There is nothing like reliving your childhood with your favorite retro games, but are emulators and ROMs legal? The internet will give you a lot of answers, but we spoke with a lawyer to get a more definitive answer.
Emulators are legal to download and use, however, sharing protected ROMs online is illegal. There is no legal precedent for ripping and downloading ROMs for games you own, although an argument can be made for fair use.
To find out, we asked Derek E. Bambauer, who teaches Internet and intellectual property law at the College of Law at the University of Arizona. Unfortunately, we found that no definitive answer really exists, as these arguments have yet to be tested in court. But we can at least shatter some of the myths that float out there. Here’s what you need to know about the legality of emulators and ROMs in the United States.
Emulators are almost certainly legal
Let’s start with the simple things. Despite what you may have heard, there aren’t many questions about the legality of the emulators themselves. An emulator is simply software intended to emulate a gaming system, but most do not contain any proprietary code. (There are of course exceptions, such as BIOS files required by some emulators to play games.)
But emulators aren’t useful without game files – not ROMs – and ROMs are almost always an unauthorized copy of a copyrighted video game. In the United States, copyright protects works for 75 years, which means that no major console title will be in the public domain for decades.
But even ROMs exist in a gray area, according to Bambauer.
The possible exception for ROMs: fair use
First things first: Downloading a copy of a game you don’t own isn’t legal. It’s no different than downloading a movie or TV show that you don’t own. “Suppose I have an old Super Nintendo and I like Super Mario World, then I download a ROM and play it,” Bambauer said. “It’s a copyright infringement.”
It’s pretty clear, isn’t it? And it more or less aligns with the language regarding ROMs on Nintendo website, where the company claims that downloading any ROM, whether you own the game or not, is illegal.
But is there a legal defense? Perhaps, if you already own a Super Mario World cartridge. Then, according to Bambauer, you could be covered by fair use.
“Fair dealing is a fuzzy standard, not a rule,” Bambauer explained. He says he could imagine a few possible defensible scenarios. “If I have a copy of Super Mario World, I can play it whenever I want,” he notes, “but what I would really love to do is play it on my phone or my laptop.” In this case, downloading a ROM might be legally defensible.
“You are not giving the game to anyone else, you are just playing a game that you already have on your phone,” Bambauer said. “The argument would be that there is no damage to the market here; that it does not replace a purchase. “
Now it’s not black and white; just a potential legal argument. And Bambauer quickly admits it’s not perfect.
“This is by no means a slam dunk argument,” Bambauer said, “but it is by no means a silly argument.” After all, Nintendo could claim that by emulating the game on your phone, instead of buying their official port of a game, they are losing money.
But if there is no specific precedent for the game, there is in other markets. “In the music industry, everyone agrees that moving space is legal,” Bambauer notes. You can see where it gets complicated.
What if you rip your own ROMs?
A common argument online is that ripping a ROM from a cartridge you own is perfectly legal, but downloading ROMs from the web is a crime. Devices like the $ 60 Retrode let anyone rip a Super Nintendo or Sega Genesis game via USB and declare its legality on downloads as a key selling point. After all, ripping a CD you own with iTunes or some other software is generally considered legal, at least in the United States.
Is ripping a ROM you own different from downloading a ROM? Probably not, says Bambauer: “Either way, you are creating an additional copy.”
Now, Bambauer could imagine building an argument about how one is different from the other, and he admits that the optics are different. But he doesn’t think the two situations are so legally distinct.
“I think if the argument is, if I was a qualified engineer, I could extract it and have a copy of it,” Bambauer said. “If we assume, for a moment, that if I did this it would be fair use, then it shouldn’t be any different.”
ROM sharing is unambiguously illegal
This fair dealing argument is potentially very broad in scope, but there are limits. “The problem is that it’s not just me who has a copy anymore, but I give a copy to other people,” Bambauer said.
Think about the entertainment industry. The RIAA and MPAA have found more luck for sites and people who share music than for downloaders. For ROMs, it works much the same way, which is why sites that share games are shut down so frequently.
“Once you distribute a ROM, most of the people who download it probably don’t have legal copies of the game,” Bambauer said. “Then there is a detriment to the market, because Nintendo should be able to sell to these people.”
For this reason, it may be a good idea, even if you own a game, to avoid downloading ROMs from peer-to-peer networks, where you share a copy of the game as you download it.
What if a game is not currently on the market?
Many people claim online that if a game is not currently available on the market, downloading a ROM is legal. After all: there can be no harm in the market if a game is not currently on sale in digital form.
This argument might not be airtight, Bambauer said.
“On the one hand, there is no amount of money that will allow me to get a legal copy of this game,” Bambauer said. “The other side of the argument is what Disney is doing.” Disney’s strategy is to put classic movies “in the trunk” for long periods of time. Instead of constantly leaving films on the market, they re-release them periodically, which increases demand and increases sales when that release arrives.
Video game companies could argue that they are doing the same with currently unreleased games and that ROMs are reducing potential market value. “It’s a close case,” Bambauer says, “and hasn’t been tested much.” But they could make that argument.
At the same time, he notes, a game that isn’t currently on the market could be a useful part of a defense, especially if you’re downloading a game you already own.
“I couldn’t buy a copy anyway, and I already own a copy,” Bambauer said, again hypothetically. “So it’s a bit like owning a CD and ripping it myself.”
This is all essentially hypothetical
You’re probably starting to see a pattern here. ROMs are such a gray area as there are potential legal defenses on both sides – but no one has really tested those arguments before. Bambauer could not cite any case law specifically relating to video game ROMs, and was mostly content to extrapolate from other areas of Internet copyright.
If one thing is clear, however, it’s this: if you don’t own a legal copy of a game, you have no rights to download it (yes, even if you delete it after 24 hours, or all. other gender nonsense.).