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Is downloading retro video game ROMs ever legal?

There’s nothing like reliving your childhood with your favorite retro games, but are emulators and ROMs legal? The internet gives you many answers, but we spoke with a lawyer to get a more definitive answer.

Emulators are legal to download and use, but sharing copyright-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 law and intellectual property at the College of Law at the University of Arizona. Unfortunately, we have found that there is no definitive answer as these arguments have yet to be tested in court. But we can at least debunk some of the myths floating around there. Here̵

7;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 easy stuff. Despite what you may have heard, there isn’t much doubt as to whether emulators themselves are legal. An emulator is just a piece of software that is intended emulate a game system, but most do not contain their own code. (There are exceptions, of course, such as the BIOS files required by certain emulators to play games.)

But emulators can’t be used without game files – or ROMs – and ROMs are almost always an unauthorized copy of a video game that is copyright protected. In the United States, works are protected by copyright for 75 years, meaning that no major console title will be in the public domain for decades.

But even ROMs exist in a bit of a gray area, according to Bambauer.

The possible exception for ROMs: fair use

For starters, downloading a copy of a game that you do not own is illegal. It’s no different from downloading a movie or TV show that you don’t own. “Let’s assume I have an old Super Nintendo, and I like Super Mario World, so I download a ROM and play it,” said Bambauer. “That’s a copyright violation.”

That’s pretty obvious, right? And it kind of matches the language regarding ROMs on the Nintendo website, where the company states that downloading a ROM, whether you own the game or not, is illegal.

But is there a legal defense? Possibly if you already have a Super Mario World cartridge. Then, according to Bambauer, you could fall under fair use.

“Fair use is a vague norm, not a rule,” explains Bambauer. He says he can envision a few possible defensible scenarios. “If I own a copy of Super Mario World, I can play it whenever I want,” he notes, “but I’d love to play it on my phone or laptop.” In this case, downloading a ROM can be legally defensible.

“You don’t give the game to anyone else, you just play a game you already have on your phone,” said Bambauer. The argument would be that there is no market damage here; that it is not a substitute for a purchase. “

Now, this isn’t black and white; just a possible legal argument. And Bambauer is quick to admit it’s not a perfect one.

“This is by no means a slam dunk argument,” said Bambauer, “but it is by no means a foolish one.” After all, Nintendo might say they are losing money emulating the game on your phone, rather than buying their official port of a game.

But while there is no specific precedent for gaming, there are other markets. “In the music industry, everyone accepts that moving space is legal,” notes Bambauer. You can see where this gets complicated.

What if you rip your own ROMs?

A common argument online is that extracting a ROM from a cartridge you own is perfectly legal, but downloading ROMs from the Internet is a crime. With devices like the $ 60 Retrode, anyone can extract a Super Nintendo or Sega Genesis game via USB and list their legality over downloads as a major selling point. After all, ripping a CD you own with iTunes or other software is generally considered legal, at least in the United States.

So is ripping a ROM you own different from downloading a ROM? Probably not, says Bambauer: “In both cases you make an extra copy.”

Now Bambauer can imagine building an argument about how one is different from another, and admits that the optics are different. But he doesn’t think the two situations are so different from a legal point of view.

“I think if the argument is, if I were a skilled engineer, I could extract this and have a copy,” said Bambauer. “Assuming for a moment that if I did that it would be reasonable, it should be no different.”

Sharing ROMs is unequivocally illegal

cart-box-nes games

This fair use argument has potential very far-reaching, but there are limits. “The problem comes when I no longer just have a copy, but give other people a copy,” said Bambauer.

Think of the entertainment industry. The RIAA and MPAA have found better luck searching for sites and people who share music, rather than downloaders. For ROMs, it works much the same way, which is why sites sharing games are shut down so often.

“Once you distribute a ROM, most people who download it probably don’t have legal copies of the game,” said Bambauer. “Then it is market damage, because Nintendo should be able to sell to those people.”

Therefore, even if you have a game, it may be a good idea to avoid downloading ROMs from peer-to-peer networks, where you share a copy of the game while downloading it.

What if a game is not currently on the market?

Many people online claim that if a game is not currently available in the market, downloading a ROM is legal. After all: there can be no market damage if a game is currently not available in digital form.

That argument may not be airtight, according to Bambauer.

“On the one hand, there is no amount of money that will allow me to get a legal copy of this game,” said Bambauer. “On the other side of the argument, there’s what Disney is doing.” Disney’s strategy is to put classic movies “in the vault” for extended periods of time. Rather than constantly releasing movies on the market, they periodically re-release them, increasing demand and increasing sales when that release actually comes.

Video game companies could argue that they are doing the same with games that are currently unreleased, and that ROMs lower the potential market value. “It’s a close case,” says Bambauer, “and hasn’t been tested much.” But they could make that argument.

At the same time, he notes that a game that is not currently on the market could potentially 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 have a copy,” said Bambauer again hypothetically. “So it’s like owning a CD and ripping it yourself.”

All of this is mainly hypothetical

You are probably starting to see a pattern here. ROMs are such a gray area because there are potential legal defenses on both sides – but no one has really tested these arguments before. Bambauer could not refer to any case law specifically pertaining to video game ROMs, and was usually only extrapolating from other areas of Internet copyright.

However, if one thing is clear, it’s this: if you don’t have a legal copy of a game, you don’t have the right to download it (yes, even if you delete it after 24 hours, or other similar nonsense). ).

Image credit: LazyThumbs, Fjölnir Ásgeirsson, Hades2k, Zach Zupancic, wisekris

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