Retro games emulators: the legal position

Defining a video game emulator is easy enough: it’s a bit of software that enables modern hardware to play games designed for other, often now extinct, games console hardware. Why would you want to do this? That’s equally simple to explain: many games from the eighties have gone down in entertainment history as classic, yet are denied to modern players without access to original and now defunct games consoles.

To make matters worse, more often than not the developers and publishers of these games have long since either gone out of business or given up any interest in porting or maintaining the software. Consequently, the generic term for such games is “abandonware”. While the emulators themselves are OK, the legal position is less clear when it comes to the games that they can play.

An emulator, not being the original hardware, cannot take a cartridge and somehow play it. What happens, then, is that an emulator will play the read only memory (ROM) instructions that were originally burned on the chip inside that cartridge. It is the downloading and use of these game ROMs that muddies the legal waters.

Game software, like any other, is protected by copyright law and so using a game you have not purchased is illegal. Unless that game ROM is in the public domain, of course, and some abandonware sits in this category thanks to the kindness of the original developer or publishers (Amstrad, for example, supports emulation in this way). Some users have created games that are close to the original but use altered code: these ROMs would also appear to be legal to use until and unless the original publisher takes action against the creator for potential IP infringements.

There have, in the past, been some legal moves against sites distributing ROMs, most notably from Nintendo and Sony, but on the whole it would seem that they have little real interest in the retro emulation genre. Nintendo is an interesting example, as it has made playing games from its retro consoles possible using the Virtual Console built into the Wii, so they cannot be classified as abandonware and this is the route you should really take if you want to play them.

While we know of no users who have even been contacted by publishers regarding the use of downloaded abandonware games ROMs, if you want to be 100% sure of staying on the right side of the law then only use online sites that can demonstrate that they have licensed the games in question, or stick to those ROMs firmly in the public domain.