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Is Downloading Free Games Illegal

There’s nothing quite like reliving your childhood with your favorite retro games, but are emulators and ROMs legal? The internet will give you a lot of answers, but we talked to a lawyer to get a more definitive answer.

Emulators are legal to download and use, however, sharing copyrighted ROMs online is illegal. There is no legal precedent for ripping and downloading ROMs for games you own, though an argument could be made for fair use.

To find out, we asked Derek E. Bambauer, who teaches Internet law and intellectual property at the University of Arizona’s College of Law. Unfortunately, we discovered that no definitive answer truly exists, since these arguments have yet to be tested in court. But we can at least bust some myths that are floating around out there. Here’s what you need to know about the legality of emulators and ROMs in the United States.

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Emulators Are Almost Certainly Legal

Let’s start with the easy stuff. Despite what you may have heard, there’s not a lot of question as to whether emulators themselves are legal. An emulator is just a piece of software meant to emulate a game system—but most don’t contain any proprietary code. (There are exceptions, of course, such as the BIOS files that are required by certain emulators to play games.)

But emulators aren’t useful without game files—or ROMs—and ROMs are almost always an unauthorized copy of of a video game that’s protected by copyright. In the United States, copyright protects works for 75 years, meaning no major console titles will be public domain for decades.

But even ROMs exist in a bit of a grey area, according to Bambauer.

The Possible Exception for ROMs: Fair Use

To begin: downloading a copy of a game you don’t own is not legal. It’s no different from downloading a movie or TV show that you don’t own. “Let’s assume I have an old Super Nintendo, and I love Super Mario World, so I download a ROM and play it,” said Bambauer. “That’s a violation of copyright.”

That’s fairly clear cut, right? And it more or less aligns with the language regarding ROMs on Nintendo’s website, where the company argues that downloading any ROM, whether you own the game or not, is illegal.

But is there a legal defense? Possibly, if you already own a Super Mario World cartridge. Then, according to Bambauer, you might be covered by fair use.

“Fair use is a fuzzy standard, not a rule,” Bambauer explained. He says he could imagine a few possible defensible scenarios. “If I own a copy of Super Mario World, I can play it whenever I want,” he notes, “but what I’d really like to do is play it on my phone or my laptop.” In this case, downloading a ROM could be legally defensible.

“You’re not giving the game to anybody else, you’re just playing a game you already own on your phone,” said Bambauer. “The argument would be there’s no market harm here; that it’s not substituting for a purchase.”

Now, this isn’t black and white; just a potential legal argument. And Bambauer is quick to admit it’s not a perfect one.

“This is by no means a slam dunk argument,” said Bambauer, “But it’s by no means a silly one.” After all, Nintendo could argue that by emulating the game on your phone, instead of buying their official port of a game, they’re losing money.

But, while there is no precedent specific to gaming, there is in other markets. “In the music industry, everyone accepts that space shifting is legal,” Bambauer notes. You can see where this gets complicated.

What If You Rip Your Own ROMs?

A common argument online is that extracting a ROM from a cartridge you own is perfectly legal, but downloading ROMs from the web is a crime. Devices like the $60 Retrode let anyone extract a Super Nintendo or Sega Genesis game over USB, and state their legality over downloads as a key selling point. After all, ripping a CD you own with iTunes or other software is broadly considered legal, at least in the United States.

So is ripping a ROM you own any different than downloading one? Probably not, says Bambauer: “In both cases what you’re doing is creating an additional copy.”

Now, Bambauer could imagine constructing an argument about how one is different than the other, and he admits the optics are different. But he doesn’t think the two situations are all that distinct, legally speaking.

“I think if the argument is, if I were a skilled engineer, I could extract this and have a copy,” said Bambauer. “If we assume, for a moment, that if I did that it would be fair use, then it shouldn’t be different.”

Sharing ROMs Is Unambiguously Illegal

This fair use argument is potentially very wide reaching, but there are limits. “The trouble comes when it’s no longer just me having a copy, it’s giving other people a copy,” said Bambauer.

Consider the entertainment industry. The RIAA and MPAA have found more luck going after the sites and people sharing music, rather than the downloaders. For ROMs it largely works the same way, which is why sites that share games are so frequently shut down.

“Once you’re distributing a ROM, most of the people downloading it probably don’t have legal copies of the game,” said Bambauer. “Then it is market harm, because Nintendo should be able to sell to those people.”

Because of this, it might be a good idea, even if you own a game, to avoid downloading ROMs from peer-to-peer networks, where you’re sharing a copy of the game as you download it.

What If a Game Isn’t Currently On the Market?

Many people argue online that if a game isn’t currently available on the market, downloading a ROM is legal. After all: there can’t be market harm if a game is not currently for sale in digital form.

That argument might not be airtight, according to Bambauer.

“On the one hand, there’s no amount of money that will let me get a legal copy of this game,” said Bambauer. “On the other side of the argument, there’s what Disney does.” Disney’s strategy is to put classic movies “in the vault” for extended periods. Instead of leaving films constantly on the market, they periodically re-release them, which builds up demand and increases sales when that release actually comes.

Video game companies could argue they’re doing the same thing with currently unreleased games, and that ROMs are driving down the potential market value. “It’s a close case,” says Bambauer, “and hasn’t been tested a lot.” But they could make that argument.

At the same time, he notes, a game not currently being on the market could potentially be a useful part of a defense, particularly if you’re downloading a game you already own.

Game Music

“I couldn’t buy a copy anyway, and I already own a copy,” said Bambauer, again hypothetically. “So it’s kind of like owning a CD, and ripping it on my own.”

All of This Is Mostly Hypothetical

You’re probably starting to see a pattern here. ROMs are such a grey area because there are potential legal defenses on both sides—but no one’s truly tested these arguments before. Bambauer couldn’t point to any case law specifically about video game ROMs, and was mostly just extrapolating from other areas of Internet copyright law.

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).

Why Is Downloading Music Illegal

Image credit: LazyThumbs, Fjölnir Ásgeirsson, Hades2k, Zach Zupancic, wisekris

So What Is Legal and What Is Illegal?

The short answer: as long as the item is copyrighted and you don’t own it, then downloading it (for free) via torrent is illegal. Using a torrent client and downloading torrents in itself isn’t illegal, as you could be downloading things that aren’t protected by copyright.

The long answer: This varies from case to case. Most countries have basic common laws against intellectual property theft. If a piece of music is copyrighted and you don’t own it, you can’t download it legally. The same goes for a movie, a game, or anything else you may want (unless the copyright-holder decides to make it free either temporarily or permanently, as is often the case with video games). The line gets kind of fuzzy here, since people ask themselves many different questions about their own country’s laws.

In general, a copyright is registered to an individual or organization that creates something. This copyright has a time limit, usually equivalent to the lifetime of the creator and a set amount of additional years. Some copyrights are for life plus fifty years. Others are for life plus seventy years. Look up your country in the previous link if you’re unsure of your laws. Of course, your mileage may vary, as some things may not be protected by the law where you live, or copyright law may not be enforced at all.

So if you’re downloading a free Linux distribution through your torrent client, you don’t need to worry. But if you’re getting John Lennon’s “Imagine” from The Pirate Bay, you’re doing something that in all likelihood is breaking a law.

Related: How to Download Torrents onto Your iOS Device Without Jailbreaking

Torrent Privacy

Whatever it is you’re doing is not any of my business. But it is my business to make sure you know just how “anonymous” you are in the torrent network. The short answer is: you totally aren’t!

It’s handy to have a basic knowledge of how the torrent protocol works. Theoretically you should have some level of privacy since you’re not downloading any data from one particular server (in contrast to downloading something from a central server like you’d find on Microsoft’s website, where they’ll know exactly who it is that’s downloading their products).

But through the torrent system you download directions to a file. That means that the torrent file is actually just a list of trackers and some hash codes. It doesn’t really prove that you downloaded the torrent file. What you do inside your torrent client is more important, and that’s all managed by a decentralized list of servers. Once you start the download of the actual file you want to get to, you end up downloading little pieces of the file from a bunch of people.

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Can You Get Caught?

Government agents and copyright trolls tend to snoop around the Torrent networks, and some of the more popular sites hosting Torrent files, downloading files and listing all the IP addresses they find under the Peers (downloaders) and Seeders (uploaders) lists. This will, of course, compromise your address eventually.

The actual number of people who get caught is miniscule, but if you want to secure yourself and don’t care much to contribute to the Torrent community, then you can disable seeding which stops your PC uploading files to the torrent network. Avid torrenters would call this selfish, and maybe they’re right, but you’re also covering yourself.

Another good option is to use a proxy or VPN, then set your torrent client to connect to peers through that. This essentially makes you anonymous by routing your connection through a different IP address.

Then there’s the onion routing network (Tor) that you can configure as a proxy for your torrent client. However, since the Snowden revelations it’s become known that even Tor has been targeted by the NSA and GCHQ for illegal activity. While the network is mostly secure, there have been incidents of these spy bodies attacking individual computers, so it’s not as anonymous as it once was.

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Conclusion

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Rest assured that torrenting does not equate to piracy. It does, however, provide a very convenient way to do it! The torrent protocol is just a clever transmission method for users to download files more easily. If you’re worried that you may be downloading something that’s against the laws in your country, ask below.

This article was first published in Jun 2013 and was updated in Nov 2017.

Is Downloading Free Games Illegal

Image credit: Pirate Bay main page