Though people often ask whether or not it would be illegal to spread copies of historical, once commercially produced videogames (e.g. on the internet) for playing them on emulators.
 
 

Writing computer programs takes a lot of work and effort and often artistical creativity, though it is reasonable and very understandable that computer software needs to be covered by copyright laws to protect its developers from being frauded by other people those would otherwise hinder them to get enough money for their work by unjustly spreading copies of that software by their own.

Illegally producing and spreading such copies of computer programs not according to these copyright laws is called "software piracy", but we must seriously ask if it would be really accord to the spirit of these laws to generally forbid the spread of copies of the mentioned historical videogames by arguing with it.
 

First we must stress that there is the fair-use law, which entitles everyone to make non- commercial copies of copyright protected works e.g. when the mentioned work is not longer available because it is out of production, or when it is by some other reasons for the copier undemandable to take the effort needed to get in the possession of a legal original copy of that work.

The very most of the mentioned historical videogames are since long time out of production and out of sale and though it is difficult to get a working original copy of them. And because they are out of production, copying them can't financially damage their copyright owners, because it can't make them actually sell less originals of these programs because they don't sell any of them anymore. This already makes such games to be a very serious candidate for the application of the fair-use law. With historical arcade videogames the situation appears even clearlier tending to the application of the fair-use law, because these arcade machines are very rare, big and heavy, expansive and difficult to get today, and only few game PCBs are still in working condition, though this makes it certainly to be a definitely unexpectable effort for an average videogame player to find and buy such arcade machines/ -PCBs just for the purpose of becoming legally entitled to play these games.
 

But second, and more important for verifying the legal status of the major part of historical videogames is to understand the spirit of the copyright law by philosophically discussing the nature of software piracy itself.

In the past, piracy was arch- originally the term used for sea robbery, i.e. for robbing away other peoples ships and cargo. To see logical similarities with software piracy we can argue, that basically building ships, like programming computer software, is something that takes a lot of work, engineering skills and effort, and though a new ship, like a new computer program, is worth a lot of money. Using a ship for transport business, like selling copies of new computer programs, is something with that one can earn a lot of money. Taking away someone's new ship by sea robbery, like pirating computer programs, both make the owner financially suffer and can drive him bankrupt. Though there have to be laws against them.

Otherwise taking away an old, abandoned ship, with that nobody makes money anymore, won't make any owner financially suffer, though entering abandoned ships is legally permitted by international sea laws and nobody would get in mind to call this an act of piracy. In the opposite entering such a ship would be even the only possibility to preserve it, because the banal forces of entropy would make it finally decay and eventually sink into its doom and get lost forever when just letting it drift around on open sea instead.

At the 1st look it may not be obvious to see the equivalent with copyrighted computer software here, because one could naively think: "Computer software needs no restoration because its immaterial and there are sooo many copies around, and because it's digital, copies will anyway live forever and can be endlessly copied anyway. And when such software is copyrighted, then it must have an owner, and when there is an owner, he will certainly always have his own interest to always preserve at least his own copy to keep it..."
The reality is unfortunately much different. Magnetic data media like disks and tapes can loose their informations already after 10..20 years and a single unreadable bit can be enough to make a program unusable. In most historical arcade game machines and even some home videogame cartridges the data is stored in EPROM chips just as an electrostatic charge pattern, and by the banal forces of entropy these patterns tend to slowly fade away forever, which in bad cases can happen within only 10 years. Some arcade PCBs even store data just in a battery backed-up RAM as a crazy sort of copy protection; as soon the battery gets empty, the program dies like a Tamagotchi and it can only be repaired by the game company (as long as it exists...). Trusting in the copyright owners to preserve the programs is also a very bad idea, because most of the historical computer game companies got already bankrupt and/or were bought by other companies those were bought by other companies those... and because companies are usually just bought for their know- how usable for future projects, but not for the copyrights of their old and technically outdated programs, the sourcecodes and backup copies often just fade away on data media like described above, or even got mindlessly thrown away by the new company owner, treated as worthless trash. I read that even big pinball companies don't have a museum and though they don't keep even a single specimen of all the different pinball machine types they released. And even when companies keep copies in their museums and archives, already a single accidentally fire etc. can easily destroy them forever.

So there are not only abandoned ships in this world, but also a lot of abandoned computer software programs; this so-called "abandonware" must urgently be preserved, because it includes cyberage's artifacts of high historical importance, and especially regarding historical videogames we can find that much of them is artistically absolutely unique and includes stylistical elements those influenced the arts and music of today (e.g. the roots of the popularity of tekkno) in a way of that many people are still not aware about.

But unlike phono records, pictures and movies, with videogames the mankind 1st time created a media for a modern form of art which could not easily be copied between different hardware types by a simple technical translation process to make it runable on all newer hardware generations. (It was e.g. always easy to copy a gramophone record or a 1950th magnetophone tape onto a CD, or an old celluloid film movie onto a VCR, or photos onto a Photo-CD, but games from a C64 could not be made runable on a PC by just simply converting a few signals and re-recording the stuff.) While the original, historical videogame hardware will not function forever, and only a limited number of people can have the occasion to get access to it, the development of emulators became the only chance to preserve this modern kind of art for future generations. And while programming emulators is a technically very difficult and time consuming task and every game hardware type needs a different one, for only few game systems emulators were released by game companies as commercial game products, sold with only a very small fraction of all the historical games those were threatened to get lost. This makes the situation of historical videogames fundamentally different from the one of movies, phono records and all other kinds of copyrighted, but easily reproducible artworks. Especially with arcade videogames the development of emulators is extremely costly, because there were hundreds of different arcade hardware types, each suited to run typically only between 1 and 10 different game programs, and while only a very tiny fraction of all these arcade games (maximum 5% ??) is commercially interesting enough to justify the effort and costs for game companies to develop a commercial emulator for them, and because the bizarre constructions of arcade PCBs (especially unique prototypes...) often tended to get faulty very soon, the rest of these artifacts was seriously threatened to get lost forever.

Though collectors of historical videogames began the great archeological task of sacrificing all their spare time with analyzing the circuitry of these arcade game PCBs with only a minimum of technical informations, to develop computer programs to recreate the functionality of that ancient hardware to keep these games alive for future generations. And only by these emulators it became possible to make these games ever accessible to younger people those otherwise would never have got the occasion to play the original historical arcade game machines, because these machines are very rare due to most of them were scrapped in past, and the PCBs of the remaining ones often got defective since long times ago.

By this reason it is extremely incompetent and dull minded to criminalize the classic game emulator community in general by comparing it with ordinary "warez" internet sites etc. those spread pirated copies of actual, still regularly sold computer programs and though causes serious financial damage to the copyright owners.
 

Conclusion:

The historical videogames and their artwork are part of our cultural heritage, therefore we friends of historical videogames demand not to be criminalized, but instead to get another legal and expectable way to play and show all these games beside of getting into the possession of a historical original copy of each of them.

Important is that an expectable and payable way must be found to keep access for us to the entire variety of historical video- and computer games, and not just to that very little fraction of games that are considered by the game companies to be worth to get re-released on (often quite expansive) commercial "classic games" packages.

Not to understand us wrong; we have nothing against commercial re-releases and we don't want to hinder them from being produced. In the opposite these game packages are even an important medium to get novices interested in the topic of historical videogames to keep this tradition alive. Especially when such packages are faithfully produced and include unique background informations (like the famous programmer interview videos in "Williams Arcade Classics") they become a valuable contribution to the classic gaming community. But for our culture historical work it is crucial to keep access to an anthology of all historical videogames to make it possible to show the development of stylistical and artistical elements in these games across time, game companies and programmers and much more. (E.g. Tim Skelly's nearly forgotten masterwork "Sundance" from 1978, one of the very first 3D vector games at all, reveals its art historical importance only when comparing its stylistical elements with Dave Theurer's famous and very well known game "Tempest" from 1981 (first colour vector game), which cited and perfected many of the style elements those appeared in Sundance the first time.)

When talking about costs of re-releases and possible financial damage caused by spreading image files of historical games for free, it is important to remind that only very few computer programs are commercially profitable for longer than 5 years and that a commercial re-release of a historical game would usually require to develop an emulator for it, which is an effort that causes the major fraction of the costs of  a possible re-release. The rest of a game package price is mostly eaten up by shipping and retail store trade, making the games much more expansive then needed to fairly pay the programmers. The historical games itself were never intended to make more money than within the mentioned 5 years and though the development costs for the games itself are already written off.

Though developing emulators is quite similar to recovering ship wracks; it requires a lot of effort and when the expected worth of a wrack is lower than the recovery costs, it will not be profitable for commercial organizations to do so. But when the wrack is of archeological interest, it is important that non- commercial organizations get the soon permission to recover it, because the wrack would otherwise be endangered to decay and get lost forever. With historical videogames it is the same; when nobody can play them anymore because the remaining hardware gets too rare or defective (especially with irreplaceable arcade prototypes etc.), people tend to soon loose any incentive and interest to make backups of such abandonware, though only the non- commercial development of emulators can cause the people to keep and spread backups of these games to preserve these artifacts for future generations.

 Legalize it!

It needs again to be stressed that the game industry doesn't loose money by permitting to spread their abandonware games for free. But in the case that it is really impossible for them to give away any copyrighted works for free (like in the Gutenberg project), then we demand that the copyright owners must at least make it possible to buy single-user licenses of these games from them for very low fees, e.g. similar to commercial MusicOnDemand services. The costs should be kept as low as possible, i.e. unlike usual commercial classic game packages we just want the plain image files (and possibly a documentation and background information file) without any expansive commercial emulator software etc. included which would need to be extra produced for it.

For us friends of historical videogames is of high importance that a game copy purchased in such a way will include image files of all the released variants of that same game bundled together (different ROM revisions, alterated bootleg versions, prototypes etc., like known from the MAME arcade emulator's ZIP files) and that it also must be legally possible to get copies of games where the copyright owner is unknown. Also bulk buys of single-user licenses of historical games for an even more reduced, very fair price must be made available (e.g. on CD-ROMs) to make it possible to legally buy anthologies of all historical games to certain topics, and to legally enable people with no internet access to use non- commercial emulators like MAME in future. (In this context it must be kept in mind that a large fraction of all these historical games play quite boring and due to this they get only interesting when shown in their historical context by including them into anthologies.)

It would be fair when the major amount of the profits made with such single-user license would be used by the game industry for paying royalties to the original game programmers those once created the historical games and though eventually made it possible for our generation to enjoy them.

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I                  CYBERYOGI Christian Oliver(=CO=) Windler                  I
I         (teachmaster of LOGOLOGIE - the first cyberage-religion!)          I
I                                      !                                     I
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