copyright law.

THE RULES HAVE CHANGED

     Almost everything that we have discussed up to this point changed when President Bill Clinton signed the Digital Millenium Copyright Act (DMCA) into law on 28 October 1998.  Among other things, it modified several sections of the current U.S. Copyright Act and added a whole new section - Chapter 12, Copyright Protection and Management Systems (US 17 CFR 1201-1205).  I will deal in greater detail with the DMCA in our discussion of Internet-related issues, since that is where it has the greater impact on the emulation scene.  There is a provision that deals specifically with the concepts that underlie the creation of "ROMs," though, and the relevant section is US 17 CFR 1201:

     1A. No person shall circumvent a technological measure that effectively controls access to a work protected
            under this title.

            [editor's note - I have omitted the rest, as it deals primarily with regulatory oversight, implementation provisions,
            and a survey to be conducted on a regular basis by the Library of Congress in conjunction with the Department
            of Commerce with regards to the legalization of selective technologies covered by this law.]

     2.    No person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product,
            service, device, component, or part thereof, that --

            A)   is primariliy designed or produced for the purpose of circumventing a technological measure that effectively
                   controls access to a work protected under this title.

            B)   has only limited commercially significant purpose or use other than to circumvent a technological measure that
                   effectively controls access to a work protected under this title.

            C)   is marketed by that person or another acting in concert with that person, with that person's knowledge, for use
                   in circumventing a technological measure that effectively controls access to a work protected under this title.

     3.    As used in this subsection,

            A)   to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted
                   work, or otherwise to avoid, bypass, remove, deactive, or impair a technological measure without the authority
                   of the copyright owner.

            B)   a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its
                   operation, requires the application of information, or a process or a treatment, with the authority of the
                   copyright owner, to gain access to that work.

Did you like that? Or are you (like most of the rest of us) getting a queasy feeling in the pit of your stomach?  In other words, any product that can bypass any kind of computerized security system is illegal - period.  With regards to emulation and computer software, this includes any measures that vendors may include as part of their products to prevent unauthorized duplication, such as copy protection schemes and those tiresome antipiracy systems that certain vendors (a-hem!) like to include as part of their videogames.  The practice of cart dumping and anything resembling it (including BIOS dumping), according to this and other provisions of the DMCA, as well as the technologies involved, are now illegal for the average user to own, obtain, or vend.  The vendors have won.  If you are a passionate videogame collector and haven't dumped those game carts in your collection yet, that's just too bad.  Cart dumping and anything having to do with it, including the technology, is now effectively banned in the United States and its territorial possessions to all but a select few.
     Remember that business about the translation patch?  ASCII made its claim against KanjiHack's unauthorized translation patch on 13 April 1999 - well after the DMCA revisions to the U.S. Copyright Act were in place.  If this had happened within the United States, then their claim would have been based on the new form of the U.S. Copyright Act, which restores copyright protections to any and all works of foreign origin currently protected by copyright.  The additional modifications made by the DMCA with respect to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WCCT) are rather extensive and I will not duplicate them here; rather, I will quote from the U.S. Copyright Office's official summary of the DMCA in this regard.  If you have the Adobe PDF version of the DMCA summary, this is the last paragraph on page 2:

     Restoration of Copyright Protection:

          Both treaties require parties to protect preexisting works from other member countries that have not fallen into
     the public domain in the country of origin through the expiry of the term of protection.  A similar obligation is contained
     in both the Berne Convention and the TRIPS Agreement.  In 1995 this obligation was mentioned in the Uruguay Round
     Agreements Act, creating a new section 104A in the Copyright Act to restore protection to works from Berne or
     WTO member countries that are still protected in the country of origin, but fell into the public domain in the United States
     in the past because of a failure to comply with formalities that then existed in U.S. law, or due to a lack of treaty relations.
     Section 102(c) of the DCMA amends section 104A to restore copyright protection in the same circumstances to
     works from WCT and WPPT member countries.

     There is language in the DMCA that briefly assures that such traditional exemptions as "fair use" will continue to go on their merry way, but its wording is such that it effectively returns almost all control with regards to any unauthorized use or modification of copyrighted computer software back into the hands of the copyright owner.  Reverse engineering is still permitted, but under tightly controlled conditions - no freeware hacking as in the days of old.  Field testing of new or soon-to-be-released products and performance testing of existing products (with or without the consent of the copyright holder) is also permitted - again, under rigidly established guidelines.  Encryption scheme hacking is all but banned.  Anything that infringes upon or alters in any way the original intended display or performance of a copyrighted work is likewise tightly controlled.  The U.S. Copyright Act, which used to be fairly neutral with regards to technology issues, is now decidedly slanted in favor of the vendors.

INTROSPECTION

     So what have we learned?  We can now agree on a common definition for the emulation community's use of the term "ROM." A ROM is piece of computer software stored within a unique archival format not found in everyday personal computer usage that is intended to work with special program development tools, or some form of an emulator, or both.  As far as the first part of "the great emulation debate" goes, we have established the following:

     -  It is legal to produce a "ROM" from a piece of computer software stored within any form of permanent
         storage media if and only if you are a bonafide developer or legitimately affiliated with same.  Such "ROMs"
         are defined under case law as intermediate copies of said software, and they are to be treated as if they are the actual
         originals from which they were made.

     -  It is illegal for the average user to produce or obtain a "ROM" of a piece of computer software stored within
         any form of permanent storage media if such practices are not authorized under the software's EULA.  With
         regards to the specific practice of cart dumping, this does not void the user's archival rights under copyright law, since
         one cannot restore a "ROM" copy to a read-only device.  In such cases, the copyright owner must make reasonable
         provisions within the EULA to replace any damaged or degraded copy of that software.  If such provisions are not
         included within the EULA, then federal law takes precedent and the user may archive that software by any means
         necessary as permitted under the law.

     -  It is illegal for the average user to own, obtain, distribute, or otherwise market any kind of product that
         bypasses or violates the security systems of a computer or videogame console.  Among other things, this
         effectively makes the manufacture, sale, distribution, and use of cart dumpers by anybody who cannot demonstrate
         bonafide development concerns illegal under federal copyright law.

     -  It is illegal to dump, upload, download, distribute, modify, or otherwise infringe upon the copyrights for
        "ROMs" of computer software from foreign markets that are signatories to the Berne Copyright Convention,
         as well as those who are signatories to the TRIPS Agreement, the WCT,  or the WPPT treaties of the World
         Trade Organization (WTO).  Protections for qualifying foreign software were restored in full as of 1995 and further
         strengthened and expanded as of 1998.  Qualifying foreign software is accorded the same rights and protections as
         domestically produced software under U.S. copyright law.

     -  It is illegal to produce any kind of patch for a "ROM" that alters any protected elements of the on-screen
         presentation without the consent or authorization of the copyright holder.  The right of alteration or modification
         rests solely with the copyright owner, with the specific exception of producing an adaptation that will work properly
         with your system.  Translation patches in particular do not qualify for this exception, as the displayed language of the
         software has nothing to do with the actual internal execution of its object code.

     -  Any computer program without a copyright notice, any prototype, or any title that was unreleased for any
         reason is still protected by copyright law to the same extent as is any other piece of computer software.  To
         lapse into emulation slang for a moment, it is illegal to distribute alphas, betas, protos, tests, or any other form of
         unfinished or unreleased piece of code without the consent of the copyright holder.

     -  It is legal to produce a piece of software intended for public domain release that you then convert into some
         form of "ROM" format for use with a given emulator.  You, as the author of that program, have the right to
        develop it for use with any computer system you choose, and you have the right to place both the original and the
        resultant "ROM" into the public domain regardless of whether or not you are a licensee to the original vendor for the
        system(s) or emulator(s) in question.  Remember, the right of distribution, along with the ultimate right of alteration,
        rests with you - the copyright owner.  If you choose to release your program as a public domain "ROM" for use
        under emulation, then that is your business and not the original system vendor's.

     -  It is illegal to dump the BIOS of a computer system.  Furthermore, it is illegal to copy, distribute, or otherwise
         reproduce a BIOS image in any form without the consent of the original system vendor.

This ends our discussion of common emulation community practices with regards to the software base.  Now you know the legality of the issues concerning "ROMs," the BIOS dump, and "ROM" patches.  You may continue to argue these issues, and I have no doubt that some of you will (or will deliberately choose to look the other way), but you can no longer claim ignorance of the law in this regard.  You now know what you can and cannot do.  It's sad that many will choose to do otherwise, because this will encourage the vendors to sponsor even more concerted attacks on the emulation scene, such as was recently leveled with the DMCA.
     Next time, we shall conclude "the great emulation debate" with the second and final part, which will take look at Internet-related issues and the legal existence of emulation within this media.

REVIEW QUESTIONS

1.   What is software bootlegging?  How does it relate to the concept of software piracy?

2.   What is a "ROM?"  What are the two different types of "ROM?"  How did each come about?

3.   What is cart dumping?  How did this practice come about?

4.   Why was it not illegal for the average user in the United States to own a cart dumper prior to 28 October 1998?

5.   Which two court cases established the legality of cart dumping?  What were the limits they placed on its use?  What are
      two important points to remember regarding the ruling in these two cases?

6.   What approach did videogame cartridge vendors eventually adopt to combat the perceived "broad legality" of cart
      dumping?  How were they able to justify this approach?

7.   Can you explain the cart dump backup theory?  How did it come into being?  Is it valid or not?  Explain.

8.   Is a cart dump an exact copy or an adaptation of the original game cartridge?  How does this square with the rulings by
      the courts with regards to legal cart dumps by developers?

9.   Do emulators play a valid role in the cart dump backup theory?  Why or why not?

10. Why are EULAs so important with regards to the cart dump backup theory?

11. What is the proper way for the average user to legally "backup" a videogame cartridge?

12. Are BIOS dumps legal?  Why or why not?

13. Is there such a thing as a public domain "ROM?"  Why or why not?

14. Name three different types of "ROM" that the emulation community frequently assumes to be in the public domain, and
      explain why each is not.

15. How did passage of the Digital Millenium Copyright Act affect "ROMs?"

THOUGHTS TO PONDER

1.  How would you define the term "permanent storage media" with regards to computer software?  Is it legal to archive
     forms of permanent storage media that are not hardware-based?  Why or why not?

2.  Can a EULA ever be used to ban all forms of software archiving?  Why or why not?  Be sure to justify your answer with
     federal statutes, examples of case law, or both.

3.  Is the mere claim of developer intent sufficient to justify either production or possession of copyrighted "ROMs?"  Why
     or why not?

4.  Will there ever come a time in which an emulator is created before its software base?  Why or why not?

5.  If unauthorized alteration of software is illegal under copyright law, regardless of country of origin, then why are there so
     many software patches available in the public domain?  Why do some vendors tolerate this situation and others do not?