Published on September 9th, 2013 | by APant10
Copyright and Emulator Law: A Primer
Emulators are a magical tool for retro gamers, archivists, and pretty much anybody that uses any kind of computer. An emulator is just a program that emulates or mimics the hardware or software of another computer. In terms of gaming, the word refers to computer programs that play games from old video game consoles. But put 10 retro gamers in a room and you’ll get 10 different opinions on the legality and morality of emulators (and probably that many cool Mario T-shirts).
This is just an overview of the laws and regulatons about video game emulators, don’t take it as legal advice. Remember that laws vary widely by country and state.
Hardware: Nintendo invested a lot of time and money to make the NES back in the 80s, how can someone rip it off and give it away?
In the US, a person or company can file a patent on a piece of technology. This means that they have rights to produce and sell it for 20 years after it is patented, and anyone else who wants to make it must get permission from the patent holder. Nintendo’s 20 years is up. That’s why you have companies that make hardware clones of the old game systems like the Retro Duo or the Rertron 3 that use actual game cartridges and controllers from their clone-ees. What they can’t do is call it the Nintendo Something Something, since Nintendo still owns the trademark for that name. A trademark is a name, logo, or other kind of mark that is registered to a person or business in order to help identify them.
Software: But what about the games?
Yeah, that’s the problem. If you download a copy of a game you don’t own and never paid for, that’s piracy. In the case of something like the unfinished Bio Force Ape prototype, the studio that made it has been defunct for decades and there’s no legitimate way of buying the game, so nobody would care if you downloaded a copy. With something like Mario or Zelda, Nintnedo has its own shop for buying those, so it could be argued that downloading a ROM takes a sale away from them.
If you already have a copy of the game, is that OK? Well, kinda. US copyright law says you can make a backup or “archival copy” of software you own, provided it’s for personal use. A strict reading of that indicates it’s only legal if you are the one making the copy, with something like a ROM dumper. Downloading a game would be illegal in that case, even if you own a copy.
What about ROM Hacks?
In the case of something like Minus Infinity, it’s hard to say. The Digital Millennium Copyright Act makes it illegal to circumvent any security measure put in place to prevent illegal distribution. I wouldn’t be able to speak to weather PureSabe did this when making his game, since I’m not an expert, not to mention Megaman 4 came out a decade before the law. MI is built on the backbone of MM4, so there’s also the argument that the two are essentially one in the same.
The most important thing to remember here is that fan-made games, whether hacks or built-from-scratch titles, have been both embraced and shut down by the copyright holders in the past. Typically, they’re left alone if they’re not making any money off it, but Square Enix famously shut down an awesome-looking HD remake of Chrono Trigger, breaking many nerds’ hearts (mine included). Then again, sometimes your mod is so well-loved, that it becomes a bajillion dollar video game empire.
Long story short, if you’re downloading something off TotallyAwesomeROMZWarehouse.biz, it’s probably gonna be a violation of copyright law. You’re probably not going to get in trouble, but again, don’t be taking legal advice from me.