Last updated: 24OCT2020 (see Changelog for details)
The files needed to run retro games are fairly easy to find on the Internet, but is the act of downloading these files illegal? Turns out the answer is not easy to pin down, because video game copyright has not been tested in court. So let’s look at what we know at this moment in history.
Emulators are likely 100% legal
Game files are saved on Read-Only Memory images, better known as ROMs. They’re basically a “dump” of a game cartridge’s contents into a single file. The programs that run ROMs are known as emulators; these programs emulate a specific video game environment and load ROMs like the original system loads a cartridge or game disc. Emulators are certainly legal to download, they’re just software files. In fact, in 1999 Sony tried to sue a company for creating an emulator and lost the court ruling on every single count. That being said, some emulators require you to load BIOS (boot files) that are specific to a device, such as the Sega CD or Sony Playstation, in order to work properly; the legality or propriety of loading these BIOS files into an emulator is a matter of debate. But the real legal dispute starts when you load a ROM file into an emulator, and play the game. Let’s discuss.
Market harm and the Fair Use standard
In the United States, copyrighted works are protected for 75 years. The underlying basis of copyright is to protect the value of a product. So for example, if Sega creates and releases a game for sale, they expect to be compensated for its purchase and use. But if you download the game without purchasing it, you are creating market harm; in other words, you downloaded a game as a substitution for its purchase. That is a violation of copyright law.
Now if you back up a copy of media you already own — like ripping a music CD to mp3 so you can load it onto an iPod — previous court proceedings have ruled that there is no market harm. You’ve already purchased the music, you are simply backing it up and transferring your purchase to another medium. This concept is known as the Fair Use Standard; along those same lines, if you already own a game, and you back up your game into a ROM file to play on a different medium, that is legally defensible. Similarly, if you download a ROM of a game you already own, that could be okay too. But like I wrote above, video game copyright has not been tested in court, so the jury is still out (pun intended).
The murky waters of ownership
Things can get more complicated if you think about ownership. What does it mean to “own” a game? Having a cartridge, CD, or receipt in hand?
For example, I shelled out hundreds of dollars to buy digital versions of classic NES, SNES, and Nintendo 64 games via the Virtual Console on my Nintendo Wii in the mid-to-late-2000s. Many of these I already owned on cartridge, but I appreciated the convenience of accessing these games through my Wii. Similarly, I re-purchased a lot of these games so my children to play them on their 3DS several years later. So the question remains: do I still “own” those games, and does that mean that I am within my rights (under Fair Use) to download backup copies to use on my retro handheld device? I could jump onto my old Wii or 3DS right now and pull up those games — so what difference does it make if I similarly fire up a backup file on a handheld gaming device?
Along those same lines, I have purchased the NES and SNES Classic mini-consoles, which are pre-loaded with dozens of games. Do I now “own” those games? What about the NES and SNES games that are included in my annual subscription to Nintendo Online? I’m in no way asserting that these “ownership” cases are legally-binding justification to download and install ROMs on your classic device; I’m simply highlighting the murky legal waters of retro game emulation. After all, these mini-consoles themselves are simply emulation machines — heck, the PlayStation Classic uses the same open-source emulation software that the RG350’s PS1 emulator is based on.
And without getting too far into a tangent, some savvy emulation folks were able to extract and analyze the game files that run on the Wii Virtual Console, and found that the NES ROMs used in the Virtual Console have identical iNES headers as the ROM files you could find online; this revelation prompted speculation that Nintendo itself downloaded its ROM files from the Internet before loading them onto the Virtual Console.
Backing up your own games
Although some copyright scholars have argued that there is no legal difference between backing up your own game file or downloading a game file for a game you already own, there’s no question that one has better optics. So if you’re interested, here is more information about how to back up your own game files.
There are devices out there that allow you to back up copies of physical games you already own. For example, the Flash Boy Cyclone works with your GameBoy, GameBoy Color, and GameBoy Advance cartridges, and this Retrode2 allows you to back up your SNES and Genesis games. The INLretro Dumper-Programmer is still a work-in-progress, but it can back up NES, SNES, Genesis, N64, and GameBoy/GBA games. And finally, PS1 games can be ripped using ImgBurn, a free disc image burning software. For a more comprehensive list of game ripping options, check out this wiki page.
Another point to make is with classic PC games. I mean, how many times have you bought the original Doom during your lifetime? To run a game like Doom, you have several options, but when it comes down to it, you simply use a launcher to load your personal game files. And legally purchasing PC game files is actually very simple (especially when compared to the headache of dumping cartridge-based games): the fantastic site GOG.com (“good old games”) allows you to legally purchase DRM-free versions of classic PC games. From there, you just download the game files and transfer the required files to your device. At this point, you are just loading your purchased game onto a different operating system. Everybody wins: id Software gets a bit of royalties from your purchase, GOG gets their share, and you walk away with a perfectly legal, DRM-free version of Doom for $3 that you can load onto your PC or handheld gaming device.
The bottom line: ¯\_(ツ)_/¯
One thing is for certain: copyright protects works for 75 years, and no video games are 75 years old yet. So all video games are protected by copyright in some form. And since video game copyright has not been tested in court, there is no definitive answer when it comes to its backup and use. And opinions vary in the video game world; for example, Nintendo’s site very strongly suggests that they consider downloading any ROM, even if you own the game already, is illegal. But their opinion as a corporation has also not been tested in court.
But we do know what is most certainly illegal: based on current copyright law for other media (namely movies and music), downloading ROMs of games you do not own is illegal. Similarly, sharing ROMs on the internet for public use is also certainly illegal. Everything else is untested, but the general consensus is that backing up your purchased media and transferring it to other platforms is legally defensible.
The bottom line for this site is that we will never host or link to game files. It is up to you to back up your own game files, or find and download backups of games you already own.
– added Sony vs Bleem link
– published guide