AH... is it illegal.. is it legal... Is it criminal.. is it civil..... Is it moral, is it immoral....
Lets see... You clicked on the EUAL / TOS before install / or before actual game play... The industry already has been spanked for making yoiu give billing info before you agree to the TOS.. So they dont do that anymore..
To violate the TOS invalidates your ability to play that particular game(according to the TOS anyways).. Criminal Violaton = Nope.. Civil = Ehh... its a stretch but id say no to this also.. The reason I say not really is because civil liabilities have a monetary damage at the end of it. For instance selling a Jedi on Ebay could violate the TOS, and thereby they cancle your account and delete the toon.. However one could make an argument you are selling your time invested into making the Jedi... But I digress....
Is making an EMU illegal... Not yet.. No one has been succesful in arguing this point yet. Federal Fair Use Law states:
"One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
FL-102, Revised July 2006
Now... point out in there where it states the EMU is illegal... Well you cant.. its going to be through court rulings and procidents, which are there for this particular type of case...
Now the other side of the coin: Specifically Title II, not included here.. Just the basic overview of the DMCA.
DMCA- The Digital Millennium Copyright Act (DMCA) is a United States copyright law which criminalizes production and dissemination of technology that can circumvent measures taken to protect copyright, not merely infringement of copyright itself, and heightens the penalties for copyright infringement on the Internet. Passed on May 14, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended title 17 of the US Code to extend the reach of copyright, while limiting the liability of Online Providers from copyright infringement by their users.
Again not specific enough and needs the courts to define (and Blizzard got us on the way for this).
The EMU is not illegal being they are not asking for money in return for using the "servers". They are not asking for money to "devlop" the EMU. All being done for free, and offered for free based on the assumption you have a legally purchased game on your side.
In order for the DMCA to even be applied the entity filing the lawsuit has to have whatever they are suing for be copyrighted. Section 1201(c)(1) also states "rights, remedies ... or defense to copyright infringment, including fair use."
1201 (f) specifically covers reverse engineerings.. It permits reverse engineering if the person doing the reverse engineering has aquired rights legally (in this case they bought the game) and only if they reverse engineer to create interoprability for use with other programs (in the case the Emulator).
Long story short.. No law has been broken... The EMU team is following established FAIR USE LAW as well as the correct portins of the DMCA law...
Now the fun part.. what started out as a civil violation turns criminal under the DMCA if the EMU team more or less profits from their creation..$500,000.00 fine and up to 5 years in prison jsut for the first offense. Very easy to cross those lines and not even know it...