Video game emulators are at a bit of a weird place, legally. The software itself is legal thanks to the fair use doctrine. While emulators use copyrighted material, they do it in a way that makes it legal. For these reasons, they are considered fair use:
On the other hand, ROMs aren’t so legal. The one case in which they aren’t illegal is if you were to get a ROM from a game you bought and own. But the majority of people who emulate retro games don’t do it this way.2 People get them from emulation sites that will often host hundreds of video game ROMs for download. This is a form of piracy, of course.4 But oftentimes, these ROM sites are the only places to find certain games.
What makes ROMs illegal? Copyright. Copyright law is meant to protect an author’s or publisher’s ability to sell and distribute the works they create.5 So things like distributing pirated ROMs online for free would of course violate copyright. As stated above, this is the only way to actually play most retro games. For some of the most popular retro games, they may get re-released or put in bundles.6 Nintendo includes a selection of games from their own consoles with their Nintendo Online subscription.7 But the large majority don’t get this treatment, and they count as what’s called abandonware.6
But even if these games are “abandoned”, the copyright persists for a long, long time. Depending on how it was created, it can last anywhere from 95 years to upwards of 150 years!8 Now this makes sense for something like a book, which is what copyright laws were originally made for. But video games and consoles don’t stay in functional condition for nearly as long.6 We believe that a shorter period of copyright for video games would be more suitable for the industry. This protects the games currently being sold, but allows for legal use, preservation, and distribution of retro games that may otherwise be lost to time.
If you want the laws surrounding video game copyright to change, reach out to your senator or representative today