ROMs and emulation have existed for decades, and with the advent of the internet, their proliferation exploded. There is an extensive community that has blossomed around emulation, particularly when it comes to emulating classic consoles that are not in production anymore. There are many games for classic consoles like the SNES, Nintendo GameCube, and so on, that has not been re-released on modern consoles, so people have found a way to make it work themselves.
This is particularly the case for obscure cult classics or games which had a limited production run. People who did not buy these games when they came out and want to play them without resorting to emulation may be in for a bit of a shock. As an example, FIRE EMBLEM: PATH OF RADIANCE was released for the Nintendo GameCube as recently as 2005.
However, because it belongs to a niche genre and did not sell very well thanks to poor marketing, it is very rare and expensive to acquire a physical copy these days. Even a used copy will run you over $200 on Amazon, while a new copy will be at least $300. This is on top of the money you will have to spend on a GameCube or Wii (thank god for backward compatibility!) if you do not already own one.
I love FIRE EMBLEM, but not that much!
ROMs Offer Another Way
Emulation and ROMS, however, offer an alternative. They allow people to experience these great classic games without having to break the bank. So long as your computer is powerful enough (which is only really a problem for newer consoles like the GameCube, anyway), there’s nothing stopping you from emulating rare, expensive games like PATH OF RADIANCE (as seen in the video above) to your heart’s content. Emulation opens up an almost limitless library of classic games. Games that may be hard or expensive to find physical copies of can usually have their ROMs found online relatively easily.
There’s just one problem. The legality of ROMs and emulation is, at best, dubious.
However, before going further it is imperative to identify what ROMs and emulators actually are. The software that is used to mimic the consoles is referred to as an emulator. For an example, Dolphin Emulator is a GameCube and Wii emulator. All this software does is pretend to be an actual console; it attempts to simulate, say, a GameCube, so that games for the console will think they’re running on an actual console, rather than software on a PC.
How successful it is at this varies. Without the actual console hardware, you will never be able to be 100% accurate for every single game. But it is generally possible to finagle things enough that most games are at least playable, provided that your PC’s hardware is up to the task.
Nintendo On A Warpath
ROMs and emulation have always been both a legal and moral grey area. However, the recent actions of Nintendo have reignited the debate on the issue in a big way. Last month, Nintendo sued two of the biggest websites for downloading ROMS: LoveROMS.com and LoveRETRO.co. Both websites are now offline, returning only the blank notice seen above.
This has sent massive shockwaves throughout the ROM and emulation community. Last week, perhaps to pre-empt similar legal action against them, Emuparadise, another giant in the ROM community which has been active for nearly two decades, announced that its gigantic library of ROMs and ISOs was going in the bin. But wait, there’s more! Just in the past few days, yet another major emulation website, TheISOZone, announced that it too would close its doors.
It is unknown what prompted Nintendo to do this all of a sudden. What is certain, however, is that the landscape for the ROM and emulation community is never going to be same.
The Legal Question
It is common to describe ROMs and emulation as a grey area legally. But what does the law actually say?
First of all, emulators in and of themselves are not illegal. There is nothing in the law that says that this software is illegal per se. That is why the developers of emulators such as Dolphin are still in business and do not need to worry about threats of legal action.
ROMs, however, are another story.
ROMs Are Always Illegal
Unauthorized copying and distribution of ROMs (or the game files themselves) for use with emulators is illegal. Under United States law, downloading, copying, and distributing copyrighted ROMs is always illegal. The waters are muddied by many annoyingly persistent myths, such as the belief that downloading a ROM is legal if you already own the game legally, or the belief that it is legal provided you delete it after 24 hours. These are false.
This is why the developers of emulators typically do not provide ways of getting ROMs themselves, even though their product is basically useless without them. The emulator developers are safe from legal liability provided that they don’t provide any means of acquiring illegal ROMs; if the end user finds such ROMs on their own, that’s not on the developers.
When Nintendo is going after these hubs for ROMs, they are acting within their rights under copyright law. One can assume that the reason ROM sites such as Emuparadise have pre-emptively shut down despite not being threatened by Nintendo (yet) is that they realize that the courts would all but certainly side with the Big N.
The Moral Question
Legally, the answer is clear: downloading ROMs is illegal. But what about ethically? Even if downloading ROMs is illegal, is it ever justified to do it?
I would argue that there are situations where downloading and emulating ROMs is justifiable ethically, though not legally. This is not to say that I endorse piracy; I do believe that one should support the creators of the content they enjoy. But sometimes, it is very difficult, if not impossible, to reasonably support the original developers.
Buying Secondhand Does Not Support The Creators
This is particularly the case with older, classic games which are not in production anymore. In many cases, the only way to play these games legally without resorting to ROMs is to buy them secondhand. I gave the example of FIRE EMBLEM: PATH OF RADIANCE at the beginning of this article. The game is not even that old, being released in 2005, and yet acquiring it legally costs you hundreds of dollars.
The worst part? Not one cent of that will go to the original creators. The only people making money off it today are secondhand sellers because the game is not in production anymore. There is no way to legally acquire the game that both supports the original developers and also is not hideously expensive. And this will remain the case unless the game is re-released on modern platforms by Nintendo.
FIRE EMBLEM: PATH OF RADIANCE is not an isolated incident. There many old, classic games that exist in this kind of limbo. Another infamous case is EARTHBOUND for the SNES. In these cases, I believe that ethically it is justifiable to download these ROMs. If the original publisher has not made these games easily and legally available, they are not really losing any money regardless of whether you download a ROM or buy secondhand. If they want to stop people from downloading these ROMs, they should make the games available easily, affordably, and legally!
The ONLY Option
In some cases, emulating a ROM may be the only way one can reasonably play a game at all. In particular, this problem afflicts many Japanese games which never saw the light of day outside Japan. One of my favorite games is FIRE EMBLEM: GENEALOGY OF THE HOLY WAR, released for the SNES in 1996. Alas, Western shores have never had the game released here in any capacity. If you are a FIRE EMBLEM junkie, like me, and want to play one of the finest entries in the series for yourself, you have two options.
To Import Or Not To Import?
Option 1 is to import. To do this, you will have to import not only a Japanese game cartridge but also a Japanese Super Famicom system; North American SNES consoles are not compatible with Japanese cartridges. This can get very expensive very fast. If you get that far, you will run into yet another problem: this is a Japanese game, and thus is in Japanese, a language that the vast majority of Westerners (including myself) do not speak. Learning a new, difficult language just to play a video game is kind of a tall order.
Which leads us to option 2, which is emulation. Emulation is not only far cheaper and less cumbersome than importing a Japanese system and cartridge, it also allows us to do something that cannot be done with a physical copy of the game: play it in English! As seen in the screenshot above, by patching a Japanese ROM with a fanmade translation patch, it is possible to play Japanese games in a language that you can understand. This is the only way I can play this game in English.
Perhaps the most famous example of this is with MOTHER 3. Released for the Game Boy Advance in 2006 as a sequel to the cult classic EARTHBOUND, the game has never been released outside Japan, and likely never will be. Nintendo is thus not losing any sales by Westerners downloading a copy of the game to play in English; they never sold it to them, to begin with.
In these cases, I would argue that it is ethical to download ROMS of these games, despite the illegality of doing so.
Ball’s In Nintendo’s Court
Now, I can only speak for myself. But were Nintendo to release games such as FIRE EMBLEM: GENEALOGY OF THE HOLY WAR and MOTHER 3 in English officially, whether on the Switch or another modern console, I would throw money at them in a heartbeat. If I were given the option to play these great classic games in a language I understand, without having to spend an arm and a leg or engage in emulation of dubious legality, I would take it. I would love to be able to support the creators of some of my favorite classic games. Nintendo just has to give me the opportunity to do so!
I doubt I am alone in this regard. While we will always have the dedicated pirates who will never pay for content, such people were likely never interested in buying your games, anyway. But for gamers such as myself who would love to be able to actually play the games in an official, convenient way, and also support the creators, that is a huge potential pile of cash for Nintendo (and others) to exploit. I honestly do not understand why they are dragging their feet and not diving into their treasure trove of a library. It is a veritable goldmine of what is, essentially, free money for them.
But until they get their act together, I shall have to stick to emulators for the time being. I can only hope that the day when emulators become unnecessary for playing my favorite classic games comes sooner rather than later.