Legality of ROMs

Discussion in 'General Gaming Discussion' started by vegemikee, Jul 2, 2011.

  1. vegemikee

    vegemikee GBAtemp Fan

    Aug 17, 2008
    I'm thinking of doing some YouTube commentary with some of my old favourites, but unfortunately I don't have the games on cartridge anymore.
    Is there a legal 'grey area' that allows me to hold the files for a certain amount of time before it is deemed illegal? I remember reading somewhere that you are allowed to hold a backup of a game for 24 hours. After that, it needs to be destroyed/deleted/whatever. Not exactly sure if this is true, however that's more than enough time for me to whip up some content and whatnot.
    If it helps, I'm from Australia and I'm not exactly sure how the legal system differs between countries in relation to video games, emulation and backups.

    All input is greatly appreciated

    EDIT: Well, I gave it a shot anyway, so if anyone is interested, you can check out my videos on my channel.
  2. TheDreamLord

    TheDreamLord GBAtemp Advanced Fan

    Jun 8, 2011
    That was probably in a rom bundle. No its still illegal just to own them for 10 minutes although bunches of lawsuits w ouldnt come after you bt still illegal
  3. Ikki

    Ikki GBATemp's grumpy panda.

    Jun 1, 2010
    It's illegal to download them at all.

    But no one will say anything to you. So, if you're okay with it, just do it, no one will notice.
  4. vegemikee

    vegemikee GBAtemp Fan

    Aug 17, 2008
    I want to make sure that whatever I plan to do is safe.
    I don't want a bunch of arsehole lawyers going after me just because I did a 5minute commentary on a game that's 30 years old
  5. Fishaman P

    Fishaman P Speedrunner

    Jan 2, 2010
    United States
    At least in the United States, downloading ANY ROM is illegal, no matter for how long or even if you own the cartridge/disc.
  6. Ikki

    Ikki GBATemp's grumpy panda.

    Jun 1, 2010
    Oh, don't worry. They can't know unless you mention it, and they don't watch them.

    I have a channel and 100% of it is gameplay of old games I could never get before (now I kinda can, since I have an income).

    Go ahead, no worries.
  7. vegemikee

    vegemikee GBAtemp Fan

    Aug 17, 2008
    And what if I, through wishful thinking, eventually gain a partnership with YouTube and actually begin collecting payments from them?
    I might sound ridiculous right now, but I really don't want to be caught in a legal dilemma, if it ever were to occur
  8. Demonstryde

    Demonstryde GBAtemp Fan

    Aug 22, 2010
    United States
    downloading a rom is not illegal, its called file sharing. prob wouldnt post any mortal kombat games as you are in AUS and its illegal to even own a copy of MK their.
  9. Ikki

    Ikki GBATemp's grumpy panda.

    Jun 1, 2010
    Then you can worry about not uploading cinematics from recent games because some companies can give you a copyright strike for that. Three copyright strikes and your account is gone. No lawsuit involved.

    There is seriously no way they know you illegally downloaded the games. I'm pretty sure NintendoCapriSun has plenty of emulator stuff and SSoHPKC is (was until not so long ago)constantly doing Super Mario World hacks. They both are pretty big YouTube Partners, SSoH having 190k subscribers and NCS having 110k.

    Edit: SSoH is actually doing Super Kaizo World right now.

    You really have nothing to worry about. Specially if you upload footage of old games.
  10. OmegaVesko

    OmegaVesko GBAtemp Regular

    Mar 28, 2011
    Nothing is going to happen, I can guarantee that. As long as you don't mention piracy or ROMs/emulators etc. (and make sure to not record the window itself, just the emulated screen), you'll be just fine.

    Just look at 90% of retro Let's Play's on Youtube. They'd all be taken down if recording ROMs was illegal.

    EDIT: Pretty much what Ikki said.
  11. Depravo


    Global Moderator
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    Oct 13, 2008
    That depends entirely on the copyright laws of the country you live in. If the file is copyrighted material and you live in a country with strict copyright laws then it IS illegal.
  12. AlanJohn

    AlanJohn くたばれ

    Jan 6, 2011
    Canada,New Jersey
    Just be a [​IMG]
  13. Hells Malice

    Hells Malice Are you a bully?

    pip Contributor
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    Hells Malice is a Patron of GBAtemp and is helping us stay independent!

    Our Patreon
    Apr 9, 2009
    This is like asking if the cops will come after you if you watch porn before you're 18.

    Just download the roms and do your thing, who the hell cares if it's illegal...nothing will happen.
  14. brandonspikes

    brandonspikes King Erazer

    May 30, 2010
    United States
    New York
    Unless you say, you will not get in trouble.

    I know a lot of guide sites and lets players that emulate.
  15. Rydian

    Rydian Resident Furvert™

    Feb 4, 2010
    United States
    Cave Entrance, Watching Cyan Write Letters
    Translation: That's so inaccurate I have to question if you're just trolling.
    See Also: kongsnutz
  16. Hells Malice

    Hells Malice Are you a bully?

    pip Contributor
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    Hells Malice is a Patron of GBAtemp and is helping us stay independent!

    Our Patreon
    Apr 9, 2009

    No one cares if you're a pirate. Everyone's a pirate. So nothing will happen. You'd have to be full on retarded to actually think downloading, playing, or streaming yourself playing roms would actually get you in ANY trouble.

    Getting in trouble for piracy is probably about as likely as winning the lottery.
    Kongsnutz won the wrong lottery. Though didn't he pirate, or upload a game before its release and get caught? I don't even remember what happened. OP is talking about roms of old games, so my statement stands. Nothing will happen.
  17. Schlupi

    Schlupi Gbatemp's Official Earthbound Maniac™

    Aug 31, 2007
    United States
    Rozen Queen Co, Chicago Branch
    People pirating games in their own homes most likely won't be busted. the government has better things to do, they only get one person as an example every once in a while... you'll see it on the news.

    Kongznuts=fail. He uploaded a game WEEKS before it was released (A HUGE title too) and of course he'd get trouble for it. We all know Nintendo frequents these forums, Bro.
  18. MasterPenguin

    MasterPenguin GBAtemp Fan

    Jul 16, 2008
    <!--quoteo(post=902201:date=Dec 15 2007, 03:56 PM:name=Grimalkin)--><div class='quotetop'>QUOTE(Grimalkin @ Dec 15 2007, 03:56 PM) <a href="index.php?act=findpost&pid=902201"><{POST_SNAPBACK}></a></div><div class='quotemain'><!--quotec--><b>Piracy, what's legal and what's not</b> <i>By no means should this document be used as a legal reference in court</i>
    <b>Things to do (or in the process of researching): Patents, Trademarks and Emulators</b>
    <i>This document is deemed public domain and can be reproduced, or altered freely by anyone. If you have any other information that discredits or contradicts information in this document, PM me on GBATEMP and we'll discuss which has more credibility and I'll add it into this document.</i>

    <b>This is a simple report that I have researched (and used a lot of my work time to complete) in order to stop the f**king flaming in stupid legality battles over GBATEMP. This thread is meant only for discussion of facts and is not up for debate. Data used will be facts and not personal opinion. I am by no means, a legal expert and is only interpreting data obtained via internet or by publication.</b>

    <b>So, how do we know if it is copyrighted?</b>

    In 1952, most, if not all major developed countries met at Geneva and agreed, accepted of acceeded to the Universal Copyright Convention; However, since most of the nations are now part of the World Trade Organization (WTO), the <i>Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)</i> had been accepted as the international agreement which is now dominent for all nations globally. The TRIPS outlined requirements that each nation's law must meet, such as: <b>copyright rights</b> (including rights of performers, producers of sound recording and broadcasting organizations), geographical indications, integrated circuit layout-designs, <b>patents</b>, monopolies for the developers of new plant varieties, <b>trademarks</b>, trade dress, and undisclosed or confidential information.

    A TRIPS member requires their states to provide strong protection for intellectual property.
    <i>How to tell if your country is a TRIPS member: your country trades to the United States. Unless under certain circumstances such as war, financial and/or poverty aid.</i>

    -Copyright terms must extend to 50 years after the <b>death of the author</b>, although films and photographs are only required to have fixed 50 and to be at least 25 year terms, respectively.(Art.7(2),(4))

    <i>Also note that Anonymous work will expire 50 years after the work was deemed public.</i>

    -Copyright must be granted <b>automatically</b>, and not based upon any "formality", such as registrations or systems of <b>renewal.</b> (Wait, does that mean this article is copyright too?)

    <i>Apparently if the original author dies, the copyright is automatically transferred to closest relative and/or publications office (for another 50 years). I'm not actually sure about this one, but I'll find some sort of source for it later...</i>

    -Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.

    -Patents must be granted in all "fields of technology," although exceptions for certain public interests are allowed (Art. 27.2 and 27.3 [1]) and must be enforceable for at least 20 years (Art 33).

    -Exceptions to patent law must be limited almost as strictly as those to copyright law.

    -In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPs signatories by the principles of national treatment (with certain limited exceptions, Art. 3 and 5 [2]).

    <!--quoteo--><div class='quotetop'>QUOTE</div><div class='quotemain'><!--quotec-->Article 10
    Computer Programs and Compilations of Data

    1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

    2. Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.<!--QuoteEnd--></div><!--QuoteEEnd-->

    This is Article 10 (obviously) from the WTO Official Text, which signifies all work/code/compilations/etc. are considered as literary works. What does it mean? Wait, what <b>does</b> it mean...

    If we look at the Berne Convention on literary works:

    The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright, which was first adopted in Berne, Switzerland in 1886.

    <!--quoteo--><div class='quotetop'>QUOTE</div><div class='quotemain'><!--quotec-->ARTICLE-2
    ... (1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. ...<!--QuoteEnd--></div><!--QuoteEEnd-->

    So under the Berne Convention would cover all aspects of the media, such as: music, graphics (including Three-Dimentional Works), and the coding itself (regardless if it were in machine readable code, meaning the product in it's entirety).

    <b>Since the Berne Convention is gigantic, I'll let you guys decide what else is important. <a href="" target="_blank">Berne Convention Reference</a> In summary, all aspects of the media (which would include ROMs) is held under copyright. Also...</b>

    <!--quoteo--><div class='quotetop'>QUOTE</div><div class='quotemain'><!--quotec-->ARTICLE-11bis
    ... (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one; ...
    ... (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work. ...
    ... (3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this <b>Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast.</b> It shall, however, be a matter for <b>legislation in the countries of the Union</b> to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation. ...
    ... <b>(3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation.</b> ...<!--QuoteEnd--></div><!--QuoteEEnd-->

    And by "work" we mean...

    <!--quoteo--><div class='quotetop'>QUOTE</div><div class='quotemain'><!--quotec-->ARTICLE-1
    ... The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works. ...<!--QuoteEnd--></div><!--QuoteEEnd-->

    So, we can't even record the sound or images (means video too) of the "work". So, if one were to make a video of the game, record sound from it, or take pictures, we'd be doing something illegal. Even more legal trouble if we try to broadcast it (via spoken, loadspeaker, or through wired-broadcast [including the internet]) we'd be in even more trouble. I'm also assuming that ROMs would fall under accordance to the Berne Convention as a recording of the original publication, which would mean: <b>ROMs are illegal</b>. However, I have yet to uncover anything about owning a copy and making a backup of the original publication(s). But, this would definitely be a loophole a lawyer in court would use against you. The Berne Convention takes priority before the TRIPS (because it was based accordingly to agree with the Berne Convention).

    Now back to the WTO and TRIPS...

    <!--quoteo--><div class='quotetop'>QUOTE</div><div class='quotemain'><!--quotec-->Article 11
    Rental Rights

    In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental.<!--QuoteEnd--></div><!--QuoteEEnd-->

    Wait... so the original publication can be prohibited from rental? I never knew that. But... the last sentence is a contradiction to the previous statement, how do we deem what's "essential" to the rental or not?

    <!--quoteo--><div class='quotetop'>QUOTE</div><div class='quotemain'><!--quotec-->Article 12
    Term of Protection

    Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.<!--QuoteEnd--></div><!--QuoteEEnd-->

    Well, I guess I found my answer to my previous inquiry about the expiration of the copyright. So, 50 years is the minimum term of protection, what about the maximum? Such information is not answered in either Berne Convention or WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights.

    <b>End: Copyrights</b>

    <b>ROMs, are they legal?</b>

    ROMs by itself are not illegal (well, not exactly)..

    In some countries, it is legal to make a "backup" copy of the original work. However, this backup cannot be used for entertainment purposes. This copy is to be used to prove that you own the game as an insurance against the original publication owners if the copy of the media is unreadable. In short, if the label falls off of your game cart, it breaks and you try to get a warrenty claim for it, but you can't prove that you owned it originally.

    But, guess what?

    In the United States, since 1983, it is illegal to make backup copies of video game media to other game cards (Sigh... flash cards). Which was the main precedence in the court case of Atari versus JS&A that their product allowed to create a ROM backup copy to a blank cartidge. In this battle JS&A argued that their product was used for archival purposes only, but the court disagreed, <i>noting that ROM media was not subject to the same volatility as magnetic media.</i>

    Poor US, but what about the rest of the world? Still, no luck for anyone...

    All manufactured software contains a End-User License Agreement (EULA). This document takes precedence above all media laws because it is a document that deems "fair-use" which is created by the "copyright owners" (See: So, how do we know it's copyrighted?). In most cases (if not all of them, and <b>especially Nintendo</b>), they print inside their game manuals that they disallow backups or archival copies.

    After looking through a few of my legal media: Yeah, it's all there, and in normal print too. Now, whether these printings are valid through legal clause in terms of fair dealing; Not sure, but I personally don't want to bring them to court about it. Cases against copyright owners usually favor the copyright owner.

    <i>The 24-Hour Claim</i>

    Some websites claim that you may obtain ROMs for exactly 24-hours and is deemed "fair use". This claim is completely, and undeniably <b>false</b>. There has never been such a law.

    <i>Officially Licensed, Freely Licensed and Unlicensed ROMs, Oh my!</i>

    Now, there are some ROMs that have been officially licensed. Atari had made many of their original arcade games available in ROM for to work on the emulator MAME. Nintendo also provides a similar service on their Virtual Console. These are "legal" ROMs.

    Freely Licensed ROMs are games/media that is no longer manufactured. However, they only become freely licensed when the original copyright owner announces that the media is "freely licensed" or the copyright holder(s) die and the Terms of Protection officially end (by end of calendar date of 50 years after the death(s)). Freely Licensed ROMs also include Homebrew.

    Unlicensed ROMs are games that no longer make any profit and/or no longer able to be obtained in legal form. Legality varies between many countries; however, non-commercial and research use is <b>permitted and legal.</b> Still, some countries ensure that this practice is illegal, downloading abandonware is in vast majority, legal. In fact, there's no law about it in any North American convention!

    That said, the legality of some of the NES, GB, SNES and older systems of the 80s and 90s would be legal. However, the games that can be obtained (whether or not it's for the same console) is still illegal. Games such as Super Mario World, which can be obtained on the GBA, would be still illegal -- downloading (note: I did not say distribute) games such as Final Fight, or E.V.O. would be legal until the copyright owner brings the game back into circulation. <b>Unless, the copyright holder states that you are not allowed to download such ROMs.</b> (Yay for loopholes).

    Also relevant:

    <!--quoteo--><div class='quotetop'>QUOTE</div><div class='quotemain'><!--quotec-->Abandonware (ripped from Wikipedia):

    It is often the case that games which are still in copyright are no longer sold or marketed by their copyright holders. This may be due to the perceived lack of demand for the game or for other reasons. Some of those engaged in ROM trading claim that such games should be deemed abandoned by their copyright holders and that the game, termed "Abandonware", can be freely traded by users.

    This invokes the concept of Abandonment from trademark law, whereby trademarks which are no longer exploited by their holders become abandoned. While this concept exists in trademark law, there is no equivalent concept in copyright law. In fact, the copyright laws of most countries, including all signatories of the Berne Convention, grant copyright holders the exclusive right to distribute, or not distribute, a work until such time as the copyright expires under law or is granted to the public domain by the copyright holder.<!--QuoteEnd--></div><!--QuoteEEnd-->

    And also:

    <!--quoteo--><div class='quotetop'>QUOTE</div><div class='quotemain'><!--quotec-->Commercial distribution (Taken from Wikipedia)

    Commercial distribution of copyrighted games without the consent of the copyright holder is generally illegal in almost all countries, with those who take part in that activity being liable for both criminal and civil penalties.

    Online auction sites such as eBay have sometimes been used by sellers to sell unauthorised copies of games which are advertised as legitimate copies. Such sellers, in addition to violating copyright laws, may also be prosecuted for fraud and/or false advertising.<!--QuoteEnd--></div><!--QuoteEEnd-->

    So, I took a look into the previous quote from Wikipedia, apparently, we cannot sell media that we own. It is deemed commercial distribution and very illegal by copyright standards. Which is also funny, what if we trade in our games at a GameStop or EBGames? Technically, that would be commercial distribution on the consumer end. (Who knows, I'll add that to my list of things to research).

    <b>End of Document: I'll add patents, trademarks and emulators later, but I'll tell you something before I post it. Emulators are illegal, regardless of it's purpose and how the end-user uses the software. (Unless it was created by patent/copyright holder and licensed)</b>

    The WTO official text, retrieved via internet, Dec 15, 2007, <a href="" target="_blank"></a>
    The Berne Convention Cross-Reference, retrieved via internet, Dec 15, 2007, <a href="" target="_blank"></a>
    Nintendo's Intellectual Property FAQ, retrieved via internet, Dec 15, 2007, <a href="" target="_blank"></a>
    10 Big Myths about copyright explained, retrieved via internet, Dec 15, 2007, <a href="" target="_blank"></a>
    Copyright FAQ: 25 Common Myths and Misconceptions, retrieved via internet, Dec 15, 2007, <a href="" target="_blank"></a>
  19. ZAFDeltaForce

    ZAFDeltaForce Specialist

    Sep 9, 2006
    Now I'm no lawyer, but as far as I know, there is no grey area for the downloading of the ROMs of commercial games

    If you don't own the original title, downloading it as a ROM is illegal
    Even if you own the original title, downloading a ROM as a "Backup" is illegal
    Downloading a ROM for the sake of parody, review or criticism is illegal

    Long story short, no matter what, downloading ROMs of commercial games is illegal

    That rule is merely some silly rule thought of by pirates out of their guilty conscience in "reducing the severity of their actions". (It does not by the way)

    It by no means reflect any law of any country (As far as I know of course)
  20. Nathan Drake

    Nathan Drake Obligations fulfilled, now I depart.

    Jan 2, 2011
    I have to ask about the 24 hour rule.

    Various sites I've gotten game files from, whether they be NDS games, PSP games, or otherwise, will say that you need to delete the file within 24 hours, presumably for legal reasons. Assuming that downloading the file at all is illegal; is it somehow less illegal if you only hold the file for 24 hours?

    Edit: Oh look, was answered above probably either shortly before, or shortly after I hit the post button. :3