We need to talk about emulation

At the end of April, elderly gamers felt a brief flutter of excitement across their desiccated loins. Over 2500 games from the Internet Archive's Software Library could now not only be played using browser emulation, but could be embedded and played in tweets.

In technical terms, it was a pretty staggering achievement. While the modern console industry continues to cautiously dip a toe in the warm bath of streaming gameplay, enthusiasts had shown that older games could be shared and played - lock, stock and pixels - instantly on social media. No installation, no download required. It was too good to be true. "That won't last," I told myself and, for once, I was right. The very next day after the story broke, Twitter dropped the axe on it.

What surprised me, however, was the reason. Twitter shut the tweetable MS-DOS classics down because embedding "end-to-end interactive experiences" into a tweet is against their terms of service. The potential for hacker mischief is clearly unacceptable.

Yet nobody said a thing about the fact that many of those games shouldn't have been shared in the first place. I was honestly amazed that so many sites - including ourselves - excitedly covered the news, as they had with the Internet Archive's previous Console Living Room and Internet Arcade projects, but nobody raised the question of whether it was even legal.

The Internet Arcade launched in late 2014, offering browser access to over 900 arcade games. Street Fighter 2, Out Run, Gauntlet, R-Type - all the classics were there, as were licensed games based on Tron, Indiana Jones and Superman. Again, it was breathlessly covered in the media, not only by gaming sites but by tech and even business websites such as The Verge and Forbes.

Even then, nobody mentioned the fact that these were clearly copyrighted works.

To see how absurd the situation is, you need only look at the other material hosted on the Internet Archive. You won't be finding any Hollywood movies from the 1980s and 1990s in the film section of the site, only public domain curiosities. Die Hard, Jurassic Park and Pulp Fiction are not available to stream or download, because that would clearly be piracy and would make Internet Archive no better than a disreputable torrent site. Yet copyrighted games from the same period are, it seems, fair game. Does that make sense?

I emailed Jason Scott, the curator of Internet Archive's software collection, to find out. He was happy to discuss the importance of archiving games history, so much of which is lost to compatibility issues and obsolete technology, and the technical challenges of improving the emulation experience. Yet when I said I actually wanted to talk about copyright, he replied "I'm not a lawyer, so I really can't discuss and speculate on legalities" and that was the last I heard from him. A follow-up email to the Internet Archive office simply returned a boiler plate explanation of how the organisation itself takes no responsibility for what users upload to its collections. Requests to speak to someone there who could comment on legal enquiries went unheeded.

It's this refusal to even acknowledge the issue that troubles me most, because sooner or later it will bite all of us in our 8-bit butts. I'm certainly not putting myself on a moral pedestal - I'm a retro gamer, I have used emulators and I continue to use emulators. It feels different when an individual does it, but I'm very aware that's really just a semantic dodge. As a community, this is something we all need to stop skirting around because, frankly, we're devaluing the very medium we profess to love.

The Internet Archive is, at least, a not-for-profit organisation operating with the best intentions, but its attitude to the commercial value of old games is reflected elsewhere. The crowd-funded Vega device will plug directly into your TV and let you play over 1000 Sinclair Spectrum games. Without those games, the device is literally worthless, yet the people who made those games were not offered any payment. Instead, they were asked to give permission for their games to be bundled with the Vega, in return for which Retro Computers, the company selling the device, would make a donation to Great Ormond Street.

I've spoken with former Spectrum developers - many of whom are still working in games today - who said they refused permission because they felt they were being emotionally blackmailed into giving their games away. It's a classic Catch 22 - the Vega needed games in order to have any purpose, but those games were apparently not valuable enough to actually spend money on. Thankfully Retro Computers has since seen sense, and will now apparently offer some form of royalty payment to developers when the Vega is released commercially.

Part of the problem is the way we ourselves, as older gamers, often view software piracy as a sort of charming throwback to the halcyon days of eagerly swapping C90 tapes with hand-written inlay cards during break time at school. The National Video Game Arcade in Nottingham even has a home taped copy of Andrew Braybrook's Uridium as one of its exhibits. That's how ingrained the idea is in the gaming psyche - it's seen as part of the culture.

It's not a cut and dried situation, though. If you don't actually download the code, because you're playing via a browser, does that still count as copyright infringement? Yet, by playing the game in a browser, you're still getting the same experience regardless. This is one of those areas where games diverge from other entertainment media and the law needs to catch up. There's a crucial semantic distinction between the code that "physically" makes up the game and the content, produced by that code, which the audience actually consumes. They're both aspects of the same thing, but one is protected by law, the other in limbo.

This is why we need clarification, and an open and frank discussion about emulation and rights, because we seem to have reached a point where games from just a few decades ago are assumed to be free for no other reason than their age and the fact that you can't buy them in shops anymore. In the age of entitlement, "out of print" is too often conflated with "public domain".

This has led to the bizarre schism in gaming, where old titles and hardware tumble over some invisible precipice once enough time has passed. It's tempting to believe that the widespread acceptance of emulation does no harm, and in fact helps bridge that schism by keeping older games in circulation.

That would mean ignoring the realities of the games market though. The biggest problem that games face as a commercial medium is that there are no ancillary markets and no reliable revenue streams beyond the initial launch. You might make some money from merchandise on a major brand, or a budget re-release or special edition a year down the line, but ultimately once a game vanishes from the shelves and the front pages of websites, it might as well not exist as far as regular income is concerned.

Again, compare it to film. There, the cinema release is just the start of a film's commercial life. After that it can be sold on DVD or Blu-ray, it can be packaged for TV and sold to the likes of Netflix and Amazon Prime. It can licensed for Pay Per View in hotels and sold to airlines to show in-flight. It has what smartly dressed business people call a "long tail", making money for years to come and helping to fund more movies.

There's really nothing like that for games, apart from budget re-releases or special editions, which is why we have such an imbalanced industry. Games publishers largely exist hand to mouth, launch to launch, with their back catalogues turning over pennies, if at all. It's why there's such an emphasis on pre-orders, on squeezing every penny through the tills in the first few months before the price gets slashed by retailers eager to shift stock and make space for the next big release. It's why franchises get milked every year. It's why publishers have pounced so eagerly on DLC, because they're already looking ten years down the line and trying to work out how to keep their games from falling into emulation limbo.

That's not emulation's fault, but the widespread acceptance that old games have no value and can be freely passed around is a major barrier to solving that problem. When the Internet Arcade was launched, it was reportedly serving 1000 games per minute. That's an amazing figure, if true. It is truly brilliant technology. Yet what if those games were hosted on a site where users could buy a stack of virtual coins and spend them, as they would in a real arcade? What if the owners of those games gave their permission and got a cut of that money? What if there was a Netflix equivalent for retro games, which offered browser access to every arcade and home computer game you ever loved for a low monthly fee? We clearly still want to play these games, but at this point would anyone even pay for it?

It shouldn't be an outrageous suggestion. In any other creative industry it wouldn't be. Yet, as gamers, we recoil when the notion of paying for old games comes up even as we complain that the very same publishers are trying to squeeze more money out of the games that are on sale now. It doesn't take much to connect the dots.

It's not an easy argument to make. There's nothing sexy or cool about arguing in favour of the financial rights of large companies over the immediate gratification of fans. Everybody likes free games, and nobody wants to be the one to put their hand up and ask "Is this right?" The Internet Archive certainly isn't the villain here, and I actually applaud the dedication of its volunteers in finding new ways to keep old games playable and accessible, but the way it treats games so differently to other media is part of a much larger problem. I'm also part of that problem. Chances are, you are too.

Emulation is our dirty shared secret, something we do with a nod and a wink and the understanding that everyone else is doing it, so where's the harm? From our individual perspectives, the harm is indeed tiny and insignificant. But cumulatively, when it becomes normalised, when it becomes something that is covered in the mainstream media as no big deal, when attempts to preserve old games end up killing them off as commercial entities, then we have a problem that directly impacts the games of today. Gaming can't move forwards if we're not willing to talk about our broken relationship with the past.