Are Game Emulators Legal? Everything you Need to Know

Most gamers will remember their earliest experiences with emulators. These pieces of software are miraculous, translating the hardware of history’s greatest game consoles into software that can run on your PC. Combine them with these little things called ROMs (video games copied onto PCs from their native cartridges), and you have access to almost all the gaming back-catalogues from the NES right up to the Xbox – though rumour has it a PS3 emulator is in the works.

The promise of game emulators and ROMs is so seductive that it’s easy to bury your head in the sand regarding their legality. Here’s everything you need to know.

First, it’s important to clarify that the emulator is just the software that replicates the hardware of a given console. So Project 64 is an N64 emulator, PCSX 2 is a PS2 one, and Dolphin is the name of the GameCube emulator. The software is created using a lengthy process of reverse engineering to decipher just how a given console works.

The emulators themselves are legal, and while certain game companies made it clear that they don’t like them, you can download and install them without fear of legal repercussion. The most relevant case relating to emulators is Sega vs. Accolade (1992), when Accolade’s reverse engineering of Genesis titles was deemed legal under fair use laws.

As you can imagine, game publishers aren’t too keen on emulators. Aside from the above case, the PS1 emulator Bleem! faced Sony’s wrath after it was a bit too vocal in its marketing of the emulator’s powers to play PS1 game ISOs (essentially ROMs, but for CD-based games). Sony launched a lawsuit, but despite leading Bleem! to bankruptcy, they failed to win the case.

In 2009, Nintendo won a lawsuit against a company that made a device allowing people to play Nintendo DS ROMs downloaded from the internet. Back in 2003, they successfully sued a Hong Kong company for selling a device that backed up Game Boy games to PC.

With all that said, Nintendo never launched a case against a console emulator. They do, however, have a detailed document on their site explaining that ROMs are illegal and that emulators facilitate their use and damage the company (though crucially stopped short of calling emulators illegal).

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One of the long-standing myths around ROMs is that if you own – or at one point owned – the original version of the game, then you can download the ROM from the Internet. Not true. What you can do is make a backup copy of your game under Fair Use in the event that the original should be accidentally destroyed. You cannot distribute the copy or ROM that you make.

In 2006 the DMCA made an exemption to the illegality of acquiring ROMs (though a little loosely worded), which seems to say that if the hardware is obsolete and “not reasonably available in the marketplace,” then you can circumvent its copy protections to preserve it. Here’s the relevant piece of info from the DMCA:

Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

There are technically other ways for you to legally own ROMS, but in reality they’re not likely to happen. Here are the possibilities:

  • If the copyright owner has explicitly made the game available in the public domain.
  • If the copyright of a game expires – 75 years from the date of publication – and it doesn’t get renewed (considering most video games have been about for under 30 years, you’ve got a long wait yet).
  • If the ROM was given or sold to you by the copyright owner.

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There are a lot of nuances and finer points to think about with video game emulators and ROMs, but in a nutshell you can download emulators but you can’t download ROMs no matter what. Morally, is there anything wrong with downloading a ROM of a game you already own as opposed to making your own copy? Well, that’s a topic for another day.

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