Emulation is my jam: I’ve been gaming since the 1980s and have seen emulation go from niche hobby to everyman accessibility. The question “are emulators legal?” is constantly being asked and the answer is sort of complicated in a technical sense because the legality of emulation itself differs from what you run on it. What any of this stuff actually means is that you have to understand what emulation really is from a technical standpoint and what the copyright law says.
The brief answer that potentially causes trouble is “emulators are legal.” That’s true but incomplete. %Emulators are computer programs which emulates the behavior of an actual hardware. They can be made, distributed and used legally. The Nintendo 64 emulator is simply code that replicates the behavior of N64 hardware. That code itself isn’t illegal. Emulation software has been held legal by multiple courts. But the full answer is that the legality of the emulator and the legality of what you play on it are (obviously) two different issues.
What Emulation Actually Is
Emulation is a software representation of functionality of the hardware. When you start up an N64 emulator, you’re running code that is pretending to be the N64 hardware. The software converts code written to run on N64 microprocessors into code that your modern computer can handle. Technologically it’s sophisticated, but conceptually very straightforward – it’s translation of one instruction set to another.
Developing an emulator necessarily involves reverse-engineering the official device. You’ve got to know a lot about the way the processor works, how the graphics chip works, how the sound chip works and memory addressing. And you have to document all these systems and write code to recreate them. This is legal. Most[peacock term] jurisdictions have ruled that reverse engineering for compatibility is covered by copyright, and not in fact a violation of any “Right to Code”. Software that exposes existing hardware is OK.
The emulation scene has spent decades perfecting emulators. The best N64 emulators are still seeing development and are offering visual quality that can compare or even exceed the games on the original console. You’re able to play N64 games in 4K resolution with anti-aliasing and better draw distance. The updates technically are feasible because today’s hardware is capable of emulating the past and improving upon it.
The Legality Question: Emulators Themselves
Emulator software is legal. Courts have established this repeatedly. The seminal case is Sony v. Connectix, in which Sony sued a company, Connectix, for producing a PlayStation emulator. The court decided that emulation software is legal, so long as it doesn’t include copy-code from the original hardware that is copyrighted. Connectix created a “clean-room implementation” of the PlayStation without using Sony’s code. They won the case. As the precedent shows, emulation software is already legal.
This is made slightly more complicated by the Digital Millennium Copyright Act (DMCA). The DMCA makes it illegal to crack copy protections. A few people are arguing that emulation is getting around copy protection. But in general, courts have held that emulation does not break the DMCA since you’re not breaking any protection: It’s still software that happens to work with protected media. The legal terrain has grown clearer with time. Emulation is legal.
Nintendo has made a policy of fighting emulators in court through its legal department, but it’s never won a judgement against anyone who built an emulator. They have sued websites that host ROMs and sued companies that sell emulators with preloaded games, but they haven’t won cases against the people who make the emulators. The law is on the side of emulation.
That technicality is important because it opens the door to legally downloading and using emulator software. You’re actually allowed to build your own emulator. You can actually commercially sell an emulator (although Nintendo will probably sue you). Emulation itself is protected.
The Legal Issue: Games On Emulators
But this is where it all gets messy from a legal point of view – the legality of what you are running on the emulator is another question. Games are copyrighted. Publishers own the copyright. It is copyright infringement to play any copyrighted game without permission of the author or only if you do not own a license. That’s distinct from the legality of the emulator.
Dumping original cartridges or discs that you own to ROM files for your personal use, however, is a fairly gray area. Technically, the law forbids copying copyrighted material even if just for personal use. However, there’s a fair use argument – you own the game, and you’re making a personal backup. There’s been a degree of sympathy for this argument in courts with regard to personal backups, but they have yet to formally declare it legal. It’s the sort of politically indefinite thing that would be safer to suppose as technically illegal but effectively unprosecuted.
That’s obviously copyright infringement if you’re downloading ROM files from the internet. Those ROM files were created by someone who copied a copyrighted game. Distributing them is infringement. Downloading them is infringement. You’re taking possession of stolen property, electronic or not.
The line between emulation and ROM distribution is important legally. Nintendo can’t actually win court cases against the emulator developers because emulation is legal. But Nintendo sues ROM distribution sites all the time — because it’s illegal to distribute a game that is under copyright. The DMCA takedown notices that ROM sites get aren’t about emulation — they’re about copyright violation.
The Practical Reality
In any case, it is a legal requirement to play games you own. You can dump your own cartridges to ROMs. Those ROM files can be played in emulators. This is legally defensible in a technical sense even if the law of copyright is technically against you.
But in practice, the actual games that most emulator players are playing are games they don’t own. They’re downloading ROM files of games they’ve never bought. This is copyright infringement. It’s also seldom prosecuted against individual players. Nintendo targets ROM distribution sites, not individuals playing games on their home computers.
Unless you’re making copies of the games themselves, it’s unlikely that there is much risk when it comes to the legality of playing those emulated games that you don’t have in your possession. You can be sued for downloading ROMs, but it’s unlikely. Nintendo has more important things to do than sue a bunch of people. They concentrate on sites serving up thousands of games.
The moral question is distinct from the legal one. As much as you’re willing to believe that Nintendo won’t sue for playing an emulated game, you are still using someone else’s copyright without their permission or paying for it. Whether or not that concerns you is your own personal ethics. There are those who feel abandonware should be free. Some people think creators should get paid no matter what. There is no objectively right answer in that dichotomy — they are value judgments.
The Modern Legal Landscape
Nintendo’s Virtual Console and Nintendo Switch Online are their lawful response to emulation. They want to sell games legitimately. If it’s old-school stuff you’re looking for, the legal way is the best. You are paying for the game and the company is generating revenue.
This has created shades of gray in the emulation argument. The games are now officially available via Nintendo Switch Online. You can play N64 games, NES games, SNES games and Genesis games using their paid subscriptions. The excuse that games are “unavailable” no longer flies in the case of many titles. Classic games are now available legally through Nintendo.
That being said, not every game can be found through the official services. Some games are still essentially locked out unless you buy original carts. Those games occupy a legal gray area. Nintendo might be able to sue you for playing them on an emulator, but it likely won’t bother because the sale of the games isn’t making Nintendo money in any event.
The emulation scene has been sort of reformed and democratised. A number of emulator projects, such as Dolphin (GameCube/Wii), are open-source and well-documented. It’s easier to prove that since transparency verifies the code isn’t copied from private sources.
What You Should Actually Know
Emulator software is legal. You can download and play emulators with no repercussions. Creating emulators is legal. The legality of what you play through emulators depends on whether you own the games or have permission to play them.
Emulating games you own is legal and quite safe. Reproducing your own cartridges into ROM files is copyright infringement technically, but minted for all practical purposes if you are only using them yourself.
It is against the law to play roms of games you do not own. It is almost never enforced against individual players, but technically the law could be applied to prosecutors. There really is no real risk but the legal risk.
It’s legally dubious, but morally clear. You can financially support creators by purchasing official releases and, then, say, emulating them if there are games that aren’t easily available. You’re allowed to think abandonware ought to be free and still understand the law.
If you want to be legally safe, purchase games from official means when available. If you already own the original cartridges, emulation is a completely legal way to play them without subjecting your originals to wear and tear. If you want to play titles for which official versions didn’t exist, from a copyright perspective you’re technically breaking the law but it’s virtually unheard of that anyone gets prosecuted.
The fact of the matter is that the majority of people using emulation are playing games they never paid for, in full awareness that it’s illegal under copyright law and counting on Nintendo not suing them to oblivion. That’s a value judgment of ethics and risk tolerance. Just know what the real legal situation is before making that decision.
The emulation community is alive and well largely due to the fact that the legal and real-world ramifications are negligible. But that doesn’t make it legal — it just makes it enforced infrequently. It’s one thing for something to be legal, and another for it to go unprosecuted.
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