If I had to give an award for the part of MMO Fallout that fills me with equal amounts of pride and disappointment, it would be the In Plain English column. For those who haven’t been following this website long, In Plain English is one of those columns I started as a direct response to the media’s coverage of events, specifically lawsuits, particularly in the sense that it is generally impossible to find someone willing to cover a lawsuit once it has started.
What got me started on this was the complete lack of coverage regarding Turbine’s lawsuit against Atari, and subsequently Wizards of the Coast’s lawsuit against Atari, regarding the Dungeons & Dragons license, a lawsuit that could have affected every single video game based on D&D. While the lawsuit between Turbine and Atari was settled out of court, we were able to surmise some of the terms of the settlement through actions by both companies shortly thereafter, such as Cryptic (who was owned by Atari at the time) suddenly declaring that Neverwinter would not be an MMO (this was later rescinded once Perfect World Entertainment took over).
For the most part, however, covering lawsuits isn’t good press unless some major groundbreaking decision is on the line or unless one or both parties is utterly insane and is permanently filing nonsense in the court records (read: James Romine v 100 Steam Users). From my perspective, I’m dealing with a story where neither side will ever comment publicly, if they know what’s good for them, due to the potential damage that commenting on an ongoing case can cause. So I’ve tried to take a different approach, by discussing the claims, looking at precedent provided, and digging up cases not presented to use for my own analysis. I never want this column to turn into "this person claimed this, the other guy denied it, who knows what is right."
More often than not, these cases end on a disappointing (for the reader) note, being settled out of court under terms that are never released to the public, with both sides gagged from ever revealing the terms themselves. Speculation in this industry is often fruitless since, as I’ve become tired of repeating on social media, most of these cases have no precedent in court.
Which ultimately leads me to this week’s controversial developer action, and of course I am speaking of Atlus attempting to DMCA a Patreon page for a Playstation emulator because the emulator can be used to play Persona 3.
They later put up a statement which didn’t so much offer legal justification as it did make excuses barely related to copyright law while repeating how much they just want everyone to have the best time possible.
"We believe that our fans best experience our titles (like Persona 5) on the actual platforms for which they are developed. We don’t want their first experiences to be framerate drops, or crashes, or other issues that can crop up in emulation that we have not personally overseen."
While a nice sentiment, this has absolutely nothing to do with copyright law, nor would it be covered under a DMCA claim.
"Unfortunately, when our content is illegally circumvented and potentially made available for free, in a format we do not think delivers the experience and quality we intend, it undermines our ability to do so by diverting potential support from new audiences."
This next part is important because Atlus isn’t just misinformed on copyright, they are veritably wrong in their interpretation of the law. First, the creator of an emulator would not be responsible for people pirating the game. Second, and going by this and other statements, Atlus believes that its rights are infringed on because people are playing Persona on a system that they did not intend it to be played on.
It’s story time.
Back in 1999, a company called Connectix released the Virtual Game Station, a commercially available emulator for the Playstation on Mac. Yes, I said commercial, as in the thing was sold on a disc and for money. It was even shown off by Steve Jobs himself at MacWorld. Sony sued, as you would expect, and the miraculous thing about it is that they lost, the court ruled in favor of Connectix that the emulator did not diminish Sony’s brand.
But here is where it specifically connects to Atlus. The court even ruled that copyright law does not grant Sony a monopoly on devices that play Sony branded products.
"Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly."
In the lawsuit, Sony argued that the availability of the emulator would lose them sales on consoles. The court’s response was essentially "tough," declaring that the emulator was a legal market competitor, and that Sony losing sales to the competition did not affect its fair use defense.
Ultimately, Patreon refused to comply with the takedown and the group is still up and operational, likely with more funding than ever thanks to the new round of publicity. All references to Persona have been removed from the Patreon page and website as a precautionary measure.
You can be completely against emulators while also acknowledging that this is out of Atlus’ reach.
MMO Fallout 