Is It Legal To Play Retro Game ROMs On Emulators?

Super Nintendo was my first ever console and there are games on that system that I still enjoy playing to this day. Unfortunately, my childhood console died over a decade ago and it's not always easy to find a Super Nintendo with all the right bits working. The easiest way to re-live my favourite childhood video games is through ROM (read-only memory) files and emulators. There is a swathe of video game ROMs and emulators floating around on the internet that can be readily downloaded. There are also people who convert their old games into ROM images so they can be backed up and conveniently accessed through emulators. So is any of this legal? Let's find out.

With a few simple clicks, we can download free software online and often we don't stop to think about the legalities of the action. Emulators and ROMs have gained a lot of momentum in recent years as a way to play games without the need for a physical console.

In a video games context, emulators are simply a piece of software that pretends to be a physical gaming system. Let's clear one thing up first: emulators themselves aren't exactly illegal. If you've obtained it lawfully and the code isn't under any form of copyright then it's completely fine. That's not usually a problem since most emulators are created to be free-to-use.

ROMs, on the other hand, are a different story. There's a common assumption that if you own the game, then it's fine for you to rip the data, turn it into a ROM image and store it as a backup copy or to play it on legal emulators. After all, you did pay for it and you're not sharing it.

Oliver Smith, intellectual property and technology lawyer at law firm Bird & Bird, explained to Lifehacker Australia why this assumption is wrong:

"Now we need to consider the laws around copyright in computer programs, a form of 'literary work' protected by the Australian Copyright Act 1968 (Act). In simple terms, 'copyright' is the 'right' to 'copy'. For the most part, that means a person (or in this case company) that owns copyright in a literary work, has the right to choose how and to whom a copy of that work is made available.   "If you use the cartridge to create a ROM image, you are making a copy of the game. That's not permitted under the Act, because copyright is the exclusive right to do acts comprised in the copyright in the work."

By now, you might be thinking, "But doesn't copying a ROM for a game I already own fall under the idea of Fair Use?"

To clarify, Fair Use is a concept that allows the use of copyright material for a limited and 'transformative' purpose. The latter includes using the content for commentary or criticism. Fair Use is often employed as a defense for copyright infringements.

Unfortunately, Australia doesn't have a Fair Use exception. As Smith explained: "Australia has a much more limited concept called 'fair dealing'. Fair dealing permits use of copyright work for certain limited purposes, including research or study, criticism or review, parody or satire, reporting news, judicial proceedings and professional advice."

There are some exceptions in the Australian Copyright Act for computer programs and for 'non-infringing back-ups', also known as 'format shifting', but that doesn't apply to all ROMs copied from old game cartridges or discs unless you obtain permission from the copyright holder. Smith said:

"This exception doesn't apply if the data in the ROM cartridge 'decompiled' to create the back-up, or if the owner has so designed the program that copies of it cannot be made without modification.   "Arguably, if the original might one day be a collectible, there is some merit to an argument that the ROM image is made so that the original can be stored away. But this is probably the exception rather than the rule. It would be harder to argue in our hypothetical that the ROM image was really made for the purpose of a back-up and not just so it can be played on a different device."

While there may be some exceptions if you do own the game and rip the ROM yourself, most of us are likely to just download ROMs that are already available online. That, Smith said, is definitely illegal and is no different from torrenting an episode of Game Of Thrones.

"So that's the long answer: unless a clear exception applies, the ROM image of Legend of Zelda is likely to be an illegal copy," he said.

The illegalities around obtaining ROMs are frustrating given physical copies of retro games are incredibly hard to find or are ridiculously expensive. This is compounded by the fact that working consoles that can play these games are also difficult to find. Sure, video games companies are increasingly catering to retro gamers by releasing some of our favourite titles through online marketplaces for their respective consoles, but the range is limited at best and the conversions often play poorly on the new systems.

There's a lot wrong with copyright laws in general and there are aspects that definitely deserve a review to bring them in line with modern times. Smith did offer a glimmer of hope in regards to this:

"But watch this space — the Productivity Commission is busy on a report to Government on copyright which is likely to include some recommendations about expanding "fair dealing" to include concepts of "fair use". It was already recommended by the Australian Law Reform Commission in its Copyright and the Digital Economy Report No. 122, released in 2014."

This story has been updated since its original publication.


Comments

    Unless you are live streaming it I don't see the police kicking down your door for playing ROMs via emulator.

    While I know it's wrong, the fact that most retro games aren't sold, let alone produced, anymore means that the big companies really aren't losing any money.
    Although, if you're willing to argue that game X has been released as a digital download on console Y, I'll tell you to fuck off as I'm not paying for a brand new console just to play a retro game.

    Don't copy that floppy

    Storing it as a backup copy is indeed completely legal.

      Do you have any evidence to back up that statement, or is it just cos your mum told you it was ok?

      BTW it IS completely legal to backup your statements with facts. (though I'm sure the government would like to outlaw facts)

        Section 47C of the Copyright Act enables back-up copies of computer games.

      Yes but when you then play that "backup" copy that you have in "storage" on an emulator (or some other platform) it then becomes illegal.

      Also, if you decide to give the original copy away or sell it (or even if it becomes unusable somehow and you throw it out) , your backup copy then becomes illegal.

        If your copy is rendered useless by a dog chewing it but you have a back-up and use the back-up but also keep the chewed copy, is it still illegal?

          That, I'm not 100% sure of. If you have a legit copy that's still in your possession but is no longer usable for some reason I dunno what the legal situation is in regards to your backup. I just know that if it's no longer in your possession, your backup becomes illegal and you must either destroy it or give it to whoever you passed the original onto so it's now theirs.

          If you can't use your backup copy if your original copy is rendered unusable it kinda defeats the purpose of a backup copy in the first place I think, but yeah as I said I don't actually know.

          Of course, many of the actual devices that are used to dump rom images are themselves illegal, so even the process of creating the backup in the first place for cartridge-based systems is iffy.

    As Smith explained: "Australia has a much more limited concept called 'fair dealing'. Fair dealing permits use of copyright work for certain limited purposes, including research or study, criticism or review, parody or satire, reporting news, judicial proceedings and professional advice.""I'm just doing 'research', your honour. I've been studying this game for a few weeks now. And I've been researching Game of Thrones once a week, two months a year, for so long I'm practically an expert."

    The illegalities around obtaining ROMs are frustrating given physical copies of retro games are incredibly hard to find or are ridiculously expensive
    Just because not being able to find something is "frustrating" or "ridiculously expensive" doesn't give you right to make/steal a copy of one. What entitled bollocks.

      Uh.. the author didn't say anything about being 'given the right' - they were just pointing out a truth. It is frustrating.

      There are quite a few gaming cafes out there that are reaping the financial rewards of emulated nostalgia (using a Raspberry Pi). I feel like they would be most at risk of litigation, considering the potential for legal compensation.

    But when I play a game, say from Steam on my PC, the PC makes a copy of the game in RAM. It doesn't play directly from the hard drive. I'm effectively making a copy, so doesn't this make it illegal?

    Back in the old console days, the game was actually played off the ROM in the cartridge and a copy was not made in RAM (since RAM was tiny).

      Dunno why you're getting voted down, its a fair question. A few years ago a business called Aereo was taking FTA signals and making them available to stream into markets otherwise not able to watch them - time delayed shows, blacked out sports events, that sort of thing. The temporary storage proved their downfall by turning what they were doing into a public transmission, and hence a breach of copyright.

      In practice though, it wouldn't work that way for games. The game is programmed to operate that way, so its just following its coding. As you have it from a legal source, and are using it as intended, that temporary copy wouldn't make it illegal.

        Thank you for taking the question seriously.

        What if the hard drive was on the other side of the planet? I'm playing a game here in Australia, but the actual game lived on an HDD in the UK? My PC is still making a copy of the game in RAM and running off of that.

        Extending this, what if someone else was playing the game off of the same hard drive? Then there would be multiple copies of the game in RAM at different physical locations, but only 1 copy on an HDD.

          I don't think it's making a copy, it's running in a different country and you're simply interacting with it. Think of it as running at the end of a very long joystick cable.

          Short answer is the same. The loading into RAM wouldn't cause problems. Other things might (and probably would), but not a copy, or copies loading into a PC's RAM.

          That's how software works, so its just doing what its designed to do. If it can be accessed remotely, its either designed to allow it, or at the very least NOT programmed to block it.

          Multiple people using the software probably breaks a few rules though, like licencing and cracked software, but that's a different set of issues.

    When a rom image has been modified to work with an emulation package, does that still allow the original company to take that modified image as is, and the emulator for it, rebadge it and stick it in there new consoles?

    I ask this because there have been a few cases where this has happened before, technically infringing copywrite on the emulator,

    If you can no longer purchase a new version of the game that gives the original creators money, then downloading the game for free should be considered legal, it is not my fault that the company does not supply the game anymore and I should not have to give money to someone for a used and probably badly looked after copy of the game

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