Back in 2007, a forum known as Something Awful popularized a form of video game walkthrough known as a “Let’s Play,” termed so because of the subforum they were hosted on. Today, you can find a plethora of these types of videos on sites like YouTube and dedicated sites like the Let’s Play Archive.
(If you still don’t understand what might constitute a “Let’s Play” video, watch one of my favorites to provide some context for this discussion)
On the surface, these kinds of videos don’t seem any different than what you might be doing when you’re at a friend’s house watching them play a copy of the game they own. “Let’s Play” videos also don’t appear to differ much more than the format in the cult classic Mystery Science Theater 3000.
But they aren’t exactly similar, or at least, they aren’t treated similarly. The potential problem with “Let’s Play” videos lies in the way most of these videos are made. Although not always explicitly stated, many “Let’s Play” videos implicitly suggest the use of an emulator and ROM (hint: the ability to use and load save states is typical of emulators). For those who don’t know, video game emulators are programs that allow a computer to mimic a video game console, while ROMs are the copied data from a video game cartridge or disc. Essentially, emulators and ROMs are programs that allow you to turn your computers (or even now, smartphones) into a NES, PS2, and even now, a Wii.
The advent of video game emulators and ROMs on the internet has, however, worried some video game publishers. Moreover, many websites hold that ROMs are inherently illegal, even if you actually own the physical game. The basic argument is that emulators and ROMs, by lacking anti-circumvention measures present in video-game consoles and removing the need to actually own the hardware and software, promote piracy. It is difficult to play pirated games on normal video game consoles without the aid of extra software or modification to the hardware, which is currently illegal. Unforunately, while “Let’s Play” videos would certainly hold up as fair use (they are overwhelmingly used noncommercially and are substantially transformative through their commentary), the use of emulators to create them puts “Let’s Play” creators at risk.
A Link to the Past
People who use DVDs for critique, comment, remixing or educational purposes, once faced a similar conundrum. Even if a use of the movie itself constituted fair use, many were breaking the law by cracking through the anti-circumvention measures on the DVDs. That law has since changed, and now many seeking to use movies for the aforementioned purposes enjoy several rights.
So are the people who create “Let’s Play” videos breaking the law by using emulators and ROMs to produce their videos? Currently, the law enables circumvention in the event that a program with protection be obsolete or no longer supported or readily available for repair in the current market. Publishers like Nintendo have explicitly abandoned support for older video games and consoles. Though they argue that you may still play some games through Wii’s Virtual Console, the selection is often very limited, often promoting only the most popular games. Still, a few “Let’s Play” videos use these very popular titles, which doesn’t much help in that regard. Rather, a different argument might be needed.
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A more growing problem in the video game industry is the growing DRM and anti-piracy measures, which seem to be moving towards limiting what you can do with your software (often by limiting how often you can install the software or when you can play). Nintendo and other companies would argue that, even if you owned the video game, having and playing a ROM of that game is illegal. Although having a backup copy of a video game you own is completely legal under fair use, going further by having a ROM is not. Companies like Nintendo want to limit how you can use your product.
As DRM and anti-circumvention measures develop further and video game companies begin to crack down on emulator and ROM users, we may face the stifling of a new artistic medium. Not only are “Let’s Play” videos at risk, but also other video types that necessitate the use of emulators, such as Tool-Assisted Speed Runs. Time will come for either the law to change or kill the medium, but with the power of the internet and the notorious difficulty in fully removing something from it, I doubt we’ll see the latter. Times are already changing now that video games are accepted as art, and so it will only follow that they receive the same protections as art forms like movies and for uses of their DVD counterparts.
Yale Law Tech 