Is Emulation Legal?

Disclaimer: I am not a lawyer.

Emulation? Yes. Emulation software is 100% legal, unless you’ve illegally downloaded a copyrighted BIOS file to use with the emulator. However, most emulators today have developed their own replacements for copyrighted BIOS files.

Even so, if you own the console containing the copyrighted BIOS file, you can use special software or hacked memory cards etc to “dump” your own BIOS file from your console and use it however you like. Connectix won a lawsuit against Sony regarding the copyrighted BIOS file. It was legal for Connectix to reverse engineer an alternative to the Playstation BIOS, since they used the BIOS from their own console that they purchased.

Are ROMs legal?

It depends. Downloading ROMs from the internet is technically always illegal, whether you own the game or not (this is a common misconception, but see my thoughts on ethics vs legality below). You’re downloading a backup of copyrighted data that doesn’t belong to you.

However, if you own a copy of a game, you are legally entitled to make your own back up of that game. So, if you “dump” your own ROMs from your own games (using specialized hardware and software), you’re legally in the clear. You purchased the game, you are legally entitled to make a backup (ROM file) of that data, and use it however you wish – as long as you don’t share or distribute, thus violating copyright laws.

The ethical gray area.

Because it’s such a pain to acquire specialized hardware and learn to dump your own ROMs, ISOs, etc, many gamers operate under this common ethical principle: “If you own the game, it’s ethically OK to download a ROM.”

As I explained above, downloading ROMs from the internet is technically illegal, but many would agree that ethically this is acceptable if you own the game. The chances of being sued by a developer/publisher for downloading ROMs from a ROM site is very low. They tend to focus on the site owners distributing or selling the ROMs, not the gamers downloading the ROMs. To my (limited) knowledge, there have been no cases against individual gamers themselves, only mass distributors.

An argument in defense of this practice (downloading ROMs for games that you already own) is that it’s the same data. The 1’s and 0’s of the ROM you would dump yourself will almost always be the same exact 1’s and 0’s of the ROM you download from the internet (if you stick to the same version/release/region). It seems silly to require many difficult steps in achieving the same outcome, an identical ROM file.

The bottom line is this:
For the sake of supporting the gaming industry, if a game is commercially available to purchase, you should purchase the game. Sadly, there are loads of great games that are not commercially available anymore (see more on abandonware below), and your only option is to fork over hundreds of smackers for a used copy on eBay. Purchasing used copies doesn’t support the creators of the game anyway. Thankfully, there are a few devs/publishers that are intentional about making their classic games available on PC or modern console. Show your support and purchase these games and collections whenever possible.

What is abandonware?

Abandonware is a term used to describe games that are no longer commercially available, and the copyright holder is either defunct or has “abandoned” the commercialization of an old game. Ethically, downloading abandonware lies in an even deeper gray area than downloading ROMs for games you already own, but there is still support for this practice in the gaming community.

The challenge is properly discerning which games are truly abandonware and which games are merely sitting in an active company’s “vault,” with potential to see commercial re-release. Without inside information, this is usually not a question that common gamers can answer. Many believed that because of the very complex web of licensing and rights issues, Rare’s GoldenEye 007 for N64 would never again see the light of day. Yet, somehow Nintendo must have untangled this web, because they were able to bring the game to their NSO collection. The game is no longer considered abandonware.

Still, in spite of the muddy definition of true abandonware, there are some gamers that feel it is ethically acceptable to download the ROM of an older game that is no longer commercially available to purchase. There are still lots of questions surrounding this abandonware issue.

How long should the gaming community wait before identifying a game as abandonware? Kirby’s Return to Dreamland (Wii, 2011) may have been considered by some to be abandonware, but Nintendo recently released an updated version on the Switch. What about 3DS and Wii U games? Nintendo has removed these catalogues from the eShop, but is it too soon to start stamping games as “abandonware”?

I’m not sure there are clear answers to these kinds of questions, but it’s always good to fall back on this principle – if a game you’ve downloaded and enjoyed as abandonware is commercially resurrected, show your support for the dev/publisher by purchasing the game.

What are your thoughts on these issues? Comment below.