If you want to play classic games on a modern PC, downloading emulators and ROMs (files ripped from cartridges or discs) is a popular solution, offered by sites such as LoveROMs or LoveRETRO. Running your favorite SNES title on your laptop seems like harmless fun…until you find out that you’re probably breaking the law. Both the games and the game systems they come from are copyrighted intellectual property, as two ROM websites found out the hard way when Nintendo sued them this week.
While those sites were sharing Nintendo ROMs, the act of downloading them is also likely illegal, even if you already own those games on an old cartridge or disc. To find out more about how the law views game emulators, I spoke with three different intellectual property lawyers.
Unless you want Nintendo to come after you for $150,000 an incident, forget about hosting ROM downloads. All the lawyers agreed that emulation sites are committing copyright infringement if the games they offer are protected by owners as copyrighted material (which they usually are).
“If you’re hosting the site, you potentially could be liable for direct infringement of a copyright in the game, as well as the emulator may have software of some of the code from the console or platform that the game runs on. So the emulator itself may be copyright violation of the code in the platform or the code in the console, and then the games themselves would be copyright infringing items, assuming they’re games that are owned by a third party and the third party has not authorized their use,” Sean Kane, co-chair of the Interactive Entertainment Group at law firm Frankfurt Kurnit Klein & Selz, explained.
There are different types of copyright infringement, but if the site is distributing an emulated title that they don’t have the rights to, then downloading it is a form of copyright infringement too.
But should individual gamers/downloaders be worried about getting a summons? Probably not.
“The reality of the situation is if you’re downloading it for personal use and you’re not commercializing it any way, a company may not ever find out that you’ve done that, or they might not care too much because it’s not necessarily hurting their bottom line that greatly if it’s just one individual,” Kane said.
Mitch Stoltz, senior staff attorney at Electronic Frontier Foundation, agreed that solitary gamers probably won’t be served by a company like Nintendo.
“I think it’d be rare and approaching never that they go after individual downloaders,” he said.
Kane noted, however, that there are companies that take these things “very seriously,” and there have been cases where companies sued individuals for downloading something, even if it was for non-commercial use. But Kane could not immediately think of any examples of companies doing this over emulated video games.
And if you’re waiting for some of the oldest games to enter the public domain, you’ll be waiting for a while - “decades, and decades and decades,” according to S. Gregory Boyd, partner and co-chair of the Interactive Entertainment Group at Frankfurt Kurnit. Determining exactly how long a video game copyright can last is complicated, though. You can see how much situations vary here. Things like where and when the game was made and who owns it are all factors. Plus, every 20-30 years copyright statutes are reevaluated.
“The nostalgic early video games are probably going to be under copyright until at least when their original players are in their 60s and 70s,” Boyd said.
But [Insert Failed Video Game Company Here] No Longer Exists!
One reason people may seek an emulated ROM game is because the company that made it no longer exists, making the title hard to find. In these cases, there’s a stronger claim for emulating to fall under fair use.
“There are no hard-and-fast categories, but you’re on somewhat safer ground there, especially if the game is no longer sold and there’s no easy way to get it in playable form,” Stoltz said.
But often, defunct companies’ assets are purchased, so even if the company no longer exists, some other firm may own the right to their game(s). Thus, downloading it from a ROM hosting site would be a form of copyright infringement.
“If it was a real video game company - and the games people cared about were from real video game companies - someone bought those assets…out of bankruptcy,” Boyd explained. “Someone owns it, but determining that chain of title is often difficult. It comes down to enforcement, at the end of the day. People might tolerate the emulation of certain games, … but if the actual owner decides to enforce against you, then you would be in the wrong. And owners are lately deciding to enforce because they’re able to have a revival of selling these games on mobile."
But as Kane pointed out, if there’s no company to stand up and claim ownership of the game, it’s likely that nothing will happen to a gamer who downloads an emulated version.
Emulating a Game Legally
For the most part, emulators in and of themselves do not fall under any copyright infringement, depending on their purpose. And, as mentioned before, it’s unlikely a firm will call copyright infringement on a game if no company own the rights to it, or if no one really cares about the game.
But what about the games people and companies do care about? It turns out, you’re welcome to emulate any game for backup, so long as it’s not used for commercial use. Check out what the U.S. Copyright Office has to say about it:
“Under section 117, you or someone you authorize may make a copy of an original computer program if the new copy is being made for archival (i.e., backup) purposes only; you are the legal owner of the copy; and any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.”
But selling that backup copy is another story, according to the U.S. Copyright Office:
“If you lawfully own a computer program, you may sell or transfer that lawful copy together with a lawfully made backup copy of the software, but you may not sell the backup copy alone. … In addition to being a violation of the exclusive right of distribution, such activity is also likely to be a violation of the terms of the license to the software. … You should be wary of sites that offer to sell you a backup copy. And if you do buy an illegal backup copy, you will be engaging in copyright infringement if you load that illegal copy onto your computer …”
Additional cases for emulating a game (that you paid for) under fair use include doing so for study, scholarship, preservation or review and commentary, Stoltz told me. However, he noted that “there are no real hard-and-fast categories” here.
If your goal is simply to find a way to play classic Sonic on a current device, consider checking mobile app stores. There are a number of classic-games-turned-apps. And as Boyd noted, current-generation phones and tablets have better technology than all but roughly the two most recent generations of video game consoles.
Another option for getting your classics fix is from non-profit Internet Archive’s Internet Arcade, where you can currently play 1,785 coin-operated arcade games, many from the '70s, '80s and '90s, online. There’s also Good Old Games (GOG), a Steam competitor founded by The Witcher developer CD Projekt. The site offers old, and some newer, PC games tweaked to run on modern hardware, which you can buy and play on multiple PCs repeatedly. It purposely works with games lacking digital rights management, which restricts use of copyrighted works. And GOG has partnerships with Ubisoft, Cinemaware, Disney Interactive / LucasArts and Bethesda Softworks to sell games from their back catalogues.
Can I Rightfully Download an Emulated Game if I Own a Cartridge?
Let’s say you own a cartridge of the the first Donkey Kong and want to download an emulated version from a ROM site. It turns out that that’s copyright infringement as well. As noted above, while creating your own backup copy is generally okay, downloading someone else’s backup (or distributing your own backup) is not. As the U.S. Copyright Office puts it, “if you want a backup copy of a lawfully owned computer program, back it up yourself.”
Nintendo’s (Probably) Going to Win
Now that you know a bit about the laws surrounding video game emulation, you’ve probably deduced that LoveROMS and LoveRETRO likely committed copyright infringement by distributing copyrighted games without Nintendo’s permission or giving Nintendo any money. But the sites may be able to fight Nintendo off.
“It doesn’t mean that the websites may not be able to put up defenses, including the fact that it seems like there’s reference in the complaint that the websites [have] been around since [around] 2010, and so the website could potentially have an argument that Nintendo has kind of sat on its rights too long,” Kane said.
While this is a bummer for these sites’ users and may spark accusations of Nintendo not caring about its hardcore fans, Boyd argues that fighting distribution of emulated games is “pro-creator.”
“For some of these games, the people that originally made them might still be making money off them, and when they’re resold again in [an] app store they’re often $.99 or $2. I think there’s another side of this where if you really want to reward the company or the people that made the game, you’d be better off getting them that way. It becomes a tougher position to hold, of course, when there’s no other way to access the game except through an emulator; I acknowledge that too,” he said.
But if companies insist on holding onto the rights of games people love but don’t distribute them to fans, the gaming community may suffer.
“The penalties for copyright infringement are far too high and they are unpredictable, and that causes a lot of people to avoid doing things that they really ought to be able to do, like helping bring back old games that are not available anymore because they risk these massive penalties. That’s a problem,” Stoltz said. “Those games are sort of falling into the dustbin of history, and that doesn’t need to happen, especially when there’s a passionate fan community that wants to bring them back. But what makes that hard is this risk of really high and unpredictable copyright penalties.”
