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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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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. – jmfsg♦ Aug 7 '10 at 23:23

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

2 Answers

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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
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
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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
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

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