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There’s nothing quite like reliving your childhood with, but are emulators and ROMs legal? The internet will give you a lot of answers, but we talked to a lawyer to get a more definitive answer. Emulators are legal to download and use, however, sharing copyrighted ROMs online is illegal. There is no legal precedent for ripping and downloading ROMs for games you own, though an argument could be made for fair use. To find out, we asked, who teaches Internet law and intellectual property at the University of Arizona’s College of Law.
Unfortunately, we discovered that no definitive answer truly exists, since these arguments have yet to be tested in court. But we can at least bust some myths that are floating around 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 easy stuff. Despite what you may have heard, there’s not a lot of question as to whether emulators themselves are legal. An emulator is just a piece of software meant to emulate a game system—but most don’t contain any proprietary code.
(There are exceptions, of course, such as the BIOS files that are required by certain emulators to play games.) But emulators aren’t useful without game files—or ROMs—and ROMs are almost always an unauthorized copy of of a video game that’s protected by copyright. In the United States, copyright protects works for 75 years, meaning no major console titles will be public domain for decades. But even ROMs exist in a bit of a grey area, according to Bambauer. The Possible Exception for ROMs: Fair Use To begin: downloading a copy of a game you don’t own is not legal. 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 love Super Mario World, so I download a ROM and play it,” said Bambauer.
“That’s a violation of copyright.” That’s fairly clear cut, right? And it more or less aligns with the, where the company argues that downloading any ROM, whether you own the game or not, is illegal. But is there a legal defense? Possibly, if you already own a Super Mario World cartridge. Then, according to Bambauer, you might be covered by fair use.
“Fair use is a fuzzy standard, not a rule,” Bambauer explained. He says he could imagine a few possible defensible scenarios. “If I own a copy of Super Mario World, I can play it whenever I want,” he notes, “but what I’d really like to do is play it on my phone or my laptop.” In this case, downloading a ROM could be legally defensible. “You’re not giving the game to anybody else, you’re just playing a game you already own on your phone,” said Bambauer. “The argument would be there’s no market harm here; that it’s not substituting for a purchase.” Now, this isn’t black and white; just a potential 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’s by no means a silly one.” After all, Nintendo could argue that by emulating the game on your phone, instead of buying their official port of a game, they’re losing money. But, while there is no precedent specific to gaming, there is in other markets. “In the music industry, everyone accepts that space shifting is legal,” Bambauer notes.
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 web is a crime. Devices like the $60 let anyone extract a Super Nintendo or Sega Genesis game over USB, and state their legality over downloads as a key selling point. After all, ripping a CD you own with iTunes or other software is broadly considered legal, at least in the United States.
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So is ripping a ROM you own any different than downloading one? Probably not, says Bambauer: “In both cases what you’re doing is creating an additional copy.” Now, Bambauer could imagine constructing an argument about how one is different than the other, and he admits the optics are different. But he doesn’t think the two situations are all that distinct, legally speaking. “I think if the argument is, if I were a skilled engineer, I could extract this and have a copy,” said Bambauer. “If we assume, for a moment, that if I did that it would be fair use, then it shouldn’t be different.” Sharing ROMs Is Unambiguously Illegal This fair use argument is potentially very wide reaching, but there are limits. “The trouble comes when it’s no longer just me having a copy, it’s giving other people a copy,” said Bambauer. Consider the entertainment industry.