The title overstates it a bit, but not by much. This is an angle on copyright and emulation that I've been mulling for a while but have never formally written down. The upshot is that all emulation of copyrighted videogames might be illegal even if you own the original game and emulator writers (and websites that distribute them) might be contributory infringers. It all has to do with Title 17, Chapter 1, § 117...

I can prove that I own an original copy of Skate or Die! for the Commodore 64. Let's take that as a given. Now, here's the basic question:

Can I play the Commodore 64 version of Skate or Die! on a Commodore 64 emulator without breaking the law?

(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.

Now, if this is how we interpret the law, then practically every use of a videogame system emulator is illegal. Even a user who dumps the contents of a videogame cartridge for an Atari 2600 game he owns to a ROM file cannot use that ROM file with an emulator unless the original's loss requires resorting to the archival copy. If true, then even my attempt to stay legal by buying games and only then using an emulator to play them is way out of bounds.

For what it's worth, I did once ask Frank Leibly of StarROMs if they had interpreted the law similarly when having to work through license negotiations to redistribute ROMs. In particular, I asked if my interpretation of the archival copy clause were correct. Further doesn't that mean that the only legal way for the owner of an Atari Asteroids stand-up machine to play the game in an emulator is to obtain a license for the ROM for that purpose (which, incidentally, StarROMs does). Frank responded that, yes, my interpretation was correct (in this case, the same that StarROMs was working from) and that, yes, an Asteroids owner would have to obtain a copy of Asteroids specifically for use with an emulator, unless they were using an archival copy after the original failed.

Let's just say it outright: StarROMs, a company that wants to sell ROMs, has an interest in having the law interpreted this way. Regardless, I don't think that they're wrong, and I think that their opinion is one that copyright holders are more likely to take, whether the public likes it or not.

So what's the upshot for emulator writers? Well, I would worry about contributory copyright infringement, the type of legal challenge that all the Peer-to-Peer applications have had to deal with. Not that this should happen to them, or that it would be a good thing, but I think it could, especially if a big copyright holder like Nintendo were to take the stance I've outlined above. And isn't Nintendo hoping to make money from their rereleases of NES games for the GameBoy Advance? Seems obvious that emulators for other systems are competing directly with Nintendo's commercial interests in that case.

And I think that Nintendo does hold the view stated above:

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.

I should also point out that there are potentially more problems than just the ones I've raised. Does an emulator make use of a copyrighted BIOS or kernal? If so, can anyone legally use it without specific permission from the copyright holder to use a copy of the BIOS in that manner? Does the archival copy have to be exact? If so, then Commodore 64 games which use very tricky hacks with the hard drive might be very difficult to archive, and in fact cracked versions of a game may be classified unauthorized derivative works and therefore ineligible to be considered archival copies. Does the archival copy have to be used in the exact same way as the original? If so, then perhaps the only thing you can do with an archival copy, even after the original is destroyed, is to use it with the original hardware, not an emulator. Incidentally, this doesn't even cover the issue of software licensing, which adds an entirely new layer of crap on top of the whole copyright mess. I have a GameCube game whose manual specifically prohibits copying of the game, and specifically says that this does not infringe the right to make an archival copy. How does that work? And what if the game is sold used without the manual?

Which is to say, even when you try to stay legal, you're probably still breaking the law. It's not a situation that makes me very happy, honestly, and I wish that the law were written differently. Perhaps, in the future, the law can be changed to make casual copying by an individual for convenience or emulation without redistribution to third parties completely legal. But until then, I'll stick to my original statement: All use of emulation is illegal.