From this month’s Maximum PC

The question, from Andy Young:

Removing the CD-check [in a program] by downloading and installing a “fixed executable” was reported as illegal since it modified the program. However, what about using optical drive emulators to solve the same problem?
…is it legal for me to install a program that takes a portion of the hard drive and makes it appear as though it’s a CD-ROM drive? This would not be tampering with the game program itself.

The answer, from Maximum PC’s Logan Decker:

If you were to go by the letter of the Digital Millennium Copyright Act, the answer would probably be a resounding no. That’s because the DMCA says: “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology…that is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner…” Presumably, the downloading and use of a CD-ROM emulator for the purposes of circumventing copyright protections is verboten.

I contend that Mr. Decker’s answer is incorrect on two counts:

  • The quoted passage contains no injunction against the use of such technology – only against its distribution. Look again at the list starting with “manufacture” and ending with “otherwise traffic” to see what I mean. In other words, the guy who sells you the CD-ROM emulator might be liable but you the consumer would not be.
  • The word “primarily” in “primarily designed or produced…” is also significant. Are CD-ROM emulators made or used primarily to circumvent copyright protection? No; they’re primarily intended to improve performance. This is the DMCA’s version of the “substantial non-infringing use” argument that won the famous Betamax case for consumers and, contrary to popular belief, it still exists even in the post-DMCA era.