Transfers of copyrighted files over the Internet have become rampant.  Once largely the problem of the Recording Industry Association of America in regards to MP3s1, file swapping has spread to DVDs, computer applications, and many other different types of files.  Relatively new to this cyber-piracy is the video game emulator.

An emulator is a program that runs on a computer and mimics a Nintendo console machine, such as the Nintendo 64, or the Playstation console.2  Video game consoles are hooked up to television sets, allowing one to play games on them.  Emulators do not mimic the function of individual video game cartridges or CDs that are played on these consoles.  Instead, they are used to run ROMs, which act as the games that are on video game cds and cartridges.  Emulators and ROMs are files, and can be transferred as readily as MP3s, DVDs, or computer applications.  The latter files have continued to be swapped heavily on the Internet, despite the Napster case.  For example, Morpheus3 is a program similar to Napster, but has now been sued and has consequently filtered out copyrighted material in its search application.  However, numerous similar programs are ready to take its place, such as Blubster4 and WinMx.5
There is no foreseeable end to the swapping of copyrighted material.6  Therefore, in order for console video game makers to stop the piracy of their video games, they must be prepared to not end the means of conveyance of these files, but control the creation and distribution of these files.

 As discussed earlier, emulators emulate the way video game consoles run video game cartridges or cds.  Instead of CDs or cartridges, files known as ROMs are run on emulators and mimic the games found on cds and cartridges.  Hackers, who usually use a process called "reverse engineering", create emulators and ROMs.  Reverse engineering involves electronically taking apart a program and then learning how it works by engaging in this process.7

Once emulators and ROMs are created, they are disseminated through the Internet on web pages, which offer them free to anyone who is able to download them.8  As hackers are not coordinated in their efforts at creating these files, there may be many different versions of an emulator for a video game console.  For example, Nintendo's first video game console was called the Nintendo Entertainment System or NES.9  There are several different emulators for the NES and include, but are not limited to:  FCE Ultra, Jnes, Loopynes, NESten, Nester, RockNES and Ines.10  Most ROMS work on any of these different emulators, but one may find a few which will only work on one emulator.  Likewise, Nintendo produced the Super Nintendo Entertainment System or SNES11, when the NES became technologically obsolete.  The emulators for the SNES include, but are not limited to: SNES9x and ZSNES.12  Providers of emulators and ROMs base emulators and ROMs primarily on video game systems that have become obsolete due to perceived legal constraints or simply because of self-restraint.13 However, there are a number of hackers and website owners who do provide ROMs and emulators based on newer generation video game consoles.14  The dissemination of emulators and ROMs over the Internet has become very prevalent over the last few years.  A search for "emulator," "ROM," and "Nintendo" returned 86,100 results on the Google search engine.15

Those opposed to emulators and ROMs include the manufacturers of video game consoles, such as Nintendo,16 Sony,17 and Sega.18  Also, the manufacturers of games for these consoles vehemently oppose this technology.  These manufacturers are part of a group named the Interactive Digital Software Association, or IDSA19.  The IDSA believes that video games are intellectual property that continues to retain value.  For example, Hasbro has acquired the Atari library of games.20  Atari games were made for a console in the 1980's that are no longer available.  Hasbro may want to reissue these "classic" games on current generation console systems, which currently include the Nintendo Gamecube,21 the Sony Playstation 222, and the Microsoft Xbox.23  If these games are available freely over the Internet, then Hasbro will not be able to gain any benefit from the Atari games they paid for.  Also, the IDSA argues that not only "classic" games are made into ROMs, but also games currently in stores, thus directly injuring economically video game manufacturers.24

Nintendo has taken a stance similar to the ISDA.  Nintendo's website contains a "Frequently Asked Questions" section about emulators and ROMs.25  It contains the following statement, "The introduction of video game emulators represents the greatest threat to date to the intellectual property rights of video game developers. As is the case with any business or industry, when its products become available for free, the revenue stream supporting that industry is threatened."26  Nintendo bolsters this statement by averring that, "Distribution of a Nintendo emulator trades off of Nintendo's goodwill and the millions of dollars invested in research and development and marketing by Nintendo and its licensees."27  Nintendo argues that intellectual property has been strenuously earned, and therefore should be protected like any other property.  Of course, this statement misinterprets the purpose of the Copyright Act, which does not serve to reward hard work, but to protect intellectual property only insofar that it helps create and nurture new ideas.28

The clash between hackers' and consumers' interest in free video games and the IDSA and console manufacturer's interest in protecting their intellectual property has resulted in a few court cases.  In Sega Enterprises v. Maphia,29 a federal district court imposed an injunction30 against a website that allowed users to purchase a machine that allowed a person to copy a Sega video game onto a computer disk.31  People could then upload Sega games and download them.32 This violated the copyright law, which prohibits the reproduction of copyrighted works.  A prima facie case for copyright infringement involves the ownership of a copyright and the infringement of that copyright by duplication.33  This prima facie case may be defeated by the fair use exception to the Copyright Act.  The fair use exception involves the balancing of four factors: the purpose and character of the use made of a copy of a work, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work.34  The court ruled that the fair use exception did not apply, due to the commercial nature of the copied Sega games and the fact that the website owners encouraged the downloading so that Sega games would not have to be bought.35  The court also ruled that a person could not facilitate another's violation of the copyright law, which was the reasoning behind the holding for the injunction.36

In Sony v. Connectix37 and Sony v. Bleem,38 the Ninth Circuit Court of Appeals ruled that emulators were legal under the fair use exception to the 1976 Copyright Act.  ROMs based on copyrighted games were largely not discussed and are still deemed illegal under the Act, however, as pirated software.

Despite these cases,39 ROMs have continued to be provided and downloaded over the Internet.  Although there have not been any more high profile federal cases concerning emulators or ROMs since Sony v. Bleem, Sony, Sega, Nintendo, and the ISDA still oppose the downloading of emulators.  Instead of high profile action in court, these groups use "cease and desist" letters to try to stop websites from providing ROMs and emulators.40  Past legal precedent has largely been in favor of video game manufacturers, the manufacturers still oppose ROMs and emulators, and there is the threat of future legal action against websites that provide ROMs and emulators for downloading.  Yet, there is a large number of websites that provide ROMs and emulators.

There are several reasons why ROMs and emulators are still prevalent.  Firstly, emulators are almost unquestionably legal.   Some ROMs are legal and others illegal, which frustrates enforcement against purely illegal ROMs.  Secondly, website owners that provide ROMs that are questionably illegal contend that the archival copy exception applies to the copyright infringement perpetrated by hackers that created ROMs.  Thirdly, there are those who believe that video games that have been around for longer than two years are public domain.  Fourthly, ROM-providing websites mistakenly believe that by providing disclaimers that they are free from liability of misuse of ROMS and they will be shielded from legal action.  Lastly, peer-to-peer search engines have allowed downloading without the intermediary step of a website.  Because the necessity of console and software manufacturers creating their own ROMs, which is the main proposition of this paper, rests on the continuing pervasiveness of illegal ROMs, each of these reasons for prevalence will be examined in turn.

Although it is very questionable as to whether ROMs based on copyrighted games are legal, emulators are legal.  Court decisions have affirmed this status of legality.41  Emulators also fit the fair use exception in examples not specifically used by the courts.  Emulators can be used to run games created solely for the emulator, and not mimicked from a previous commercially available cartridge or CD.42  Also, some software manufacturers have voluntarily released their games into the public domain.43  There are various reasons for software manufacturers and copyright holders to do this.  Release into the public domain may result in renewed interest for the characters in that game in a presently commercially released video game.  In addition, the copyright holder may want to drum up support for other mediums that base their storylines on the same storyline inherent in the copyrighted game.

The widespread use of emulators and supported legality by courts means that there will always be a demand for illegal ROMs on the legal emulators.  This is supported by economics.  Just as one needs to buy videotapes for a video tape player or video games for a video game console, one needs ROMs for an emulator.  The supply of emulators fuels the demand for ROMs, including illegal ROMs based on copyrighted games.

Although the legality of emulators may result in the increase in the use of ROMs, it does not make ROMs that mimic copyrighted games legal.  The Sony cases44 seemed to affirm that ROMs based on copyrighted games are illegal, thus discounting the prevalence of illegal ROMs by creating an exercise and prosecution of legal rights.  However, the Sony cases only dealt with the "fair use" exception to the Copyright Act.  Hackers, website providers, and down loaders of ROMs all allege that ROMs are perfectly legal under the archival copy exception to the copyright laws.
The archival copy exception to the copyright laws is stated in 17 U.S.C. 117 and reads:

(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.45

Proponents of ROMs counter that most ordinary people do not have the means to make archival copies.  Therefore, websites that provide ROMs based on copyrighted games are only aiding those in making copies, not actually transferring the ROMs.47  Although the Copyright Act provides no explicit exception for this, ROM proponents may argue that it is in the spirit of the law.  Nonetheless, the plain language of the Copyright Act reads otherwise.  However, this has not stopped many from taking the chance of being prosecuted due to the archival copy exception to the Copyright Act.

There are some purveyors of ROMs based on copyrighted games that believe the archival copy exception is totally unnecessary.  These people instead rely on another section of the law, the Copyright Information Act Proposed Update of 1995.  This provision states, "Any software no longer being sold with a copyright older than 2 years becomes public domain, the reason being that such software becomes obsolete because of advancements on the medium and technology."48  This would seem to suggest that any video games not made commercially available in the last two years is forcibly entered into the public domain, allowing hackers to provide ROMs of these games.  There is only one problem with this legislation.  It has never been ratified, if it has existed at all.  The United States Code does not contain this provision, and no intellectual property treatise mentions the Copyright Information Act Proposed Update of 1995 or its contents.

Instead, corporate copyright holders hold their copyright for 75 years from the creation of a work made under hire under the Copyright Act.  This is regardless whether it is software or if it has no longer been made commercially available beyond the past two years.  The "Frequently Asked Questions" portions of the intellectual property web pages provided by both Nintendo49 and the IDSA50 attest to this.

Despite the shaky foundations of the archival copy and public domain exception, website owners are willing to risk providing illegal ROMs, as long as they do not suffer any liability for it.  These website owners believe that a disclaimer disavowing any liability for the illegal use of ROMs by down loaders will shield them from paying any damages to software manufacturers.  Sometimes these disclaimers must be consented to before one may download, but other disclaimers are merely displayed.

The first type of disclaimer rests on the "non-voluntary public domain" exception:

°°° Disclaimer °°°

All the games uploaded on this site can be found on many cd-roms released over the last few years. If any person or software company for whatever reason wishes a specific game to be removed from this site, then please contact me and I will remove the software immediately.

It is in no way the intention of this site to breach anyone's exclusive legal rights.

This site is only intended as a tribute to the Commodore 64 and its software!

The "Copyright Information Act" Proposed Update of 1995 states: "Any software no longer being sold with a copyright older than 2 years becomes public domain, the reason being that such software becomes obsolete because of advancements on the medium and technology."

If anyone has any problem with a game on this site, I will remove it at once.51

The second type of disclaimer rests on the "Archival Copy" exception to the Copyright Act: Console games/arcade games are classified as computer programs.

So, according to the copyright law, you CAN own a copy of a software program you own (contrary to what Nintendo and the IDSA wants you to believe). But in the case of ROMS, you can't copy them so websites have to distribute them.53

This disclaimer came from a web page that included a copy of 17 U.S.C. 117 (1978).  This type of disclaimer often includes a provision that the ROM downloaded must be deleted from the down loader's hard drive after twenty-four hours.54  There is no provision for this in the Copyright Act, and seems to be made up by website owners to provide further protection.

 Disclaimers may not protect these website owners.  The inclusion of these disclaimers in this paper is not meant to be explored as a legal topic, but to merely portray that they are being employed, and in turn are encouraging those who provide illegal ROMs to continue to do so.  Disclaimers do not prevent the ISDA or Nintendo from prosecuting these websites or issuing "cease and desist" letters.

The primary means of enforcement by software manufacturers, as mentioned earlier is the "cease and desist" letter issued to owners of websites that provide emulators and ROMs.  With the advent of post-Napster peer-to-peer networks, many different files, in addition to MP3s, may be downloaded from the Internet from other users' hard drives.  These networks make the primary "cease and desist" letter method of enforcement obsolete, because the main target of enforcement, the web page owner, is no longer necessary to download a ROM.  As more illegal ROMs are promulgated through the Internet, it will be harder to find each and every one of them.  Right now, the IDSA can prosecute website owners.  The IDSA, however, cannot scan every hard drive that contains illegal ROMs that participate in peer-to-peer networks.  Therefore, the IDSA has a limited time in which to proactively stop the alarming spread of ROMs, preferably before peer-to-peer networks replace websites as the primary method of providing illegal ROMs.

The preceding factors of why ROMs are becoming so prevalent illumine why now is the opportune time for the ISDA and console manufacturers to create and provide their own emulators and ROMS.  The legal nature of the emulator allows the user of that emulator to play unique games created specifically for the emulator that violate no copyright and ROMs that have been released into the public domain.  This creates in the user an urge for other ROMs, specifically those that rest on copyrighted games.  The archival copy and "non-voluntary public domain" exceptions to the Copyright Act, legal or not, legitimizes this demand in website owners' minds, providing a shield for providing the supply of ROMs based on copyrighted games.  This shield is put into a visible form by the providing of disclaimers, which embolden those who provide ROMs.  Lastly, the disclaimers will no longer be needed, as saturation will occur and trading will simply proceed on peer-to-peer networks.

The uncertain nature of the legality of ROMs among the internet community will ensure that ROMs continue to be prevalent despite past, adverse court decisions and "cease and desist" letters and prosecution employed by Nintendo and the ISDA.  However, although legality is relevant in portraying why illegal ROMs will continue to proliferate, legality is irrelevant in deciding that console and software manufacturers should propagate their own ROMs, because the manufacturers will be benefited in a wide array of ways.

Firstly, it would be fairly easy to provide ROMs and emulators.  Hackers have already shown that the technology is present and readily available to create ROMs.  Advertisements for IDSA-sponsored websites providing ROMs could also be put into video game magazines or included with video games sold for consoles.  Furthermore, the ROMs created by the copyright holders could be created so as to only work on emulators that they have created.  Thereafter, there could no longer be a claim that the video game companies do not provide an archival backup copy, therefore necessitating the utilization of a web page that provides them.  This effectively defeats an archival copy exception challenge to the software manufacturer's copyright protection.

Secondly, the providing of ROMs would allow the copyright holders to control the quality of ROMs.  Emulators currently allow users to create cheats and to record their games.  The IDSA could provide these features, or delete them if it compromises the integrity of their intellectual property.

Thirdly, the IDSA, if it wished to limit the providing of ROMs, could mandate that serial numbers from commercially sold video games would need to be provided before a ROM based on the game was downloaded from its site.  This would ensure that only those who truly own an original copy of a video game were using a ROM for archival purposes.
Fourthly, the IDSA could wish to expand the providing of ROMs to those who do not own the original video game on which the ROM is based.  A fee could be charged, thus generating revenue.  Currently, there are many video games over a broad array of consoles that have only been released in Japan or Europe.  Illegal ROMs have been created that have translated these games.  The combination of classic games and games never released in America being provided in ROM form could be a bonanza for the IDSA and console manufacturers.  In addition, information forms filled out by down loaders could be required to be filled in before a down load would be permitted.  Information from these forms would allow the IDSA to tailor future advertising and concepts for games more specifically for video game fans.  These lists of information could also be sold to other companies, generating more revenue.

Fifthly, the providing of ROMs would increase the company's goodwill.  By re-releasing classic games over the Internet, the IDSA would be increasing its image in the eyes of its consumers.  The websites that provide ROMs could also be used to advertise new commercially available games for current consoles.

Lastly, providing ROMs on an IDSA website would stop the swapping of these files over peer-to-peer networks.  During the Napster case, there was an immense increase in the number of downloads of MP3s while litigation was pending.  If the IDSA decided to pursue a high profile court case in federal court over the downloading of ROMs, the same rush on downloading that occurred during the Napster case could ensue.  After the Napster case was concluded, the Recording Industry Association of America explored options to provide its own Napster-like service for a fee.  This was too late, for the proliferation of MP3s over the Internet meant that future potentially illegal file-swapping peer-to-peer networks could utilize the MP3s created and swapped.

The IDSA must learn from this mistake, and create their own emulators and ROMs prior to initiating a large case that could engender notice from the media, and consequently a run on the download of ROMs.  Only through this course of action could a preliminary injunction be issued effectively.  The main thrust of any litigation will center on the archival copy exception to the Copyright Act.  The main argument by proponents of illegal ROMs is that the layperson cannot create their own archival copy, so it is necessary for website owners to provide them.  If the IDSA makes ROMs available, it is no longer necessary for other website owners to provide ROMs.  This will increase the likelihood that the IDSA will prevail on the merits of invalidating illegal ROMs, which is a factor in granting a preliminary injunction.55  The issuance of a preliminary injunction, which was stayed in the Napster case, will prevent any mass move to download illegal ROMs prior to the commencement of litigation to shut down illegal ROM sites and minimize any economic damages to the IDSA.

There are some reasons why the IDSA would be leery in creating their own emulators and ROMs, but these can be discounted in turn.

The creation of emulators and ROMs could be seen as conceding legal points on the archival copy exception to the Copyright Act, thus making the closing of illegal sites impossible.  The argument would be that not only could the IDSA offer ROMs as archival copies, but so also could hackers.  However, if the IDSA's providing of ROMs, as discussed earlier, could be conditioned on the providing of the serial numbers taken from the original video games, then a stronger argument could be made that the ROMs were actually copies.  The hackers, on the other hand, have no list of serial numbers and could not actually confirm that their ROMs were being used as copies.  In addition, by imposing a fee for downloaded ROMs, the IDSA could effectively defeat any "non-voluntary" public domain legal argument most readily, as the video games are once again commercially available.

Another argument would be that classic games could not be reissued on newer consoles profitably, because one could just download them from an IDSA or console manufacturer website that offered them.  However, old games that were released in the early 1990's are just too technologically backward to be able to make a large amount of money, even if included on the same video game CD with other "classic" games.  The IDSA could expect greater returns through ROMs than the reissuance of technologically, albeit "classic," games on newer consoles.

Some may argue that the foray into ROMs by the IDSA would encourage consumers to wait for ROMs rather than purchasing new games on new consoles.  This argument ignores the example of movies.  Movies are shown in theaters until they no longer make money, and only then are released on DVD or videocassette.  Likewise, emulators and ROMs would only be released after the consoles and games on which they are based became technologically obsolete and no longer made money.  Therefore, the ROMs would be making money when normally they would not, due to being technologically obsolete and no longer commercially available.

 The IDSA and console manufacturers must realize the desperate nature of their situation.  Emulators and ROMs are only the symptom of a larger disease to take into account when one examines the video game industry and intellectual property concerns.  The Internet and computers have large and looming implications for the IDSA.

 Console manufacturers have always had to compete with personal computer manufacturers, which also allow video games to be played on them.  ROMs are the beginning of the convergence between console video games and the personal computer.  The Playstation 2 allows one to play with others over a modem, similar to games played on the personal computer over the Internet.  Microsoft has entered the video game race with its entry, the Xbox.  The new consoles allow DVDs and CDs to be played on them, which personal computers have been able to do for some time now.  This convergence is similar to other devices, as many wonder if and when the television will function as a computer in the future or the computer will start to display television programming.  By creating its own ROMs, console manufacturers and the IDSA would be creating links to the Internet and computers that would pave the way more easily for future convergence that will eventually occur.  By resisting the ROM technology, the IDSA and console manufacturers are just delaying the inevitable.

 As discussed earlier, the main purpose of the Copyright Act is to foster new ideas by protecting current ideas, not to reward hard work.  Nintendo and the IDSA have asserted that the main reasons why they pursue the closing of ROM sites is to protect their intellectual property in addition to the money and hard work invested in creating and advertising games.  Also, they assert that providing ROMS based on copyrighted games is just plain illegal.  These reasons do not address the cultivation of new ideas, but the propping of an outdated system for copyright holders.

The video game industry is fueled by new ideas and technology.  A video game console is often successful because it is the first to come out with better graphics and game play than older consoles.  By closing off avenues into ROMs, the video game industry is depriving itself of the lifeblood of the industry, new technology and ideas.

 The time for the ISDA and console manufacturers to become involved in creating and providing ROMs is now.  The current method of enforcement of the Copyright Act by "cease and desist" letters issued by the IDSA and Nintendo and the threat of prosecution has not slowed the spread of ROMs based on copyrighted games throughout the Internet.  In addition, factors such as legal emulators and uncertainty among website owners about the legality of ROMs based on copyrighted games ensures that ROMs will continue to thrive in the foreseeable future.

 The IDSA and Nintendo must take new action, and it must be taken quickly.  Soon, peer-to-peer networks will make enforcement of the Copyright Act too difficult, as the thousands that download ROM files will be able to replace website owners in the primary transfer of ROMs.  In the near future, convergence of television, console video games, computers, and the internet will make absolutely necessary what is already required now.  Those software and console manufacturers who are willing to experiment and nourish ROM technology will be far ahead of those in terms of technology than those who wish to enforce archaic copyright laws.

 Therefore, the sooner console and software manufactures create their own emulators and ROMs, the less economic damage will be inflicted upon them. In addition, they will accrue greater technological gain.

2 For a "Frequently Asked Questions" page that fully defines emulators and ROMs and also discusses and explains technical issues involving them, see http://www.zophar.net/faq/nitrofaq/

3 http://www.musiccity.com/

4 http://www.blubster.com/

5 http://www.winmx.com/

6 For a list of current peer-to-peer networks, see http://www.afternapster.com/

7 For a technical discussion of reverse engineering, see Sony v. Connectix, 203 F.3d 596, 600-01 (9th Cir., 2000).

8 Howard Wen, Why emulators make video-game makers quake, Salon, June 4, 1999, http://www.salon.com/tech/feature/1999/06/04/emulators/print.html

9 http://www.nintendo.com/systems/nes/nes_overview.jsp

10 Emulation Lair, http://vimm.net/

11 http://www.nintendo.com/systems/snes/snes_overview.jsp

12 Emulation Lair, http://vimm.net/

13 Are ROMs and Emulators Legal?, http://www.angelfire.com/ny/LeJosiah/Legal.html

14 See Leander Kahney, Nintendo Emulator Code Unleashed, Wired News, Feb. 11, 1999, http://www.wired.com/news/technology/0,1282,17884,00.html, and Greg Lindsay, Game Emulators Target Nintendo64, On, March 18, 1999, http://www.onmagazine.com/on-mag/reviews/article/0,9985,21665,00.html

15 Search conducted on April 1, 2002, at http://www.google.com/search?hl=en&q=%22emulator%22+%22ROM%22+%22nintendo%22&btnG=Google+Search

16 http://www.nintendo.com/corp/faqs/legal.html

17 See Sony v. Connectix, 203 F.3d 596 (9th Cir., 2000), Sony v. Bleem, 214 F.3d 1022 (9th Cir., 2000).

18 See Sega Enterprises v. MAPHIA, 857 F.Supp. 679 (N.D. Cal., 1994).

19 http://www.idsa.com/

20 This example is from the IDSA's Anti-Piracy Frequently Asked Questions web page, http://www.idsa.com/piracy.html
21 http://www.nintendo.com/systems/gcn/gcn_overview.jsp

22 http://www.playstation2.com/

23 http://www.xbox.com/

24 Anti-Piracy Frequently Asked Questions, http://www.idsa.com/piracy.html

25 Nintendo: Company FAQs, http://www.nintendo.com/corp/faqs/legal.html

26 Id.

27 Id.

28 See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

29 Sega Enterprises v. MAPHIA, 857 F.Supp. 679 (N.D. Cal., 1994).

30 Id. at 690.

31 Id. at 683.

32 Id.

33 Id. at 688.

34 Id. at 687.

35 Id. at 687-88.

36 Id.

37 Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000).

38 Sony v. Bleem, 214 F.3d 1022 (2000).

39 These cases and the "fair use" exception are discussed more fully in a paper from the University of Iowa College of Law Spring 2002 Cyberlaw Seminar class: Jongwon Yi, Gameover Sony: Emulators, http://www.uiowa.edu/~cyberlaw/cls01/yi3.html

40 For an example of a "cease and desist" letter, see The Nintendo and IDSA Legal Action Page - Nasty Nintendo email, http://www.emuunlim.com/doteaters/nintendo.htm

41 See Sony v. Connectix, 203 F.3d 596 (9th Cir., 2000), Sony v. Bleem, 214 F.3d 1022 (9th Cir., 2000).

42 ClassicGaming Newbie Guide, http://www.classicgaming.com/cgng/legal.shtml

43 Id.

44 See Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000), Sony v. Bleem, 214 F.3d 1022 (9th Cir., 2000).

45 17 U.S.C. 117 (1978).

46 IDSA Anti-Piracy FAQ, http://www.idsa.com/piracy.html

47 Are ROMs and Emulators Legal?, http://www.angelfire.com/ny/LeJosiah/Legal.html

48 Id.

49 Nintendo Company FAQs, http://www.nintendo.com/corp/faqs/legal.html

50 IDSA Ant-Piracy FAQ, http://www.idsa.com/piracy.html

51 http://galileo.spaceports.com/~argus/games.htm

52 http://www.mergetel.com/~blitz/C64/disclaim.html

53 Are ROMs and Emulators Legal?, http://www.angelfire.com/ny/LeJosiah/Legal.html

54 ClassicGaming Newbie Guide, http://www.classicgaming.com/cgng/legal.shtml

55 Sega Enterprises v. MAPHIA, 857 F.Supp. 679, 686  (N.D. Cal., 1994).