We all know ROMs. They are old popular console games that are downloaded to play on a PC program called an emulator.
What they are
In gaming speak, ROMS are old console games originally stored in read-only cartridges distributed by game vendors such as Nintendo, Sega, Sony etc, before the advent of modern storage media such as cd, dvds etc. Roms can also be found as image files in obsolete format.
Originally these game titles were only to be played on the console they were designed for: gameboys’, Segas’ etc. Of course, your normal computer cannot read the original ROMS without a special adapter. That is basically the role of emulators: specially written programs to imitate (emulate) the functioning of the original console.
This allowed nostalgic gamers to play onto their PCs’ the old titles, without the help of the console, sometimes out of market.
As ROMS were only to be played on the vendor’s hardware, a copyright issue arises as to whether it is violating the vendor’s right when a gamer downloads these onto their pc, either because the original console is no longer on sale or simply out of personal preference?
What the law says
The game vendors EULA (end user license agreement) falls within the provision of copyright law, 17 USC 106:
“Subject to sections 107 through 120 , the owner of copyright under this title has the exclusive rights to do and to authorize any of the following …”
2) to prepare derivative works based upon the copyrighted work etc.”
This is the position of console vendors such as Sony or Nintendo, who totally prohibit the copying and storing of “derivative works”, including ROMs.
Changing the format from the original cartridge to a pc format therefore violates the vendor’s rights to prepare derivative works under 17 USC 106.2.
But, but, but, this right is not absolute: the act says ” Subject to sections 107 through 120 …”. The vendor’s right to his product is limited. That is in fact why Nintendo and Sony have to come up with a EULA that completely prohibit the copying and storing of their titles onto another format than the original.
Obviously some forms of “derivative work” are not only acceptable under the act, but in some cases, essential for the intended use of the program in question. We mention here a Microsoft windows installation Cd that has to be installed onto your pc (basically copied).
Coming back to ROMS…
Which takes us back to the question: how can nostalgic gamers find legitimate ways to copy and store old unplayable games onto their pc?
There are many theories:
1. the backup theory
2. public fair use
3. development purposes
4. Operational adaptation etc.
But these are old defenses that hardly stand scrutiny given that most ROMs these days are downloaded off the internet and do not exactly fall into the ambit of defenses 1, 3 and 4.
Remains defense 2, public fair use.
In the supreme court case, Sony Vs Betamax, it was argued that personal use, no commercial use constituted a legitimate defense to reproduce copyrighted material. To quote from the judgment, ” Any individual may reproduce a copyrighted work for a “fair use;” the copyright owner does not possess the exclusive right to such a use.”
This basically means that as long as your ROMS are copied and stored for personal use meaning with no commercial intention. Of course the onus would be on the gamer to prove that their use is strictly personal and limited to public fair use.