Are ROMs Legal In Australia?

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There is a swathe of video game ROMs and emulators floating around on the internet that can be readily downloaded. There are also people who convert their old games into ROM images so they can be backed up and conveniently accessed through emulators. But is any of this legal in Australia?

With a few simple clicks, we can download free software online and often we don't stop to think about the legalities of the action. Emulators and ROMs have gained a lot of momentum in recent years as a way to play games without the need for a physical console.

In a video games context, emulators are simply a piece of software that pretends to be a physical gaming system. Let's clear one thing up first: emulators themselves aren't exactly illegal. If you've obtained it lawfully and the code isn't under any form of copyright then it's completely fine. That's not usually a problem since most emulators are created to be free-to-use.

ROMs, on the other hand, are a different story. There's a common assumption that if you own the game, then it's fine for you to rip the data, turn it into a ROM image and store it as a backup copy or to play it on legal emulators. After all, you did pay for it and you're not sharing it.

Oliver Smith, intellectual property and technology lawyer at law firm Bird & Bird, explained why this assumption is wrong:

"Now we need to consider the laws around copyright in computer programs, a form of 'literary work' protected by the Australian Copyright Act 1968 (Act). In simple terms, 'copyright' is the 'right' to 'copy'. For the most part, that means a person (or in this case company) that owns copyright in a literary work, has the right to choose how and to whom a copy of that work is made available.   "If you use the cartridge to create a ROM image, you are making a copy of the game. That's not permitted under the Act, because copyright is the exclusive right to do acts comprised in the copyright in the work."

By now, you might be thinking, "But doesn't copying a ROM for a game I already own fall under the idea of Fair Use?"

To clarify, Fair Use is a concept that allows the use of copyright material for a limited and 'transformative' purpose. The latter includes using the content for commentary or criticism. Fair Use is often employed as a defence for copyright infringements.

Unfortunately, Australia doesn't have a Fair Use exception. As Smith explained: "Australia has a much more limited concept called 'fair dealing'. Fair dealing permits use of copyright work for certain limited purposes, including research or study, criticism or review, parody or satire, reporting news, judicial proceedings and professional advice."

There are some exceptions in the Australian Copyright Act for computer programs and for 'non-infringing back-ups', also known as 'format shifting', but that doesn't apply to all ROMs copied from old game cartridges or discs unless you obtain permission from the copyright holder. Smith said:

"This exception doesn't apply if the data in the ROM cartridge 'decompiled' to create the back-up, or if the owner has so designed the program that copies of it cannot be made without modification.   "Arguably, if the original might one day be a collectible, there is some merit to an argument that the ROM image is made so that the original can be stored away. But this is probably the exception rather than the rule. It would be harder to argue in our hypothetical that the ROM image was really made for the purpose of a back-up and not just so it can be played on a different device."

While there may be some exceptions if you do own the game and rip the ROM yourself, most of us are likely to just download ROMs that are already available online. That, Smith said, is definitely illegal and is no different from torrenting an episode of Game Of Thrones.

"So that's the long answer: unless a clear exception applies, the ROM image of Legend of Zelda is likely to be an illegal copy," he said.

The illegalities around obtaining ROMs are frustrating given physical copies of retro games are incredibly hard to find or are ridiculously expensive. This is compounded by the fact that working consoles that can play these games are also difficult to find. Sure, video games companies are increasingly catering to retro gamers by releasing some of our favourite titles through online marketplaces for their respective consoles, but the range is limited at best and the conversions often play poorly on the new systems.

There's a lot wrong with copyright laws in general and there are aspects that definitely deserve a review to bring them in line with modern times. Smith did offer a glimmer of hope in regards to this:

"But watch this space -- the Productivity Commission is busy on a report to Government on copyright which is likely to include some recommendations about expanding "fair dealing" to include concepts of "fair use". It was already recommended by the Australian Law Reform Commission in its Copyright and the Digital Economy Report No. 122, released in 2014."

This story originally appeared on Lifehacker


Comments

    The TL;DR of this is:

    ROMs are definitely illegal of you don't own the original game, and are a legal grey area even if you do, so you'd best avoid both scenarios. Emulators however are not illegal.

    Something the article doesn't mention is the concept of "abadonware" - that is, the belief that since the original creators are no longer selling it or promoting it (such as an old console game), that it's okay to obtain a copy such as a ROM. This is not the case at all. Computer software has at least a 75 year copyright life on it, so even the very first commercial video games ever made still fall under this and will do so for at least another 30 years or so yet. It's true that some software creators decide to release their game to public domain - in which case you're completely free to download and distribute them. But most don't, so beware of anyone trying to pull the abadonware argument on you.

    Last edited 17/08/16 9:18 am

      Oooh thanks, people often forget the length of an original copyright claim ^_^

      Depends on the emulator. Most emulators won't work without a BIOS that needs to be ripped from the chips in the console itself. That would fall under the same copyright issue.

      A friend of mine justified (to himself) that he could use a ROM/emulator provided he owned the console and ripped the game himself, and used a BIOS that matched the revision of the console he owned. He had a system that would let him save Gamecube games as ISO using the Wii console. Getting hold of the BIOS was another story.

      This is all very much grey area and certainly not the norm. Given its Nintendo, I'm sure they would make a fuss over not re-buying games on the Nintendo Shop too.

      An argument could certainly be made when its a ROM/ISO for a game that is no longer for sale, where the original developer/publisher gains no monetary value about the use of said ROMs - only the equivalent of ticket scalpers. Once they become available as a re-release, thats another story.

      Computer software has at least a 75 year copyright life on it

      Life of the creator plus 75 years. And a lot of these works have companies (eg: Nintendo) listed as the copyright holder the 75 years starts after the company perishes.

      It's true that some software creators decide to release their game to public domain

      Hehehehe. Mentioning the public domain and gaming reminds me of what Universal tried to do with Nintendo.

        Nintendo is the copyright holder, which is not the same thing as the author. If there are multiple authors, copyright expires 70 years after the death of the last author.

        According to this article: http://www.wipo.int/wipo_magazine/en/2012/01/article_0007.html
        there was an Australian case that found "unequivocally that, under Australian law, an author had to be a human author." (reference given is Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149 at [100], [134].)

      What I'd find interesting to know if there is any case of someone being taken to court over obtaining a copy of 'abandonware'.

      It would be a morally questionable move by a copyright holder, as if they are not, nor have any plans to continue selling or promoting the product in question, what exactly do they have to lose. Although debatable, I would consider it good for a game or franchise's legacy if there were at least some means, official or not, of still getting a hold of past games.

      I know in this digital age many past games become resurrected on newer consoles as downloadable titles running on official emulation, or in Nintendo's case the retro NES. But how is one to know if a certain game without an official re-release could ever actually get one.

      Hey guys, also a copyright expert to some extent I guess. Work in an IP law related field and have a bach/masters in it, where I think combined, I've done about 8 courses that involve copyright in some shape or form including a lot of research and what ifs. Also a huge nerd, so I've always thought about these kind of things in my spare time. As per always, not legal advice, seek an attorney if you are really worried, I'm not being paid to give you advice. Just wanted to clarify/discuss some things that were said in the article, as well as some questions you guys raised in the comments.

      Copyright is life of the author plus 70 years. It's not 70 years after it was released. Some of you are implying its a different amount of years, or it's from the release of the product, just wanted to clarify that for you guys.

      In relation to abandonware, as some of you are referring to it. It doesn't matter if its no longer sold in any shape or form, an argument relating to that would not work. That isn't how copyright works. Abandonware is not a thing, it's more like, with all copyright, a big part is whether someone is going to bother, or wants to, sue you over the infringement. If the company no longer exists, then its more likely nobody cares. It would never be a defense if someone did arise and try to sue you for infringement though.

      The format shifting thing relating to decompiling this attorney talks about is really debatable and has not been considered in court in relation to ROMS, or anything similar. But yes, if you download a rom online, it won't count as making a backup arguably under the current legislation. On the flipside, certainly arguable that its essentially the same thing in court, but do you really want to waste money in court to work this out?

      What we really need is some minor copyright reform to provide clarity and keep up to date with advances in technology. Before now, copyright policy has been handled by a very small office in the attorney generals department, recently it moved to communications and the arts, I'm hoping they will be able to keep up with technology a bit better, considering they also deal with shifts in communications technology.

      Last edited 16/08/16 5:48 pm

        Great info and some useful insight.
        On another note.
        Some old games eg Nintendo used to put proprietary chips in there carts as a form of counterfeit protection. Bypassing that or faking it for the rom to me at least sounds a bit like cracking the DRM on dvd which as we know is illegal.

          Yeah. Not really something I've delved into a lot. But there are laws on circumventing those kind of measures within the copyright act. Of course whether that's your problem if someone else circumvented them is another matter and I'm too tired to look it up haha.

            HES was somewhat well known for their unlicensed NES games that used either a dongle I think or an official cart to piggyback off for circumventing the lockout system, I'm not sure how much things have changed in the meantime but I think they managed to get away with it alright.

        "if you download a rom online, it won't count as making a backup arguably under the current legislation"

        This. It would constitute an "infringing copy".

          Yep. Which is what the attorney was saying. The backup and format shifting related areas of the act are pretty dated though and you could ways argue them in court. I wouldn't say it's 100% clear either way, which is typical for Law, haha.

      Abandonware may exist where a game company has gone under and nobody has bought the rights to one of their games. Of course I have no idea if there are any such games that anyone would want.

        It depends on how your are defining abandonware. Yes, it exists under our current understanding, something that has been abandoned.

        It however has no legal standing at all. You can't bring up the 'bro code' in court either.

        There's no such thing as abandonware. Yes, the software may have been "abandoned" in the technical sense of the word if the company that made it no longer exists and nobody has picked up the rights to it (although the chances of that are actually somewhat slim) - but that still doesn't mean you can freely legally obtain a copy. The software is still under copyright.

          That's why I said "may exist", because I don't actually know. If noone owns the copyright, I have no idea if it's legally okay or still illegal but nobody will own it to pursue you. Obviously as soon as someone gains ownership they can enforce the copyright.
          However I assume this is all merely academic as any product that has any sort of appeal would have people wanting to buy it on the cheap.

    Read the full article, cuz it was interesting. But dude, you fully get community bonus points for doing that.

    Eh, whether it's legal or illegal is only a concern if you get caught. I'm generally more concerned with whether it's right or wrong :P

    I think of Roms as a valid way of preserving history and myself as a historian.

    Sure, video games companies are increasingly catering to retro gamers by releasing some of our favourite titles through online marketplaces for their respective consoles, but the range is limited at best and the conversions often play poorly on the new systems.

    I'm not going to pot the writing but that's blatantly false.

    The range of titles isn't limited when you take into consideration how popular backwards compatibility was and still is. The Virtual Console has been around for ten years, and I can plug in controllers from any point in Nintendo's history with the right cable and play those titles perfectly. In some cases the experience is improved.

      Try to play the catalogue of Atari games, or any console except Nintendo, and the range of titles is extremely limited.

      What are you talking about? They're specifically NOT referring to backwards compatibility (which even then is typically limited to the one preceding generation, anything older can go jump), and only to the online reselling of those older titles. Which always has been limited, and always will be until it covers an older console's entire library. And third party solutions to getting the "original experience" with adapters or whatever falls outside of the scope of the Virtual Console service being provided, too.

        Virtual console is a much more "original experience" than ROMs on a PC, especially with Nintendo's new retro NES controller that plugs into its new NES classic or Wiimote.
        There is an insane amount of classic games on Wii U, both natively and in Wii mode, but of course ROMs are free so many will try and justify in their tiny minds how piracy is okay.

          In the case of the NES, at least. Personally I haven't delved into it much myself (after discovering that I just completely don't care about these digital games at all after my first few purchases, I guess these services just aren't for me - though mind you I don't much care for emulators in the same way either), but I do recall stories about how some games such as Star Fox (not sure if SNES or 64) had performance issues running on the VC. May be the kind of thing the article's referring to.

          In the end though there are still plenty of titles that just aren't available, some people have issues with the price or even being able to pay (not to mention regional availability), others find the split between Wii and Wii U libraries to be ridiculous. You don't need justification to choose an easier path, you just need a reason. Even if it's as simple as "because I can".

            Some VC are 50Hz, but all Australian cartridges for Nintendo and Sega were 50Hz anyway. Anyone with a 60Hz ROM cannot argue backup purposes. Of course they can argue from an artistic viewpoint that it's how the game was meant to be played, and I think that has some merit artistically.

              That whole thing weirded me out when that came up in the Wii's early life. Like... I don't know anyone who was aware of it being an issue back in the day, that's just how the games were. Nobody played American games, the internet wasn't exactly a thing, where did all this frothing at the mouth come from?

              Hearing the Super Mario Bros theme played at such a high pitch just sounds wrong anyway :P

    no one tells me i cant play my DVD of Storm Boy on my PS4 or PC, so why cant i play my mario NES game which i ripped to rom format on my PC?

      If your PC can play NES ROMs as well as DVDs ask that question again.

        flawless emulation and i have a USB nes adaptor so why not

    Have you guys heard about digital hype arcade? It's an SA based company that puts together arcade cabinets, pre loaded with emulators and games. So their whole business is illegal then? Maybe you should do a story in them

      Selling the arcade cabinets with a computer is fine, pre-loading it with emulators is iffy, pre-loading it with ROMs is opening themselves up to being sent a C&D.

      EDIT: was that the company that was cool or the company that was super dodgy?

      Last edited 17/08/16 3:02 pm

    The tricky issue with abandonware is *proving* who holds the copyright. A great case in point is the "No One Lives Forever" franchise. The reason why it has not been revived, despite a few attempts, is that no-one can actually work out who "owns" it. At this time Activision, 20th Century Fox, and Warner Bros all have some claim to the IP.... The lawyers are sitting on the sidelines salivating at the chance to actually fight it out in court, but the execs are not going to spend that amount of money on an old IP.

    and jpg and gif copies/stealing is rampant as....

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