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Is Downloading Retro Video Game ROMs Ever Legal?

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 tofreeroms.

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 language regarding ROMs on Nintendo’s website, 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.”

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 Retrode 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. 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.”