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Is it generally legal to download older ROM images of commercial software and games for non-commercial use in a retro computing system (emulated or otherwise)?

(Note that this question implies no special knowledge of those ROMs where rightsholders have expressly provided distribution and non-commercial use of their intellectual property, freely or for a fee. The assumption is that if you are in possession of one of those, you already know what legal right to use or download it you have.)

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    Laws are going to be different in each country. – cbmeeks Feb 14 '17 at 15:58
  • @cbmeeks is right - you will be getting as many different answers as there are countries present in this area. Im voting to close this as "too broad" – tofro Feb 14 '17 at 19:18
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    It should also be noted that a "ROM" doesn't have to be a copyrighted game or OS. A ROM could be 8KiB of $FF. I would imagine that would be legal to download anywhere downloading of anything is allowed. :-) – cbmeeks Feb 14 '17 at 19:26
  • @cbmeeks, oh, sure. If someone is giving away binary ROM images used for testing, development, or some other purpose, but it never originated from actual hardware (or software) no problem there. But the spirit of this question is related to those ROM download sites. – user12 Feb 14 '17 at 19:32
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    @jdv true. And I got that. I guess I sometimes get annoyed when people lump "ROM" download as always being bad or something that could be illegal. In the same way I get annoyed at people who believe torents are for illegal activities. Same goes for TOR, etc. FYI, I wasn't annoyed at the OP... – cbmeeks Feb 14 '17 at 19:56
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This question has generated a lot of interest regarding whether or not we can talk about copyright in a general, international way. I argue that we can because copyright and IP law in general is based on international law. There are very few places in the world where the implicit copyright to creations is not granted, as has been the case since at least 1967. Even those countries that are not signatories to the Berne convention have other international agreements that follow similar patterns.

That is, this question does not ask "what is the extent of this law, and what are the penalties for breaking the law" (which would then require inquiring into local statutes) but rather asks a much simpler question: "is it, generally speaking, illegal to provide copies of this material, or come into possession of the material without express permission of the rightsholders?"

It is an uncomfortable, unalterable fact that, globally speaking and at this moment, it is against international law to share or possess such material. How that law might be interpreted, and the specific legal risks and implications of that law where you live is certainly open to discussion, but is not actually part of this question or this answer. Answers that provide specific examples of how countries interpret international law are helpful background but we do not need to consult local law to answer the specific question at hand.

TL;DR: sharing or downloading ROM images is almost certainly illegal, or at least legally complicated. However, most rightsholders are likely not interested in pursuing action against individuals.

I am not a lawyer. This is not legal advice. Intellectual property law at a local and global level is a complex subject most lawyers don't even fully understand. Trying to distill all of that into a single SE answer is a fool's errand.

That being said, some general comments about the legalities of retro system ROM images can be made by this particular fool.

Legalities will differ depending on your locale but, in general, downloading ROM images for any system (regardless of age) is strictly not allowed by law. In fact, it may even be considered "software piracy" to make images of ROMs you legally own. This is why emulation sites shy away from showing you where or how to get ROMs for their software.

There are locales, however, where it is legal to create and download copyrighted material for personal, non-commercial use. Check with an expert about your local statutes on the subject.

The inverse is also true: there is no global, over-arching law that governs or specifically allows downloading ROM images, especially those that make special claims regarding some specific number of hours that intellectual property can be in your possession.

And even if downloading an image is legal where you are (or is not specifically illegal, as the case may be), it's not like a particularly litigious rightsholder won't try to pursue legal recourse if they think they have a case. (Perhaps an unlikely situation, but words are small comfort if your ISP is suddenly pressured to disconnect you.)

Of course, there are many sites that offer ROM images of games and system firmware for download. These sites are almost certainly breaking the law (or are in a legal grey area), though in many cases the rightsholders may not have any interest in pursuing legal interests. Such sites may also be operating out of countries where it is legal to offer such services, or the legal recourse for rightsholders are limited.

Finally, I would be remiss if I did not link to the Wikipedia article on the legal implications of abandonware.

Whether or not creating or downloading old or abandoned images is adhering to the spirit of the law is up to individuals.

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    it might be relevant to add in this answer that the '24 hour' limit which is sometimes refered to has no general legal significance. I think it fits best in your answer of the ones listed here so far. – Sean Houlihane Jun 7 '16 at 19:14
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    I dunno. It seems to me that we could list a bunch of things that are not actually legally true, either at all or in some jurisdiction, but none of them would add much value, and the list of legal misunderstandings about copyright is never complete. The crux of the matter is that my question cannot be answered fully in a general manner, which is why I've stuck to non-specific mealy mouthed weasel-words. – user12 Jun 7 '16 at 19:18
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    Sine IANAL I think it's totally fine to use ad hoc words as they are used when discussing the subject informally. I placed the word in scare quotes to make it clear I am referencing common understanding. – user12 Jun 7 '16 at 19:19
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    I should probably also point out that some ROM images are available legally for sale. An example would be the ROMs for a number of SNK NeoGeo link games which are available on the Humble Bundle store. They come packaged with an integrated emulation environment, but the bare DRM-free ROM files are included and can be used in any emulator of your choosing. – mnem Jun 7 '16 at 19:32
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    @jdv While there are certainly a lot of myths surrounding copyright, the "24-hour" myth is particularly common on ROM download sites. (As seen in Aaron's answer, for example, Nintendo specifically addresses it in their FAQ.) – duskwuff Jun 7 '16 at 20:38
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I think one reason that it is very prolific, is that JDV is right:

in many cases the rightsholders may not have any interest in pursuing legal interests.

And in the case of very old games and companies (that may not exist any longer) that is probably true. Nintendo however, has some very specific things to say about this on their corporate legal page:

Can I Download a Nintendo ROM from the Internet if I Already Own the Authentic Game?

There is a good deal of misinformation on the Internet regarding the backup/archival copy exception. It is not a "second copy" rule and is often mistakenly cited for the proposition that if you have one lawful copy of a copyrighted work, you are entitled to have a second copy of the copyrighted work even if that second copy is an infringing copy. The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet.

While other companies will vary in their willingness to pursue legal action, Nintendo's perspective on this topic seems to be pretty black-and-white. Further documentation on that page also indicates that sites which provide links to ROM download pages may also be breaking the law.

So it would seem that "No" it is not legal. And prosecution of which can hinge on two aspects:

  • Whether or not the company which published/distributed the game is still a legal entity.
  • How willing that company is to pursue legal action against those who download or make available images of retro game ROMs.

Edit: 20170214

I ran across this article "Is Downloading Retro Video Game ROMs Ever Legal?" on HowToGeek.com that was posted a couple of months after our discussion here. They talked to a law professor from the University of Arizona College of Law, and asked him some of these same questions. Makes for a good read, but the bottom line:

If one thing is clear, though, it’s this: if you don’t own a legal copy of a game, you don’t have any right to download it (yes, even if you delete it after 24 hours, or other such nonsense).

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    The only DMCA take-down I have ever received was from Nintendo. The result of a weekend experiment with Tor, where someone used my node to download a Japanese DS game. I had to comply even though I was in a jurisdiction not covered by the DMCA. The gotcha is that they don't threaten you. They threaten your ISP's ISP. – user12 Jun 7 '16 at 18:57
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    @jdv I'm not surprised. Nintendo doesn't seem to appreciate any innovation or enthusiasm around their products, except their own. Greg Costikyan once slammed Nintendo's practices while speaking at a game design convention, and even remarked about Satoru Iwata (former CEO of Nintendo) that "Iwata-san said he has the heart of a gamer, and my question is what poor bastard's chest did he carve it from?" – Aaron Jun 7 '16 at 19:07
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    I'd suggest that the source you're quoting is perhaps not free from bias on this subject. Of course Nintendo's corporate lawyers are going make strong assertions maximizing Nintendo's rights. That doesn't make them a true and accurate reflection of the law, however. That's something that must be tested in the courts, and the outcome will vary by jurisdiction. Case precedence within a particular jurisdiction would be a better source to look towards. – aroth Jun 8 '16 at 1:33
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    @aroth True. Also just because Nintendo says it's "law" doesn't make it so. But it does illustrate their zeal to pursue these instances to their fullest extent. – Aaron Jun 8 '16 at 1:35
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    It bears noting that even big N acknowledges that copying your copy personally is legal. They just choose to try to scare people away from that with their weasel wording and accusations of piracy. (at least last time I read that) – a25bedc5-3d09-41b8-82fb-ea6c353d75ae Jun 8 '16 at 5:06
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These ROM images are like all other software and are protected by copyright law. Most are commercial software that do not permit copying and distributing. Some copyright holders have allowed their games to be freely distributable, for example the Sega Mega Drive game, Zero Tolerance, and it's unfinished prototype sequel, Beyond Zero Tolerance. There are also homebrew games and demos with permissive licenses available for most every gaming console.

This question is, for example, why the Debian project was reluctant to include the at-the-time-recently-GPL'd ZSNES SNES emulator in its distribution. What good would a Free emulator be if there was little to no Free or even free software available to use with it?

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    Note that ROM images are sometimes old enough that it's worth checking for copyright statements: prior to 1989, works published in the US had to have their copyright registered; prior to 1978, they had to additionally carry an explicit copyright notice. It's quite possible that some Atari 2600 games are in the public domain for failure to comply with copyright formalities, and Roland famously forgot to copyright the ROM of their MT-32 MIDI synthesizer. – Mark Jun 8 '16 at 23:19
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A very limited number of rights holders have retrospectively relaxed the license conditions (or re-released) their intelectual property, making it legal in specific situations and for specific software. In these cases rights such as redistribution or commercial use will vary, and it can be hard to track down the precise detail as ownership often changes over time - just because the owner is not easy to identify, you can't assume there is no owner.

  • Would you include modern "homebrew" developers in this "very limited number of rights holders"? – Damian Yerrick Mar 12 '17 at 16:19
  • No. We're not talking about modern software here. Developers now are more aware of how to correctly license their code. I mean commercial software from indie developers who now chose to licence their work for free. – Sean Houlihane Mar 12 '17 at 16:30
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First to answer it: No, it's not legal. Others have already pointed out why.

As an addition I'd like to point out the usual consequences:

  • As for old software, in general ROMs are tolerated, actually even Nintendo doesn't care about, I think, GCN and older.
  • A ROM is less likely to be tolerated if it has been remastered, or re-released as is, on a up-to-date console. For example, now that the first Pokemon editions are available for Virtual Console, you should delete them from your PC.
  • If you, however, load an emulator on another game engine, e.g. the Wii GCN emulator Nintendont on your Wii or Wii U, your warranty might be voided because it's an unauthorized modification.
  • A modded ROM, i.e. a ROM with a substantial difference from all original games existing, is even more likely to be tolerated. As a few well-known examples, I'd like to mention Super Mario Star Road (modded SM64) and Kaizo Mario (modded SMW).
  • Or to sum a sizeable portion of this answer up: A ROM is more likely to be tolerated if the creator cannot lose potential money on the download (e.g., if the ROM is of a game that can't be purchased first-hand from the creator). – Justin Time Jul 9 at 19:16
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I can answer about Russia.

For criminal liability the damage to the copyright holder should be sufficient (100 000 rubles, somewhat less than $2000 currently). The copyright holder should prove damages which would be calculated from the retail price of the software. If he does not sell the same or similar software, it would be very difficult to prove damages.

For administrative liability (misdemeanor) the deed should be done by a legal entity (firm) of a state official and with intent of gaining income. So, this does not apply.

For civil liability, the holder also has to prove damage. In worst case the damage would not be greater than a price of a single copy. He can request confiscation of any copies though via court but only in the case you refuse to give up them on his request before the court case opened (pre-judical conflict resolution procedure is a must).

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No.

Most popular games from a retro platform's original commercial era are not legal to distribute through the Internet, not even if you buy a used game before downloading a second copy in parallel from a ROM site. A U.S. court held in UMG Recordings v. MP3.com that buying a genuine copy does not entitle you to download a second copy to your computer through the Internet. The ROM image must be made directly from genuine media.

The right way

Instead, try this:

  1. Install an emulator and some "ROMs where rightsholders have expressly provided distribution and non-commercial use of their intellectual property" to ensure the emulator works.
  2. Buy a dumper, such as Retrode or Kazzo.
  3. Buy a used game.
  4. Use the dumper to extract a ROM image to your computer.
  5. Run this ROM image in the emulator. Do not share it with others.

This way to solve your underlying problem is more likely to fit within your country's limits on the scope of exclusive rights in a copyrighted work. Though these limits vary from one country to another, I'll use the United States as an example, as both I and Stack Exchange Inc. are based in that country. The U.S. copyright statute (Title 17, United States Code) sets forth several limits in chapter 1, particularly "first sale" and "essential step".

  • First sale (17 USC 109) allows the owner of a lawfully made copy to resell that copy to someone else. (A "copy" is a physical object on which a work is recorded.) This allows someone to sell used Atari 2600 cartridges to you.
  • Essential step (17 USC 117) allows the owner of a copy to make additional private copies "as an essential step in the utilization of the computer program in conjunction with a machine". This allows you to plug these cartridges into a dumper and produce ROM images for use in your computer.
  • Citing U.S. laws doesn't make a lot of sense on an international site. Even copying a ROM you legally own might be illegal in other countries. – tofro Mar 12 '17 at 18:03
  • @tofro Stack Exchange Inc. is headquartered in the United States. I understand that this site serves users of other countries, but I assumed that after the copyright harmonization of TRIPS and other treaties, said other countries had their own counterparts to first sale and essential step. If you desire the use of a second country's copyright statute as an additional example, which country should I use? – Damian Yerrick Mar 12 '17 at 18:09
  • StackExchange aims to have general answers valid for general questions. That probably means: All countries? – tofro Mar 12 '17 at 18:24
  • @tofro The current revision of my answer acknowledges differences among national copyright statutes and case law: "more likely to fit within your country's limits". Outliers will always exist. Is retrocomputing legal at all in, say, the Democratic People's Republic of Korea? Does, say, Somalia have a copyright law at all? – Damian Yerrick Mar 12 '17 at 18:31
  • @tofro To put it another way, should Law Stack Exchange be closed because not every answer can cover every jurisdiction? – Damian Yerrick Mar 12 '17 at 18:38

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