VIDEOGAME STREAMING AND EMULATORS - A SLIPPI SLOPE FOR FAIR USE?

• Author: Majewski, Damian

1. INTRODUCTION 423 II. A BRIEF HISTORY OF SLIPPI AND DOLPHIN EMULATOR 424 III. THE COPYRIGHT ACT OF 1976 & SECTION 107: FAIR USE 425 A. Legal Background of Videogames and Fair Use 426 IV. SLIPPI & DOLPHIN FAIR USE ANALYSIS 428 A. Purpose and Character 428 B. Nature of the Copyrighted Work 431 C. Amount and Substantiality Used 433 D. Effect on Market Value 434 E. Conclusion 436 V. NINTENDO'S COPYRIGHT ENFORCEMENT AGAINST VIDEOGAME CONTENT ON THE INTERNET 437 VI. VIDEOGAME CLASSIFICATION UNDER THE COPYRIGHT ACT OF 1976 438 A. Public Performance: What is a Performance? 440 B. Public Performance: When is a Performance "Public?" 443 VII. Is STREAMING VIDEOGAMES A PUBLIC PERFORMANCE UNDER THE COPYRIGHT ACT? 444 VIII. FAIR USE ANALYSIS: VIDEOGAME TOURNAMENTS FALL UNDER THE COMMENTARY/NEWS REPORTING EXCEPTIONS 446 A. Purpose and Character 447 B. Nature of the Copyrighted Work 448 C. Amount and Substantiality 448 D. Effect on Market Value 449 E. Conclusion 450 I. INTRODUCTION

   On November 21, 2001, Nintendo released Super Smash Bros. Melee (SSBM), a fighting game for the GameCube console. (1) Every year, The Big House tournament series in Michigan hosts an in-person SSBM tournament with prize pools of up to $19,000. (2)

   Due to the ongoing COVID-19 pandemic, The Big House wanted to shift to hosting an online tournament instead. They decided to use an emulator, Dolphin, and game modification, known as Project Slippi (Slippi), which would enable features to allow for online play. However, the tournament was canceled after The Big House received a cease-and-desist order from Nintendo informing them that they did, "not have permission to host or broadcast the event..." (3) and that the tournament, "requires use of illegally copied [emphasis added] versions of the game in conjunction with a mod called 'Slippi' during their online event...

   This Note will argue that under the fair use doctrine of the Copyright Act of 1976, Nintendo could not restrict The Big House from using Dolphin and Slippi, but could restrict them from streaming their tournament on websites. While videogames, such as SSBM are currently classified as an audiovisual work, this Note concludes with a fair use analysis of streaming copyrighted content on the internet if videogames were to be classified as software instead.

   Part II introduces the history of Nintendo's disputes with SSBM. This section also provides background information on Dolphin and Slippi. Part III explains the Copyright Act of 1976 and section 107, the fair use doctrine. This section highlights case law on reverse engineering and the fair use doctrine as applied to videogames, as well as developments in fair use from the recent Supreme Court decision, Google LLC v. Oracle Am., Inc. Part IV applies the fair use doctrine to Slippi and Dolphin. The section concludes the fair use factors weigh in favor of Slippi and Dolphin, and they are protected under the Copyright Act as transformative works.

   Part V introduces the history of Nintendo's enforcement of its copyright targeting recordings and streams of its games over the internet. Part VI provides an overview of the history of videogames under the Copyright Act and how they reached their current status as audiovisual works. This section also discusses the public performance right of The Copyright Act section 106, defining what the act means by "performance" and "public." Part VII discusses whether the streaming of videogames on the internet violates a copyright owner's exclusive rights to public performances under The Copyright Act section 106. The section concludes that Nintendo, as the copyright holder of SSBM, can restrict the streaming of its games over the internet.

   Finally, part VIII applies a section 107 fair use analysis to the streaming of videogames in a tournament section. This section concludes that videogames streamed in a tournament setting fall within the intended use of section 107 for comment and/or news reporting.

2. A BRIEF HISTORY OF SLIPPI AND DOLPHIN EMULATOR

   Videogame emulators are programs that allow a computer to simulate the playing of a game without needing ownership of the physical media such as a cartridge or disc with the game files. (4) After becoming an open-source project in 2008, a larger audience was able to contribute to Dolphin through reverse engineering (5) the GameCube and Wii consoles. (6) Dolphin by itself is only an emulator Playing games with Dolphin requires access to a read-only memory (ROM) (7) file of the respective game. Under copyright law, it is illegal to host or distribute these files online. However, it is not illegal to make a digital copy from a physical cartridge or disc already owned. (8) Slippi is an open-source project attempting to create a replay file system for SSBM which can be easily created, stored, and shared. (9) Slippi provides a variety of enhancements and new features to SSBM that were not originally possible due to hardware and technological limitations in 2001. (10)

3. THE COPYRIGHT ACT OF 1976 & SECTION 107: FAIR USE

   To further the goals of copyright, Congress enacted the Copyright Act of 1976 which grants exclusive rights to copyright owners over their works. (11) Congress recognized the importance of extending copyright protections to new technologies in 1980 when it included enhanced protections within section 101 of the Copyright Act. (12) The Copyright Act gives an owner the exclusive rights to control how, when, and where their works are (13)

   Section 107 of the Copyright Act is known as fair use. Fair use is an affirmative defense where the alleged infringer admits using the copyrighted work. However, if the use was pursuant to a purpose such as, "criticism, comment, news reporting, teaching... scholarship, or research," (14) then it is exempt from infringement. (15) Along with these purposes, a fair use analysis looks at four factors. (16)

   1. Legal Background of Videogames and Fair Use

   Twenty years after the first videogame was invented, one of the earliest and most prominent cases applying reverse engineering to software was Sega v. Accolade. Sega manufactured the Genesis console and Accolade was an independent manufacturer who made game cartridges which were compatible with the Genesis. (17) Although Accolade was not licensed to develop and sell Genesis-compatible games, they were able to reverse engineer Sega's videogames and use information contained within them to develop their own compatible games. (18) Applying a fair use analysis, the Ninth Circuit held three of four fair use factors weighed in favor of Accolade and that they provided a public benefit that the Copyright Act intended to promote. (19)

   That same year, the Ninth Circuit heard a similar case involving the fair use of videogame software in Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc. Galoob Toys developed a product called the Game Genie which allowed players to alter features of Nintendo games by blocking data values without modifying any data stored on the game cartridge. (20) The Ninth Circuit held in favor of Galoob Toys as it was protected by fair use due to the nature of Nintendo's games as published works. (21)

   Less than a decade later, the Ninth Circuit heard Sony v. Connectix, the most important case involving game emulation. Sony was the developer and manufacturer of the Sony PlayStation while Connectix made and sold a software called Virtual Game Station, a PlayStation emulator for computers created through reverse engineering Sony's copyrighted BIOS. (22)

   In 1999, Sony filed a complaint against Connectix alleging copyright infringement since while Connectix argued that their use of the BIOS was protected under fair use. (23) Applying a fair use analysis and citing Sega v. Accolade, the Ninth Circuit held three of the four factors were in favor of Connectix and when weighed together, the use of Sony's BIOS is protected under fair use as a matter of law. (24)

   While there have not been many cases on the specific topic of fair use and videogame software since 1999, in 2021 the Supreme Court ruled on Google v. Oracle which involved the fair use of copying declaring code. (25) Google, without permission, used a portion of Oracle's application programming interface (API) which allowed for software to work together with hardware to achieve specific goals. (26) Applying a fair use analysis, the Supreme Court held that four factors ultimately weighed in favor of Google. (27) Importantly, under the third factor, the Court stated the code used by Google was not the 'heart' of the original work. (28)

4. SLIPPI & DOLPHIN FAIR USE ANALYSIS

   Section 107 claims typically involve a balancing test between the defendant's justification for the use and the impact of that use on the plaintiff. (29) Although all four factors are to be considered together, the Supreme Court has stated, "The fourth factor is the 'most important, and indeed, central fair use factor.'" (30) Fair use requires a highly fact specific, case by case analysis, weighing all four factors together.

   1. Purpose and Character

      The first factor courts look at is, "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." (31) This factor is commonly referred to as whether the work is transformative. A work is transformative if it, "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message... ." (32)

      Dolphin and Slippi are clearly transformative and add something new to the original games. Dolphin itself is more than just a basic emulator, it is an enhancement to the games previously only available on their original hardware. First, many games on consoles run at thirty frames per second (FPS). (33) Dolphin is able to run games at sixty FPS, resulting in an enhanced image since more images are displayed per second. On top of this, Dolphin is able to enhance the quality of games being...