Disclaimer: As stated in part 1, downloading ROM files of games that you don’t own is illegal, and neither Orange Bison nor anybody affiliated with the website will be held responsible.
In this article, I talk about my own research into the laws governing trademark and copyright issues in the UK. However, I am not a legal expert, and the article is not intended to be used as an in-depth reference guide on copyright law. It’s your fault if you get sued, not ours!
ROM sites have been a fixture of the internet for many years now, and whilst their legality has been questionable at best, they’ve mostly been left alone by the big games companies. As long as they only provide older games and not the latest blockbusters, the majority of sites have been allowed to exist with minimal opposition. However, on July 19th, 2018, all that changed.
That day, Nintendo successfully sued Mathias Designs LLC, the company behind the sites LoveROMS and LoveRETRO, and its owner, Jacob Mathias, for a total of $100 million. It’s probably safe to assume that Mathias doesn’t carry that kind of cash around and, as a result, both websites have now shut down. This has obviously been a bit of a blow not just to Mathias, but to others hosting similar sites. A few days after the results of the lawsuit became public Emuparadise, a site with an 18-year history and one of the biggest ROM archives on the internet, took the precautionary measure of removing every single ROM from their site. It’s likely that other sites, fearing the wrath of Nintendo and the inevitable flood of litigation from other companies, will follow suit. Nintendo has always taken a very firm stance against their games being downloaded from unofficial sites, as can be seen in the Trademarks section of their corporate website. Obviously the Big N are well within their rights to protect their intellectual properties, and yes – these sites were technically hosting Ninty’s games illegally – but it all seems pretty hypocritical when you consider the following; allegedly, Nintendo has been selling ROMS of their own games that have been downloaded from illegal hosting sites for quite some time.
On January 19th, 2017, Eurogamer posted a video to their YouTube channel claiming that Wii Virtual Console version of Super Mario Brothers is actually a ROM file that has been circulating on the internet for a number of years. When opened using a HEX editor (a piece of software that allows the user to view the code of a game and make changes) the ROM was found to contain a piece of code called an iNES header. iNES was one of the first unofficial NES emulators, created in the heady days of 1996 by a brilliant young man named Marat Fayzullin. The way NES games are designed caused him a few headaches (check out the original video for a more thorough explanation). To get around these problems, he created a new file format called ‘.nes’, which always includes the aforementioned line of code. The Eurogamer report also states that as well as the presence of the iNES header, the contents of the ROM is identical to a previous build of the ROM that was found online, and predates the Virtual Console. Nintendo’s official statement is that the emulator used by VC games was created internally and that they have never used ROM files acquired from the internet, despite the presence of Fayzullin’s digital fingerprint in the game code. Yeah… sure…
So let’s look into the actual legality of ROMs a little further shall we? I’m sure you’re already aware that downloading a ROM for a game not already in your physical collection is most definitely illegal and you’re very naughty for doing so (come on, you might as well admit that you’re a dirty criminal!). Where the legal waters become a little murky though is whether it is illegal to download a ROM for a game you already own. This is tricky, as despite my research, and Nintendo’s claim that it is outright:
“illegal to download and play a Nintendo ROM from the Internet”,
I couldn’t find any legal precedent. In other words, there is absolutely no documented evidence (that I was able to find) of any such case going to trial. It is one of the few areas of ROM legality that can be truly described as a ‘grey area’. It’s also worth bearing in mind that one game may have several ROM variants, and unless you can pinpoint the specific file for your specific copy of the game, you may still be breaking the law.
Ripping the ROM from a cartridge that you legally own is a little more straightforward, at least for those of us based in the UK. Section 50A of The Copyright, Designs and Patents Act 1988 suggests that:
“It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use”. This suggests that it is okay to use the ROM file as a backup, but it’s not okay to share it with your mates or strangers on the internet. ROMs and other computer programs are also expressly excluded from the private use provisions of the act.
So, there you have it! ROMs aren’t as much of a ‘legal grey area’ as some sites would have you believe, but in certain cases they’re not necessarily as illegal as Nintendo would have you believe either. It all depends on how you acquire them and how you use them. One thing that is pretty clear though is that Ninty isn’t exactly the wholesome, family, friendly company they pretend to be.
I mean seriously… this is a company that used to own a chain of “love” hotels…