a question regarding piracy

[sagitel]

emuparadise recently got shut down. (if you don't know, it was a site dedicated to old ROMS and emulators. games from the NES and Sega Dreamcast era) and an age-old question comes up. are old ROMs piracy?

now, I don't condone regular piracy. to download a game like thrones of Britannia free should be and is a crime. There is no doubt about it. but these old ROMs are a different tale. I'm gonna use pokemon red and the Gameboy Tetris game as examples. I can't buy these games. its not possible to buy these games a. from the actual publisher/developer. or b. without paying an exorbitant price to second-hand sellers.(mother 3 is going for about 150$ on eBay which is nuts) so I as a customer can't even pay the company for these games because they aren't for sale.
then the second problem comes up that the developers need to get the money from the games they create. which is reasonable for new games but these games? now the developer of the, let's say old tomb raider games, doesn't even exist anymore. its closed up so no way of the money actually going to them.
then there is the third problem. some of these games CANT even go for sale anymore. the gameboy tetris i talked about? noone is sure who owns the rights now. its all a big legal jumble that will take years to sort out. if it ever does. so that game (and many others) will never ever go for sale again.

so taking all of these into consideration is downloading old ROMs like pokemon red or old tomb raider games for free piracy?

 

[TheMysteriousGX]

I figure if the first party isn't able to make money on the sale in any remotely convenient way, it's not piracy.

That old NES game that Nintendo is literally not selling?

 

[totheendofsin]

If it's not available for easy purchase in any way (either it's completely unavailable or copies of a game are so rare the ones that are available are prohibitively expensive) I'm not going to feel bad using emulation to play a game

 

[n0e]

Emulators fall under the same umbrella that trademark content used in video game mods fall under. They're tolerated if it's "not worth it" to the IP owner to legally pursue or leads to potential profit by those who do not own the rights to the content.

Emulators have been largely ignored by those companies that own the rights to the games up until now because those titles were not profitable for the company and court fees too expensive to pursue legal action against those who distributed them. However, with a resurgence of vintage style game and mobile gaming flooding the market, these titles are being looked into more by their owners as a way to potentially drive interest in them again. As such, they see emulators as a potential avenue that can lose profit, similar to what piracy does to their bottom line and will actively seek action against those who distribute the content.

This is my theory anyway, from my experience in dealing with said companies via DMCA notifications for many years.

 

[Yoshi178]

I'm gonna use pokemon red and the Gameboy Tetris game as examples. I can't buy these games. its not possible to buy these games.

yes you can.

it's called the virtual console on the 3DS...

 

[I can't enter my old name]

It's all piracy. If it has a copyright and you are downloading it without permission, it's piracy.

So old roms and abandonware are piracy, but companies don't care. Actually they probably do care a lot and loathe pirates, but not enough to bother finding your IP and to tell your ISP to cut your internet for some old game.

Emulators, to expand on @n0e 's post, are legal because they were created through reverse engineering. You are perfectly allowed to reverse engineer software/hardware and distribute it as long as you did not agree to a EULA that prohibits you from doing so, and you have not bypassed any DRM in the process. It's actually quite common, as without reverse engineering we would not have IBM compatible PC's, no AMD CPUs, and no Linux either.

The software that comes on consoles on the other hand is either EULA protected or the emulation team doesn't bother reverse engineering it, so you have to dump the BIOS/firmware from a console, preferably from one you own. As long as you own the original console and the games, it is completely legal (tbh most people who emulate probably don't).

 

[sXeth]

Well yeah, the "ROM" you're downloading is the literal game. Its what you would be paying for. So emuparadise was likely hosting a ton of things mixed between actual abandonware (such as it is) and stuff thats still owned by whoever.

Exult (which facilitates running the insanity that is Ultima 7 and 8 (which used literally a custom OS you needed a boot disk for to get around memory constraints in Dos)) for instance, survives despite being an emulator for a property owned by Electronic Arts because it only lets you run a copy of the game you already have, whether off of GOG or old disks or whatever.

I suppose its possible the systems have some sort of existing patent that might be used against the emulator itself if they can prove its directly ripped, but tech patents don't have the Disney megacorp lobbying their unending extensions and over-broad reach the way IP has.

 

[Abomination]

If there is no reasonable way to give the publisher currency in exchange for your own version of the game, it's a victimless crime.

 

[sagitel]

I'm gonna use pokemon red and the Gameboy Tetris game as examples. I can't buy these games. its not possible to buy these games.

yes you can.

it's called the virtual console on the 3DS...

You can't buy gameboy tetris. Since Nintendo no longer owns Tetris. They can't sell it

 

[KingsGambit_v1legacy]

It's the same, age-old question. I don't think my answer will ever change. As the OP already said, ROMs (and by extension, Abandonware in general) have always been in a legal grey area. When ownership is muddy or further uncertain, it is also further complicated.

If something is protected by a copyright, then copying it is against the law. If the copyright holder no longer exists then it's probably okay but this is an opinion, not legal advice! If you want something that cannot be bought thru legal channels, it could still be against the law, tho from a moral standpoint, I don't think anyone would actually care. Even the flimsy "piracy costs sales" argument that has no merit on a contemporary commercial product is laughable.

Morally, I have no issue with downloading abandonware or ROMs for games/systems which cannot be bought. I wouldn't condone it, but I won't condemn it either. Legally, it would depend on whether the rights belong to someone and can/will be enforced. I don't think there's anyone out there who'll care if someone plays Zak McKraken on DOSBox or some gameboy emulator.

 

[Mothro]

If the copyright owner isn't currently selling it, I see no problem with it. After all, paying hundreds of dollars on ebay for Chrono Trigger isn't helping Square Enix or Nintendo. Now you may argue that Chrono Trigger is for sale currently on Steam and mobile but I would say that those versions are not the same as the original SNES version.

 

[Inazuma1]

Now you may argue that Chrono Trigger is for sale currently on Steam and mobile but I would say that those versions are not the same as the original SNES version.

The re-releases are often worse. The Android release of Chrono Trigger is a 37 MB large download of nothing but touch controls and DRM. The game requires an always on internet connection to authenticate that you're running a legit version and downloads the game data it needs on the fly for whatever you're doing. I'll take "Quickest Ways to Chew Through My Data Cap" for $800 Alex. Oh, and it completely crashes if you ever lose your connection.

You can't buy gameboy tetris. Since Nintendo no longer owns Tetris. They can't sell it

And the official releases from EA and the Tetris Company are shit and not worth playing.

 

[Tony2077]

its a grey area because if the company that made it no longer sells it or no longer exists and places like ebay are just random people that in some cases charge an arm and a leg for it the company wouldn't have made money either way

 

[McElroy]

If there is no reasonable way to give the publisher currency in exchange for your own version of the game, it's a victimless crime.

It's always victimless :^)

Unless you don't seed, you monster!

 

[Satinavian]

It's all piracy. If it has a copyright and you are downloading it without permission, it's piracy.

So old roms and abandonware are piracy, but companies don't care. Actually they probably do care a lot and loathe pirates, but not enough to bother finding your IP and to tell your ISP to cut your internet for some old game.

That depends on the laws of the nation you are in.

There might be laws to allow copying of stuff that isn't monetized by the right holders and thus not on the market and has not been on the market for a long time (like 20 years+) if you copy it only for your private consumption. That is usually irrelevant for video games, but it is very relevant for e.g. literature and in some countries leads to some publishers publishing very small numbers of books every 20 years just to keep the copying illegal.

And the legal state of abandonware might even be more complicated. While it is not allowed to copy that there might also be none who could sue you for it due to no actual recognized right holder existing and no one claiming to be one.

Emulators, to expand on @n0e 's post, are legal because they were created through reverse engineering. You are perfectly allowed to reverse engineer software/hardware and distribute it as long as you did not agree to a EULA that prohibits you from doing so, and you have not bypassed any DRM in the process. It's actually quite common, as without reverse engineering we would not have IBM compatible PC's, no AMD CPUs, and no Linux either.

Yep, emulators are nearly always legal.

The software that comes on consoles on the other hand is either EULA protected or the emulation team doesn't bother reverse engineering it, so you have to dump the BIOS/firmware from a console, preferably from one you own. As long as you own the original console and the games, it is completely legal (tbh most people who emulate probably don't).

EULA isn't particularly important. It is a license agreement, not a law. It is not illegal to not follow it, it is only a breach of contract at best. Half the stuff you agree nowadays to isn't even that because it is against customer protection laws and thus void anyway.
Software developers have tried for decades to legally limit the stuff their customers can do with the software and EULAs are typically written to demand as much as possible. But how much of that actually sticks depends again on your country.

 

[sXeth]

EULA isn't particularly important. It is a license agreement, not a law. It is not illegal to not follow it, it is only a breach of contract at best. Half the stuff you agree nowadays to isn't even that because it is against customer protection laws and thus void anyway.
Software developers have tried for decades to legally limit the stuff their customers can do with the software and EULAs are typically written to demand as much as possible. But how much of that actually sticks depends again on your country.

To my general knowledge, they can't even work as contracts in most cases, since there's no record/witnessing/anything of you actually signing it for most cases. They can try and say you definitely must have clicked a checkbox, or scrolled over the text but there's no legal record who did. Possibly you could be made to cease using the software until you did sign an EULA, but finding someone punitively in breach of it would be tremendously difficult.

 

[CaitSeith]

Games copyrights suck when it comes to preserving old games. And usually we talk about the most popular, forgetting dozens of good or unique games that faded into obscurity for not being a commercial success or just for not being released on the west.

PS: This reminds me, is there a change in the site's policy when it comes to talking about emulators and piracy?

 

[Dalisclock]

its a grey area because if the company that made it no longer sells it or no longer exists and places like ebay are just random people that in some cases charge an arm and a leg for it the company wouldn't have made money either way

Or the game was never imported.

For the record, I'd totally pay for a copy of Mother 3 if it was ported to the US, but since Nintendo apparently feels that gem needs to be Japan only release until the end of time, I'm not gonna feel bad emulating it.

I mean, if you don't put it on sale, Hard to cry that you're losing money because people are playing it anyway.

 

[Tony2077]

its a grey area because if the company that made it no longer sells it or no longer exists and places like ebay are just random people that in some cases charge an arm and a leg for it the company wouldn't have made money either way

Or the game was never imported.

For the record, I'd totally pay for a copy of Mother 3 if it was ported to the US, but since Nintendo apparently feels that gem needs to be Japan only release until the end of time, I'm not gonna feel bad emulating it.

I mean, if you don't put it on sale, Hard to cry that you're losing money because people are playing it anyway.

yeah there is that too there are many games i would love to play that just never showed up over here. there is an anime i was like there is no legal way to get this because the company that brought it over closed down luckily a company is doing something with the license and its coming out on blu-ray next month

 

[Chimpzy_v1legacy]

PS: This reminds me, is there a change in the site's policy when it comes to talking about emulators and piracy?

From the CoC

Piracy, Illegal Narcotics, or Ad-blockers
Do not link sites for piracy, drugs, or ad circumvention, nor advocate or admit to the use of any of the above. While discussions of these topics may come up anecdotally, the proliferation of material is disallowed on these forums.

Since this thread has so far been free of mod wratch though, I'm guessing just discussing complicated legal gray areas like emulation is ok, or at least tolerated, so long as we don't say we pirate, tell anyone else to or otherwise enable it.