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“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. “On the one hand, there’s no amount of money that will let me get a legal copy of this game,” said Bambauer. That argument might not be airtight, according to Bambauer. After all: there can’t be market harm if a game is not currently for sale in digital form. Many people argue online that if a game isn’t currently available on the market, downloading a ROM is legal. What If a Game Isn’t Currently On the Market?
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“Then it is market harm, because Nintendo should be able to sell to those people.”īecause 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.
“Once you’re distributing a ROM, most of the people downloading it probably don’t have legal copies of the game,” said Bambauer. For ROMs it largely works the same way, which is why sites that share games are so frequently shut down. The RIAA and MPAA have found more luck going after the sites and people sharing music, rather than the downloaders. 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.Ĭonsider the entertainment industry. “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 “I think if the argument is, if I were a skilled engineer, I could extract this and have a copy,” said Bambauer. But he doesn’t think the two situations are all that distinct, legally speaking. Now, Bambauer could imagine constructing an argument about how one is different than the other, and he admits the optics are different. 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.”
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What If You Rip Your Own ROMs?Ī 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. “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.īut, 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. And Bambauer is quick to admit it’s not a perfect one. Now, this isn’t black and white just a potential legal argument. “The argument would be there’s no market harm here that it’s not substituting for a purchase.” “You’re not giving the game to anybody else, you’re just playing a game you already own on your phone,” said Bambauer. 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. “Fair use is a fuzzy standard, not a rule,” Bambauer explained. Then, according to Bambauer, you might be covered by fair use. 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.īut is there a legal defense? Possibly, if you already own a Super Mario World cartridge.
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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. To begin: downloading a copy of a game you don’t own is not legal. The Possible Exception for ROMs: Fair Use But even ROMs exist in a bit of a grey area, according to Bambauer.
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