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Update 3: ZodTTD, developer of several well-known emulators, recently met a similar fate as yongzh - both his Market account and his apps were removed. Today, he decided to clarify a few things in a blog post, noting that the removal of the apps was not due to an open source violation but rather came as a result of a trademark infringement letter from Sony to Google concerning PSX4Droid's icon. While yongzh did not publish any Sony emulators himself, it does seem that the big guys are taking an active interest in the emulator situation on the Market.

Update 2: Google has issued a generic response to our inquiry asking what led to the takedown:

Thanks for checking in. We don't provide comment on individual apps or developers. I can confirm, though, that the apps that were removed were in violation of Android Market policies.

Update: There's actually evidence that yongzh repeatedly refused to comply with open-source licensing requirements in his emulators. There's a Reddit thread in which various commenters discuss the merits of that explanation. Thanks to those that pointed it out. This seems like an equally likely possibility.

If you hop over to the Market and search for "emulator," you'll notice the mysterious lack of any apps by the developer "yongzh." After the PSX4droid debacle earlier this year (possibly over trademark infringement,) it seems the war on emulators is heating up once again.

The developer of said emulators, yongzh, has confirmed to Engadget that his developer account has, in fact, been suspended pending an explanation. In the meantime, yongzh has moved his apps to the SlideME app store (they're free for the moment.)

So why the emulator hate, Google? I think I may know why. Let's start with a little history lesson.

Emulators And The Law

As anyone who uses a console video game emulator will be more than happy to tell you, emulators are, strictly speaking, legal. There's good case law on this, particularly because of Sony's two infamous lawsuits against a couple of PSX emulator developers. Sony's entire argument for copyright infringement was roundly rejected most famously in a 2000 decision by the 9th Circuit Court of Appeals in California (the U.S. Supreme Court refused to hear the case on appeal):

Accordingly, we conclude that Connectix's intermediate copying of the Sony BIOS during the course of its reverse engineering of that product was a fair use under 17 U.S.C. § 107, as a matter of law. With respect to its claim of copyright infringement, Sony has not established either a likelihood of success on the merits or that the balance of hardships tips in its favor.

Sony Computer Entertainment, Inc. v. Connectix Corp. (9th Cir. 2000) 203 F.3d 596, 608

Sony's argument was knocked out a second time by the same court later that year. Since then, Sony has moved away from litigating against emulator developers - likely for fear that its lawsuits could be deemed frivolous if it continues to file them. No doubt, though, Sony is still busily crafting arguments against the emulation of its products should an opportune case emerge. And it wasn't all bad for Sony, either: both Connectix and Bleem were essentially bankrupted defending the lawsuits, and their products ceased to exist.

Nintendo has never actually taken an emulator suit to court - but as this FAQ on Nintendo's corporate page makes clear, they're not big fans.

There's also a "fair use" exemption for outdated video game consoles in the Copyright Act's regulatory rules, as seen below:

Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 71 FR 68472-01

This basically includes all old cartridge console systems and any other console whose media is not readable by any gaming system that's readily available to buy (so not anything from the Xbox, PlayStation, or GameCube lineages.)

All in all, the basic rule is this: if you're going to emulate a modern console that's reasonably available to buy out in the marketplace, you can do it legally - so long as you aren't copying the proprietary BIOS (beyond what is absolutely necessary to ensure function - which is considered unprotected code) line for line.

This is to say nothing of game ROMs. Any game ROM that has a valid copyright interest (99% do), and that you download from the internet, is 100% illegal unless express permission is provided by the copyright holder. Nintendo's explanation on this is probably the best (and despite their bias, is completely correct):

There is a good deal of misinformation on the Internet regarding the backup/archival copy exception. It is not a "second copy" rule and is often mistakenly cited for the proposition that if you have one lawful copy of a copyrighted work, you are entitled to have a second copy of the copyrighted work even if that second copy is an infringing copy. The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet...

[T]he current availability of a game in stores is irrelevant as to its copyright status. Copyrights do not enter the public domain just because they are no longer commercially exploited or widely available. Therefore, the copyrights of games are valid even if the games are not found on store shelves, and using, copying and/or distributing those games is a copyright infringement.

There's also quite a lot of people out there who would argue "abandonware" is an exception to this rule, and that's simply false. No video game (or even software) in existence which has not had its copyrights expressly released by the owner is in the public domain. It's still infringement, no matter how old the game is (copyrights last 75 years, no video game is anywhere near that age).

The Gray Market

Whew, that was a big sidetrack - but I think it was necessary to make the leap into discussing just why Google might be caving to demands of the likes of Sony and Nintendo in regard to emulators on the Market.

There's no legitimate argument to be made that the sale of these emulators is for anything but playing ROMs. In the case of PlayStation, Nintendo 64, and other more modern consoles the fair use reverse engineering exemption in regard to BIOS does not apply. Nor can the ROMs of older systems which are no longer available qualify under that exemption for anything but strictly personal use (read: not distribution).

Now, as you may know, yongzh's emulators did not ship with BIOS files - you had to "provide" your own. This is the main way the distribution of emulators is legally protected - no BIOS, no infringement (it's not a hard and fast rule - as you read above). But what is the likelihood that users are utilizing BIOS files that aren't pirated? Very low - while there are some "HLE" (high-level emulators) out there that simulate the BIOS functions of the console they're emulating, most basically require you to use ripped BIOS files.

Then we get to the games. If you're actually ripping copies of your old (read: fair use-qualified, so not PSX/GameCube/Xbox/etc.) console video games into readable BIN format files, good on you - you're in the (vast) minority. If you're downloading ROMs from the internet, you are committing copyright infringement, plain and simple.

Everyone does this. There's even an app for it. If you think you're using an emulator in a way that is protected, I would love to hear from you - seriously, write me an e-mail.

The Android Market probably makes the best argument against the legality of emulators since the internet itself. Why? Because it's clear the software is being distributed for the sole purpose of playing illegally obtained games - not for research, security, education, or public archiving. The app descriptions themselves promote illegal behavior.

Sony, Nintendo, and Sega all know this, and they're all probably very carefully making up lists of apps they'd like to see banished from the Market. Google, as the distributor of these apps, stands to get involved in the crossfire of renewed legal action against emulation - as smartphones are proving to be the biggest gaming platform to emerge since the videogame console itself. Guess who wants a piece of that market?

Sony in particular, with its lineup of throwback PSX games now on the Market, has an interest in having these emulators removed. Google wants Sony's (and any other major console game company's) games on the Market - it provides huge brand association. Sony doesn't want to compete with piracy. Solution? Sacrifice - Google is probably having Sony and Nintendo's "dire" financial injuries caused by these emulators shoved down its throat on a regular basis (probably with veiled threats from Sony to move to another platform), and it sounds like that argument is starting to stick.

Nintendo, on the other hand, is probably just plain threatening to sue. With its huge back catalogue of classic Nintendo games on the Wii, along with new titles on the DSi download store, Nintendo has a big interest in controlling the market for downloadable versions of its copyrighted content. Nintendo is also notoriously litigious in protecting its rights.

Are yongzh's emulators the first of many that will be vanishing? Hard to say - only time will tell. All of this is happening behind closed doors, and it's only a matter of time before Google is going to be forced to speak up on this one.

Thanks to Engadget for the news on yongzh.

David Ruddock
David's phone is an HTC One. He is an avid writer, and enjoys playing devil's advocate in editorials, imparting a legal perspective on tech news, and reviewing the latest phones and gadgets. He also doesn't usually write such boring sentences.

  • http://www.trongnguyen.info Trong Nguyen

    From reddit: The explanation is almost certainly the authors of the open source emulators he ripped off complaining. For example Snesoid is based on snes9x but without attribution or source code release.

    http://www.reddit.com/r/Android/comments/hmwj7/android_markets_most_popular_emulators_disappear/

    • David Ruddock

      Interesting - considering his entire account was suspended. Refusal to make open source would be a totally reasonable alternative explanation for the suspension. Thanks for the heads up.

  • Chris

    No, they were most likely removed due to copyright violation. In the sense that he took open source code that required he also release his source and he didn't.

    The authors of the emulators he took the code from probably just filed a takedown notice.

    If he released the source code for his emulators he would have been legal, as it is he was in violation of the licenses of the code he took from other emulators.

    • David Ruddock

      Updated to reflect the open source explanation.

  • http://silverfang77.tumblr.com Silver Fang

    They can ban emulators from the Market, but unless they do away with sideloading, people will still install them.

  • cruisx

    How come no one ever messess with FPse emulator? Is it Open S?

    • cruisx

      What I meant to say is, why is the FPse emulator not taken down?

      Also I see some apps in store which search the internet for the BIOS, Im guessing that they arent really breaking any rules?

  • SlimDan22

    Ughh, seems like everywhere i read this story, everybody assumes Google is out to get Emulators
    The Dev violated a few licenses, the one i know of for sure is Snes9x, which its license prohibits commercial use, if you get enough complaints spanning numerous Apps i am sure Google will investigate and pull the repeat offenders account, which probably happened to this guy
    Who knows he may have gotten a DMCA complaint from Sega or Nintendo (Copyright Violations perhaps?) and that may have been a final nail in the coffin

    http://www.snes9x.com/phpBB2/viewtopic.php?p=30261&sid=1b573b310c17b0085ce9d4d00e90e7b8
    https://github.com/Pretz/SNesoid/commits/master/SNesoid/sneslib/snes9x.h

  • Skillit

    I've to agree with Google on this one, although I don't like to see apps been taken down (unless they are malicious or really bad coded) this for sale emulators are, philosophically, some of the worst apps on the market, allowing it's devs to make money on the work of both the companies that made the games and the developers of the original open-source emulators that they copied.

    In the end Google gains a lot by removing this apps, avoids litigation and guarantee the favor of content providers as it tries to attract more big name companies to make games for android and to develop its music and other media platforms. In the other hand the users loose virtually nothing once this apps will be forever available on the web so the interested can always sideload.

  • Adam

    I don't see any reason to believe there is a crackdown happening on emulators. One author had his apps removed and his account suspended, and as others have pointed out he has been accused of ripping off source code from other developers without releasing his own (for a profit).

    Its just one bad apple.

  • http://androidpolice.com juan

    This is such BS no one gave a crap about the emulator while the phones weren't really fast enough to play games but now that companies have figure they can make money from the same games ....again they are making a big deal about it.
    I mean sure the emulators are a little in the gray but hey its a way people can buy game they've already purchased more than likely on a different device. Most of this games are obsolete I mean who plays snes or ps1 anymore.

  • similar_name

    I just like the Nintendo faq which states it is only legal to have a rom if you ripped it from your own game yourself. Then further down they tell you to have a device to rip a rom is illegal because it's only use is copying and distributing roms.

    • David Ruddock

      A US circuit court ruled that the manufacture and sale of devices for the purposes of ripping console games is, in fact, illegal. However, that was a while back - I'm not sure if those devices fall under the reverse engineering fair use exception now.

      I think Nintendo is just using the law as it stands, and that is what the current viewpoint is.

      But I agree as a matter of logic, it is pretty stupid.

  • http://androidspin.com Stormy

    Here's my issue with all of this. Emulators give us chance to relive our childhood. The likely hood of finding an older console for sell, alone the game you want to play for a few hours a year are slim to none.those that you do find are not sold by the manufacturer anymore anyways. So they aren't making any money either way. When the last time you saw an N64 game on a store shelf! I could understand an issue with xbox360 or ps3 emulators, but not old obsolete consoles that generate no monetary substance to the company. The only way for them to relive profits is if they make their own. Which song actually did with the "play" why don't the rest follow suit and make their own app for the same purpose. On a side note, this doesn't change anything. Anyone that knows anything about their device either already has it or can find it else where. Just another step in the wrong direction.

    • Dan

      i actually bought the original mario kart on the wii store for shits n giggles while a few old mates were over one night. i think that since consoles are internet ready now all the companies have to do is start selling the roms again for a reasonable cost and everyone wins ($1-2?) seriously - who cant afford a dollar to relive an old game for a few hours. that way everyone wins. nintendo needs to ditch the ds, put their own emulators on the market and use in-app billing to charge a fee for games. I would buy a few...

  • sfsdfsdf

    want to point that in different countries there are slightly different rules (most of them are exact but with small differences like making a copy of own software)

    but on the other hand the whole article just shows how stupid law is and instead of providing defense against illegal infringements it's creating illegal pirating - for example: if I own game A - boxed or digital copy I should be able to do whatever I want with it, hell even burn it, same goes with old games, in that case cartridges - if I have it I should be able to download game from internet either legally or illegally - I already paid for it.

    Hell some companies should just release those games in some kind of standard format for god's sake, after 15 years noone plays those games other than hardcore fans who 90% of them likely bought it while 10% even if wanted is unable to do so

    • mathew7

      There is one flaw with your thinking: it's the distribution that's illegal, not the copying. Nintendo's FAQ sais that if you own a game, it is illegal to download a PIRATED copy of it. Since they (Nintendo) do not offer a downloadable copy for existing owers, there is not legal copy obtainable from the net.
      You are allowed to do the copy yourself, but once you publish your copy, you are distributing it. The difference was that 10 years ago, there were relatively small numbers of pirates that sold games/apps. But with P2P networks, any downloader is (automatically in case of torrent) a (potential) distribuitor.

  • Peter

    No sympathy for him. He already made a TON of money by simply taking open source (and some specifically prohibit commercial use) software, getting it to mostly run on Android, and selling it for a ton of money. I looked at the top 'oid emulators, lots of them cost $5 and had over 250,000 downloads.

  • Michael Isaac

    This isn't going to matter at all for most pirates. These apps will be widely available from other market place apps (e.g. AppBrain, et al).

    Forgive me if anyone else said this; I haven't read any other comments.

  • Matt

    I like this.

    I purposefully pirated this guys emulators because I knew they were based on open source code and he was making money off of many other people's work. This was the only time I felt compelled to pirate instead of purchase my apps.

  • Mark

    Thankfully, I never bought any of his apps. Something just seemed odd and wrong to me about buying a software that was basically ripped from someone else's work and porting it over to another system.

  • Chris

    There are *plenty* of other emulators on the store. If it were a sweeping policy against emulators, why only remove yongz's?

    The legal aspect of this article is really interesting, but in this case its a simple license violation by a developer.

  • GGGGG

    The fair-use doctrines and second copy arguments you list here apply to The US and US citizens. As a Norwegian I can reverse-engineer and circumvent whatever protection I want and I'm free to make a copy of whatever software I own for backup purposes. I can also download a digital copy aslong as I own a retail one myself.

  • Jonnan

    I like the legal rundown on this - I think there *should* be a fair-use exception for items no longer obtainable for various reasons e.g. 'abandonware' (And in a world where my Wii can now play my old C64 games, that's a weaker argument than it used to be.), but I certainly concede there isn't one.

  • anthonyryan

    so what happens to the money i paid for i hope i get that back or something..?

    • cosmic

      They removed it from the market, not your phone.

  • http://GrantGarrison.com OMGrant

    While we're at it, I get very pissed off when I see games like 'Mobile Andrio' on the market.

    In games like these, the developer quite literally steals game artwork such as sprites and backgrounds from the title they're trying to mimic. I don't even care if its free on the market or not, Its wrong. (oh and theres a paid version)

    How would you like it if some two bit know-nothing jacked your hard work and started distributing it as their own... want to be a valued game developer?? learn some respect...

  • Stephen

    NESDroid (not -oid, Droid) survived the crack down, perhaps because its source released? No violation of GPL.

  • Erik

    I use emulators to develop and test homebrew for old console systems. I am currently developing homebrew for a system the emulators of which do not use BIOS files from the console, but rather reverse-engineered HLE techniques. As far as I can tell, this is completely legal (but even if it's not, there's nothing morally wrong about it, and it wouldn't change my mind).

  • Caleb

    I honesty dont think google has anything against emulators, but its really a shame that these emulators were taken off. Yongzh,s emus were very very high end and well done. At least its open source so there are other meathods. I actually had to get an apk because its not on market. I surely would have bought them if i could have.

  • mr

    Why don't they just put the emulators back up but make them cost money and whenever someone buys it the money goes to however made the original example snesoid - 3.99 - nintendo

  • blablabla

    Final Fantasy 3 is up for sale on the market for 15.99. I downloaded it and am playing it on snesoid for free. Not paying the price of a new game for something 20 years old, especially when I have to put up with touch controls.

  • http://twitter.com/Gvaz Gvaz

    There is no fucking reason for copyrights to last 130+ years. No valid reason. Copyrights should be 30 years, or 15 years with ability to have a renewal. Then they need to go into the public domain.