The copyright infringement claim against a YouTuber who reviews retro gaming consoles disregards users’ rights by Andrea Monti – Initially published in Italian by Italian Tech- La Repubblica
Despite the passage of time, the copyright on Horace and the Spiders, Jet Set Willy and Atic Atac (for those who played with ZX Sinclair) and all other microcomputer and console games that enlivened the childhood and adolescence of pre-internet generations is still in force and therefore their unauthorised commercial exploitation is punishable by law. So there would seem to be little to add to the analysis of the Once Were Nerd case published on Italian Tech in relation to the accusation of copyright infringement on console games from the 1980s and 1990s, except for the fact that the contested provision, Article 171-ter of the Copyright Law, does not deal with software but with audiovisual content.
However, the legal issues surrounding the reuse of vintage games are not limited to the equation “proprietary video game – user licence = violation of the law”.
What is retrogaming?
The phenomenon of retrogaming is part of the very natural – and therefore economically exploitable – tendency to look at the “things” of our past with a particularly affectionate eye and make them attractive to those who, for reasons of age, were not part of that past. So it is not only vinyl records, photographic films and vintage clothing that generate a market, but also video games, which, as few people know, were one of the pillars on which Italian hacker culture was built.
Some lucky people still have the original games and hardware from back in the day (including cassette recorders) or can buy them from second-hand shops or online, and with a few technological tweaks, they can still make everything work. Others have resorted to emulators that transform their computers into one of their ancestors with 48kb of RAM, while others prefer to buy dedicated devices that can directly include preloaded games, as in the case of those reviewed by Once Were Nerd.
The legality of emulators
Before even discussing the legitimacy of using retro games, it is necessary to ask whether emulators, i.e. software that replicates the operation of a console or microcomputer, allowing the game to interact with the hardware or operating system, are legal.
This question was answered by US case law back in 2000 in a landmark case, Sony Computer Entertainment (SCE) v. Connectix Corp, in which SCE argued that “disassembling” PlayStation software to create an emulator to run on a Mac was illegal.
The American court hearing the case acknowledged SCE’s copyright but, at the same time, declared that the analysis carried out by Connectix fell within the scope of “fair use” — an exception also provided for by Italian law, which allows, albeit in very limited cases, the use of protected works even without a licence.
In other words, this means that not every emulator is, in itself, in violation of the law, but the way in which it was created must be verified on a case-by-case basis. In concrete terms, therefore, emulation software — or a console that runs it — can be completely legal, and reviewing or testing it is not automatically illegal, especially if it is marketed without preloaded games.
The legality of ROMs
The same applies to ROMs — the files of individual video games — because it would be necessary to check whether those who make them available have the rights to do so or whether they can invoke fair use — as is the case, for example, with Archive.org, whose extensive collection of retrogaming has a clearly bibliographic and conservative purpose.
The case would be different, however, for those who, without too many subtleties, sell products that incorporate pirated software, no matter how old. But in this case, the rule on the unlawful duplication of software (Article 171-bis of the Italian Copyright Act) would apply, and not the one contested by Once Were Nerd.
The (violated) rights of legitimate users
When talking about rights, we should also consider those of users who, at the time, purchased licences for the games and can no longer use them because the original hardware no longer exists or because the media are no longer readable.
Their right to use the software has not expired and therefore — provided they can prove that they are in possession of the originals — they cannot (or should not) be penalised for using ROMs, given that the rights holders do not make versions of the video games available for emulators, or if they do, they request additional payments for the service. In other words, if I have paid for the right to use a game, I should not be prevented from continuing to use it.
As is easy to understand, this is a very hot topic for software rights holders because judicial recognition — i.e. through a court ruling — of this protection for users could have devastating economic consequences. This explains why, for some time now, copyright stakeholders have been attempting to block the circulation of used software, the sale of which has been declared legal by a ruling of the European Court of Justice. It also suggests an explanation as to why they have developed “as a service” business models where the user only has the right to use the platform and not to have a copy of the software. The consequence of this strategy is that the user cannot claim, for example, the right guaranteed by Italian law to make a backup to protect themselves from the destruction of the medium, and therefore nothing can be claimed from the rights holders.
The imbalance in the software industry
If all this is true, then it is clear that the elephant in the room in this whole discussion is the commercial policy of software houses, and not just those that produce video games.
The withdrawal of a programme from the market (once again, not only a video game, but also operating systems and applications) is due to marketing choices, not (always) technological necessity. This results in users being forced to give up their legitimately acquired rights and to periodically incur costs and expenses to repurchase products that essentially do what previous versions did.
Given the widespread use and importance that software has acquired in everyday life, such business models are no longer sustainable in economic, financial and organisational terms.
A structural review of these issues is therefore urgently needed, including at European Union level, because the definition of a common policy on software development and marketing is a prerequisite for the much-desired “digital sovereignty” of the EU.