I hear a lot about how emulation is not illegal or that downloading ROMs is legal in some circumstances and I would really like to know the truth about emulators and ROMs in relation to the law.

For instance, I've heard that downloading emulators is fine, but downloading ROMs is not. If this is true, that seems a bit contrived (who would download an emulator just to have it sit there? Doesn't seem realistic).

Another rumor I heard is that you can download ROMs for a 24/48 hour period, and then must delete them after unless you own the game physically. True or not? If it's true this also doesn't seem realistic. But even so, why hasn't someone created a service that allows you to download ROMs and they automatically expire after 24/48 hours, which you would then have to purchase to continue playing? Seems workable yet I've seen no such service available.

There are other things I'd like to know too, like whether or not one could get in trouble for downloading ROMs of games no longer being sold, or for hosting emulators or ROMs on a website (perhaps for personal use only), or what the law differences might be between different generations of consoles, etc.

Bara

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migrated from gaming.stackexchange.com Aug 6 '10 at 20:05

This question came from our site for passionate videogamers on all platforms.

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we are not lawyers, the answer can differ based on juristiction. (not to mention, ROMs are usually unauthorized copies of copyrighted content.) – alexanderpas Aug 6 '10 at 20:11
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This was migrated because it was asked just when a few posts that referenced this topic were deleted; so this question seems to be in the spirit of "why can't I ask or answer where to download ROMS?" which would make it a meta question. – juanformoso Aug 7 '10 at 23:23
up vote 4 down vote accepted

I'm not going to bore you with the specific DMCA regulations (you can look them up yourself if you really want to) but suffice to say they're almost always illegal. Emulators aren't because they don't violate any law, ROMs violate copyright laws. So while it doesn't make sense to use emulators without ROMs, it is legal. Just like it is legal to have an empty beer bottle if you're under 16 but not have alcohol.

There is no 24/48 hour exemption. Linking to copyrighted content, hosting it and downloading it is always illegal.

You can get in trouble for downloading ROMs of games no longer sold as well, and hosting illegal content is illegal too.

Nintendo explains it pretty well on their legal page.

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I'd like to add that the ONLY time that you can legally have a ROM is if it was 1) purposefully released into the public domain by the copyright owner, 2) was given or sold to you by the copyright owner, 3) has had its copyright expire (75 years after publication, i.e. no video games until well into this century), or 4) it is an archival copy that YOU created for backup purposes (it cannot be a downloaded copy) – BarrettJ Aug 6 '10 at 20:27
    
Thank you for answering my questions. The main point seems to be "avoid ROMs" so I think we'll leave it at that. – Bara Aug 6 '10 at 20:42
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@BarrettJ that's 70 years after the author's death in most countries, otherwise you're spot on. It depends on jurisdiction, there are also countries in which it is either much longer or shorter. – user56 Aug 6 '10 at 20:58
    
Emulators can be illegal too. Also, the nintendo legal page isn't amazing description of the relevant law; it's a little biased, but it's decent. – McKay Aug 6 '10 at 21:26
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It's fully accurate though. And no, emulators, the parts of software that emulate something are never illegal. If the emulator contains copyrighted or otherwise illegal content the package will be illegal though. – user56 Aug 6 '10 at 21:36
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@Arda It has been argued that emulators are a violation of the DMCA. Even though it's an original work, it enables users to bypass copyright. That the hardware controlls access to the games. – McKay Aug 6 '10 at 22:16
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No. The ROM creation software would enable users to bypass copyright. Emulators have completely valid use for say homebrew, or playing self-made backups. – user56 Aug 6 '10 at 23:38
    
@Arda actually, copy right has been extended in such a way that nothing made in the last century is going to be out of copyright until half way through this century at the very least, so I doubt companies battling for IP are going to do so in the spirit of the law. It is interesting to note, however, that ROM creation software cannot be made illegal for the same reason we're allowed to encrypt data: it's a repression of freedom of speech. One could say that cars are a violation of the law because they allow bank robbers to make their getaways. Try that one in court... – mechko Aug 8 '10 at 1:04
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@Arda when I said "It has been argued that emulators are a violation of the DMCA" I was saying that because it's true. It has been argued that. Nintendo essentially argues that on the legal page you mentioned. Because it enables people to play illegal roms. The Nintendo itself is a technological measure. By making an emulator, and offering it, you are helping others bypass that hardware technological measure. – McKay Aug 9 '10 at 22:06
    
How exactly is a "self-made" backup made, I wonder? – Shotgun Ninja Jul 1 '13 at 17:51
    
@Shotgun for any device from the last ~15 years or so? By means that violate the anti-circumvention provision of the DMCA and it's WIPO-signatory equivalents. – LessPop_MoreFizz Jul 1 '13 at 17:54

So, ROM is the data inside a cartridge, but it also refers to the copy of that data on a cartridge.

It is generally considered legal to make a backup / archival copy of a ROM yourself. Though if you have to bypass some DRM to do so, it might or might not be illegal. The law isn't as clear here, and it depends on what the DRM is.

If you have a (copyrighted) ROM (which they almost always are) and you make it available for copy, you are almost certanly in violation of the law.

Downloading ROMs hosted by others is another grey area. Theoretically, if they're offering it for download, you might be able to legally presume that they have the rights to distribue the ROM. They could have acquired those rights. It's like buying stolen goods on ebay. You aren't the one in violation of the law. The law is definitely unclear on this though.

(I am not a lawyer, this is not legal advice)

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The law is very clear on this area. "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." Also, buying goods which you know are stolen is illegal. If anything it constitutes inciting crime. – user56 Aug 6 '10 at 23:53
    
By the way, where is this "backup / archival exemption"? I can't find it anywhere in the DMCA. – user56 Aug 6 '10 at 23:59
    
@Arda Jailbreaking was ruled legal by Library of Congress under interpretation of DMCA. DMCA has provisions for Fair Use which have been hotly disputed (like the right to put music from a cd on your mp3 player, or the short lived minidisc players) or making backups of your DVD's. While McKay is correct in stating that you can plead ignorance in court, the fact is you can still be taken to court. – mechko Aug 8 '10 at 1:08
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We can't provide any legal advice based on possible future interpretations of the law though. – user56 Aug 8 '10 at 19:19
    
@Arda backup / archival is legal, according to fair use. The courts have been arguing over which is stronger, fair use or the DMCA. Current rulings imply that fair use is stronger. But, If you don't break an encryption or other technological measure, backup (for personal use) is very clearly, totally legal. e.g. if I have an encrypted Blu-ray disk, it's legal for me to make a backup / archive of the encrypted form of the blu-ray, because I'm not overriding a technological measure. I'm just making a copy. The same rule generally applies to directly copying a ROM. – McKay Aug 9 '10 at 21:54
    
Alright then. We can tell him how to make a backup. It's a bit of a waste of a Wii disc to make a copy you can't use however. – user56 Aug 10 '10 at 14:27
    
If you buy stolen goods on eBay, and the police discover the theft and trace the goods, they will repossess them ... if the analogy holds, then you aren't breaking the law as long as you aren't aware that the ROMs are illegally hosted, but you also don't own them once you download them. I think the problem with the analogy is that almost all stolen goods can be bought legitimately elsewhere on eBay, but there are presumably very few places that have legally distributed ROMs (given the discussions above about copyright). – Dave DuPlantis Apr 18 '11 at 15:54

There are more grey areas that exist than those stated already. The blacks law dictionary(a legal authority recognised by every known us court) defines "own" in such a way that the mere act of holding something or being in close proximity to itmakes you the owner (this kind of law allows prosecutors to charge everyone in a house with drugs even if some could pass clean tests) If you were charged with illegally possessing copyrighted materials the courts would have to prove that you were not the legal owner. Many people will advise keeping the lightest smallest part of owned content (ie the paper insert under the plastic with the upc)stored in the safest place to ensure protection of such rights if need arises. I am not aware of any person ever being convicted in any court for having only backed up content of products which he has legaly purchased (downloaded or self produced). The act of downloading content you legally own rights to could fall under fair use as well , as with many of these products the tech required to make a digital backup (which you are entitled to) can be beyond your own skill level on multiple levels from running the software involved to the base ability to perform basic solidering and desolidering can be acts you are unable to perform especially with age. not to mention the fact that if you could do it you are undoubtedly devaluing the quality of your own product in the process as it is no longer a factory approved job but a modified and tampered with product. For these reasons it should be fair to say you simply wanted access to what you owned without damaging the storage device you bought it in.

That said I am not a lawyer though I have spent 3years as a paralegal and did research this topic strongly durring such term.Though as has become quite evident to me no quantity of facts of law or reality can guarantee a guilty man be convicted nor the innocent go free. There is a saying "absolute power corrupts absolutely"...the courts are granted absolute immunity to any act they perform from their position, and often spend days on end socially with prosecutors and officers alike...if you think they are unbiased you are a fool...are they going to jeopardise the career of their drinking buddy for the sake of some guy facing a few years(which is likely how long they have a working relationship) and a few bucks (compared to their sallery)you are still mistaken....so better safe than sorry,keep your stuff safe and if you really gotta have it do it yourself....

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If you're a paralegal, or were, your grammer and spelling should be much better than what you're currently displaying. Suffice it to say, your interpretation is incorrect. – Frank 2 days ago
    
was a paralegal grammatical propriety not being my strongest forte doesnt mean my research is invalid... – Firobug 2 days ago
    
Your research is invalid because there is absolutely zero precedent for your interpretation. If you were a paralegal, you'd know that. We strive to provide correct information. As it stands, your view of copyright would never hold up in court, and has, in fact, been deemed illegal. – Frank 2 days ago

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