Are emulators illegal? The answer is no!

When we talk about console emulation, it is not uncommon for the subject to be considered a kind of taboo, being seen as an immoral practice, within the nebulous limits of legality, since such a practice is commonly assimilated to piracy — which, definitely, is considered a crime by a considerable portion of Constitutions around the world.

After all, emulators are illegal? well, the immediate answer is no, but there are some more complex aspects to consider. Check it out in our video and here in the article!

What is emulation?

First of all, it is important to define specifically what the term emulation means. According to the dictionary, “emulate” something means reproduce specific features of the original, a way of imitating with the intention of bringing a similar alternative for comparative purposes. For example, when a famous musician or performer produces a new work that refers to a previous production by another artist, he is emulating their characteristics. This also extends to a director who incorporates elements characteristic of others into his film, also applying to the audiovisual sector.

In this way, the term “emulation” was incorporated by computer science when some system tries to reproduce, within itself, another. Windows, for example, has a built-in emulation feature, as it itself offers the possibility of creating a “virtual machine”, which will reproduce a second instance of the current operating system (or previous version) within the same computer, without the former having to be deactivated.

Thus, to emulate any video game on a PC, for example, is to reproduce the characteristics of that platform in question on another system. What happens is that an emulator usually does not contain any code protected by any laws involving copyright or patent registration.

Are emulators illegal?

With this in mind, emulators are programs generally produced from reverse engineering in order to be able to replicate, on their own and using the hardware of their own computer and cell phone, the referent system of several consoles, ranging from older names, such as O Mega Drive, to more modern ones, such as even the Switch.

Furthermore, most emulators are released under a free license and it is usually the programmer's own intention that they are freely shared by users following the hacker ethics code. In this case, such a code of ethics works as a kind of code of conduct that sees everything in the world as information that needs to be free, consumed by anyone who wants it.

Emulators therefore apply to this story as pieces of information that can therefore be shared. It is noteworthy that there are no copyrights being infringed here because at no time does it contain third-party codes in its composition. There is no patent infringement — the emulator code is produced only as a way of trying to digitally replicate what a console's dedicated hardware already does.

That's why it's not uncommon for emulators to be freely distributed without any hindrance in stores like Play Store, Steam ou App Store (as is the case with RetroArch) and have been adapted to run on both PCs and mobile devices. In the games industry, even large companies end up using emulators as a way to facilitate access to their classic titles, as is the case with retro games in Nintendo Switch Online or even in various editions of mini consoles available on the market.

Although this situation seems quite clear and objective, it is necessary to remember that an emulator alone is not very useful — after all, it would be the same thing as having a console and not having any game to run on it. It is at this point that the debate ends up getting more thorny and begins to enter a gray area of ​​legislation, since it involves the so-called ROMs — and these do bring with them certain implications related to proprietary rights.

Is downloading ROMs against the law?

In the same way that a console reads a cartridge, CD, or digital media files, emulators need certain files to try to run the software corresponding to the video game that the system is trying to emulate. In this case, it is about ROMs, an acronym for Read Only Memory (read-only memory), which are closed files (called images) that cannot be naturally modified by the platform that will read them, only reproduced in their entirety.

The problem is that, in the same way that a movie or a song cannot be commercialized or distributed without the prior authorization of the manufacturer, which is considered an act of piracy for infringing the proprietary rights of the owner of the work, a ROM cannot be modified either. or distributed because it infringes on the rights of the entity registered as the owner of the brand — which is why they are legally heavy-handed in this matter of protecting what is theirs.

Talking about piracy, it is extremely complicated to measure the population that, in a practical way, consumes pirated products. To begin with, there are certain mechanisms that take into account the existence of a so-called principle of irrelevance with respect to a consumer.

This is because they refer to sporadic situations that are difficult to identify and that theoretically do not directly contribute to the illegal distribution of protected products, especially after the implementation of the Marco Civil da Internet, which guarantees the privacy of citizens on the network — and this complicates the access to data proving the crime (which can lead to up to one year in prison). It is noted, however, that the practice of consumption is considered a crime because, in theory, those who use pirated products are promoting the commerce of this type of illegality.

Now, is emulation piracy? Well, since we have already made it clear that there is nothing to certify that emulation is a crime or that emulators are illegal, therefore, the act of downloading and using emulators also does not qualify as piracy.

Is distributing ROMs illegal?

Although there is a certain blind eye to the crime of consuming illegal products — including ROMs — the distribution has some heavier consequences for those responsible. In 2021, for example, there was a legal action promoted by Nintendo itself against the owner of a portal called ROMUniverse. As if it wasn't enough to distribute the registered collection massively, he still charged for access to software that obviously didn't belong to him.

The case ended up unfolding in a rocambolesque way, as the person responsible, Matthew Storman, was ordered to pay a compensation of two million dollars to Nintendo. Considering the absurd amount, the amount was amortized in countless installments of only fifty dollars.

The situation is complicated when one of Nintendo's original requests was that the site in question never be returned to the air, a request eventually denied by the jury. To add even more layers to the soap opera, Matthew failed to pay the first installment of damages, something that made Nintendo's lawyers go back to court and appeal. Thus, the conclusion is that an injunction was issued that determined the definitive closure of ROMUniverse and forced Storman to destroy any unauthorized copy of products belonging to Nintendo that he held.

In other words, there is no debate: sharing and distributing ROMs is an illegal practicel referring to the disrespect of the legislation referring to copyright, especially in a mass way or, still, charging for access to the files. Keep an eye!

Can I download a ROM if I already have the original game?

Coming back a little now to the issue of consumption, there are certain ways of trying to justify owning ROMs so that emulators — which are not illegal to download, although they are virtually useless without ROMs — will work. One of them is the justification that if you own an original copy of the game in question, there is a legal limbo of fair use (in Portuguese, something like “justified use”) that allows the storage and eventual use of the corresponding ROM.

This is because, theoretically, when we purchase a product, it is ours. We are free to use them as we wish as long as domestically (without involving public distribution or involving a larger number of people that configure “public use”). Thus, the extraction for storage and security guarantee of one of our possessions (in this case, the ROM) is completely allowed as we are exercising the right to protect our property.

Consequently, hypothetically, downloading a ROM will not exactly be very far from extracting a backup characteristic of a product of ours, since, as files of only reading, it will be impossible to determine the difference between two virtually identical files.

However, the nebulous field regarding the legislation of the fair use leaves room for several different interpretations. Let's say I extract a backup of a PlayStation game developed by Sony Interactive Entertainment for its own storage. What Sony can do is accuse that the simple act of extraction is already an unauthorized modification of its product, claiming that the process would fit there. There is a lot of room for maneuver and argument in the courts, and each case can take a different turn due to a number of variables involved.

Emulation is preserving the history of games?

One justification used to defend the emulation and preservation of ROMs is that the practice in question is a way of preserving the history and legacy of the creative game industry, since companies are not always interested in re-releasing some of their most popular games. obscure, which makes access to such products increasingly difficult over time.

The argument even extends to notoriously bad or irrelevant games, as they are also the product of this creative industry and, therefore, as much a part of history as the established classics and which will certainly be re-released and remembered in the future.

While this concern for preservation is valid, it is important to remember that it is still intellectual property with an owner. This applies even to companies that ended up going bankrupt, as they are still brands that can be acquired by other active companies. The practical issue is to be able to identify which brand holds the rights and whether it has an interest in claiming ownership of the software in question.

Sources: retrodo, HowToGeek, Tom's Hardware, TechRadar, Polygon

Read more

Now that you know a little more about the legal aspect of emulation, check out our guides on how to download. emulators for Nintendo platforms e emulators for PlayStation consoles.