Alexander Panetta
Staff Editor, Delaware Journal of Corporate Law, Volume 50
I. Introduction
If you have ever desired to go back and play video games from your youth, you may have come across the possibility of emulating those older games on your computer or phone. Emulation, in computing terms, is “the ability of a computer program in an electronic device to emulate (or imitate) another program or device.” In the case of video games, emulation requires both an emulated platform of the console which you desire to emulate games on and a digital copy of the game software you desire to emulate.[1] The legality of casual video game emulation has been in a legal grey area since the early 90’s. While case law has expanded on the circumstances in which emulation of video game software is permissible, there are still many technicalities that have not yet been resolved by United States courts.[2] This uncertainty coupled with a rise in popularity of emulation and actions being taken by video game companies to prevent emulation of their systems leaves us with a situation that could use further clarification from the courts.
II. Historical Background of Emulation
Around the time of fifth generation consoles, the largest corporations within the industry (Sony, Sega, and Nintendo), moved to stop consumer emulation in order to protect their intellectual property interests and to prevent a decrease in sales of their hardware/software.[3] In 1992, Sega Enterprises, Ltd. filed suit against Accolade, Inc. for reverse engineering its software in order to produce their own cartridges that would be compatible with their Genesis game system.[4] Accolade had not acquired a license from Sega to develop games for its system. While the two companies were in talks to acquire this license, Accolade pulled out after it had discovered that the license deal would have required the company to develop games exclusively for the Sega’s Genesis system at the time.[5] After purchasing their own Genesis console and several game cartridges to reverse engineer the machine, Accolade decompiled the machine-readable object code into human-readable source code so that they could create their own games for the Genesis console.[6] At trial, the District Court enjoined Accolade from disassembling, using, or modifying Sega’s copyright-protected code; developing, manufacturing, distributing, or selling Genesis-compatible games; then issued an order for recall of all of Accolade’s infringing games that were already produced and sold for the Genesis system.[7]
On appeal, the Ninth Circuit Court found that Accolade’s argument that disassembly of object code in order to understand the functionality of the code was a fair use under section 107 of the Copyright Act of 1976 valid.[8] In order to reach that determination, the court reviewed the four-factor test for fair use: (1) the character and purpose of the use; (2) the nature of the copyright protected work; (3) the amount and substantiality of the portion of copyrighted work used; and (4) the market effect of the use of the copyrighted material.[9]
Under the first factor, the court found that the purpose of the use was to understand the “functional requirements for Genesis compatibility,” and that it was doing so to the benefit of the public.[10] Under the second factor, the court found that by the very nature of computer code, there are bits of code that must be substantially copied in order to function properly, and that object code cannot be observed without first decompiling it (thereby copying it), so that it can be read.[11] Under the third factor, the court found that the factor was of little weight and that the portion of code directly copied into Accolade’s compatible cartridges was merely 20 bytes of data of the 500,00 to 1,500,000 bytes of unique code present, hardly a substantial portion.[12] Finally, under the fourth factor, the court found that there was no basis for assuming Accolade’s games would affect the market for Sega’s officially published titles and Sega’s attempt to prevent competitors from selling products on their system was a factor in finding in Accolade’s favor.[13] Ultimately, Sega v. Accolade set the stage for permissible reverse engineering of other video game systems’ code for understanding and mimicking functionality of the system.
In July of 1998, the Ninth Circuit Court of Appeals reviewed Sony Computer Entertainment, Inc. v. Connectix Corp. By applying the logic set forth in Sega v. Accolade, the Court reached the determination that Connectix’s copying of the PlayStation 2 BIOS to create a platform to play PlayStation 2 games on a PC was protected under fair use doctrine.[14] Furthermore, the Court of Appeals for the Ninth Circuit’s holding in Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., has been cited as establishing that the obtaining of a system BIOS for a console is fair use so long as the user legally purchased a copy of the console.[15] Together, these cases make up the bulk of the case law cited as establishing the legality of developing emulators for a video game console. However, as stated before, the emulator also requires a copy of the game software you would like to emulate–and the legality of obtaining those copies is where things get muddled.
III. Emulators are Real, but are the Games?
Obtaining digital images/copies of game software–typically referred to as a ROM–is an area of emulation that has virtually no precedent in the law.[16] That being said, it is argued that if you obtain a copy of game software from a legally obtained cartridge by ripping the ROM yourself, you are in compliance with fair use so long as you don’t distribute that file to anyone else.[17] However, most ROMs are not obtained via copying of owned cartridges and discs and are instead obtained through various sites online as the technology required to obtain copies from cartridges is hardly commonplace. Acquisition of ROMs from third-party sites is plain piracy–although acquisition of these same ROMs if one owns a legally purchased/obtained copy of the software is even further harder to predict as none of these scenarios have been tested in court.[18]
In the event that such a case makes its way to Delaware courts or the Federal Third Circuit, the most likely outcome is that the court will apply the fair use doctrine and consider the four previously discussed factors. Under the character and purpose of the use, if one copies software for the sole purpose of using it themselves, it is more likely than not to be afforded fair use protection. Similarly, if the use of the copied ROM is only personal, it is unlikely to affect the market. This is unless the company is currently in the business of reselling those games currently, in which case the market impact of this process is at the discretion of the courts and could be found contributing to reduced sales of a “remastered” or redistributed older game currently available to consumers.[19]
Regardless, it is likely that a clear answer will come out on the subject of emulation and obtaining ROMs sometime in the near future. Nintendo, who has historically been litigious in these matters over the course of the last 30 years, recently took down emulators for their most recent video game console the Nintendo Switch by way of cease and desist letters and undisclosed settlements with the developers of the software.[20] The Steam Deck and ASUS ROG Ally, two newer competitors on the gaming market which are handheld personal computers with built-in controllers, have brought the conversation over emulation to the forefront again as mobile emulation has become more accessible to those devices than any other traditional console was before.[21] To top it all off, Nintendo’s lawyers recently stated that emulators are completely legal, making some of their prior behaviors seem to be without cause.[22] At some point, clarification on these untested areas of law needs to occur, and when it does hopefully it will be to the benefit of consumers.
About the Author
Alex is a third-year law student at Widener University Delaware School of Law, a Staff Editor for Volume 49 and Volume 50 of the Delaware Journal of Corporate Law, and a member of the Transactional Law Honor Society. Alex graduated from Temple University in 2018, earning a bachelor’s degree in Communication Studies. Alex currently lives in Philadelphia with his partner Ren and works at the State of New Jersey’s Division of Rate Counsel as a Law Clerk. Next year, Alex will be clerking for the Honorable Judge Kaplan in Middlesex County, New Jersey. In his rare free time, Alex enjoys playing video games, Dungeons & Dragons, Magic: The Gathering, and board games with friends and family. After law school, Alex plans to work in the field of Intellectual Property in either New Jersey or Delaware—hopefully in the realm of digital entertainment.
[1] Emulator, Wikipedia, https://en.wikipedia.org/wiki/Emulator (last visited Feb. 7, 2025).
[2] See generally Understanding the Legal Landscape of Video Game Emulation, McNeelyLaw (Sept. 5, 2024), https://www.mcneelylaw.com/understanding-the-legal-landscape-of-video-game-emulation/.
[3] Wikipedia, supra note 1.
[4] Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1514–15 (9th Cir. 1992), as amended (Jan. 6, 1993).
[5] Id. at 1514.
[6] Id. at 1514–15.
[7] Id. at 1517.
[8] Sega Enterprises Ltd., 977 F.2d at1520.
[9] Id. at 1522.
[10] Id. at 1522–23.
[11] Id. at 1525–26.
[12] Sega Enterprises Ltd., 977 F.2d at1516, 1527.
[13] Id. at 1523–24.
[14] Sony Comput. Ent., Inc. v. Connectix Corp., 203 F.3d 596, 609–10 (9th Cir. 2000).
[15] See Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 968 (9th Cir. 1992), as amended (Aug. 5, 1992).
[16] See generally ROM Image, Wikipedia, https://en.wikipedia.org/wiki/ROM_image (last visited Feb. 7, 2025). Notably, ROM really only refers to older cartridge-based game images, where the correct terminology for an image from a disk/optical drive system is an ISO, but the two are often used interchangeably by enthusiasts online.
[17] Justin Pot & Dan Helyer, Is Downloading Retro Video Game ROMs Ever Legal?, How-To Geek, https://www.howtogeek.com/262758/is-downloading-retro-video-game-roms-ever-legal/ (Sept. 26, 2024).
[18] Id.
[19] Re-releasing older titles on newer hardware, after either remastering or completely redeveloping with new technology, is a current trend in the video game industry which further complicates the market impact element of fair use doctrine for emulation of older games. Additionally, several companies now offer the ability to emulate older titles on their newer systems. Should this issue ever be presented before a U.S. court, I expect these considerations to be a significant part of the market impact analysis. If a consumer knows that they can emulate an older game on their own for free, why would they ever pay money for a re-released version of the game absent significant improvements?
[20] Hayley Williams, Nintendo Lawsuit Shuts Down Switch Emulator Yuzu and 3DS Emulator Citra, GameSpot (Mar. 4, 2024 10:48 PM), https://www.gamespot.com/articles/nintendo-lawsuit-shuts-down-switch-emulator-yuzu-and-3ds-emulator-citra/1100-6521589/; Saqib Shah, Why Did Nintendo Switch Emulator Ryujinx Shut Down and What Are the Alternatives?, Evening Standard (Oct. 2, 2024), https://www.standard.co.uk/culture/gaming/why-nintendo-switch-emulator-ryujinx-shut-down-what-alternatives-b1185447.html.
[21] See EmuDeck: Emulation Made Easy, Emudeck, https://www.emudeck.com/ (last visited Feb. 7, 2025).
[22] Nick Fernandez, Nintendo Just Admitted That Emulators Are, Technically, Legal, Android Auth. (Jan. 16, 2025), https://www.androidauthority.com/nintendo-emulators-legal-3517187/.
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