Rise of the Dead: The Ethics of Emulating Old Games

What is Emulation?

Emulation is a method that allows users to make a computer system behave like another computer system. A common example is using programs to run Windows on Apple computers.

Usage

Another popular usage is by video game enthusiasts who use emulation to classic games on modern computers. This allows people to play video games on their computers that were originally released for consoles that have not been commercially available for many years. Although this isn’t always the case, emulation software is typically created by hobbyists and released on the internet for users to download for free. Some emulators are made for current consoles; a prominent example being UltraHLE, a N64 emulator released while the Nintendo 64 was still Nintendo’s flagship console and still being sold by retailers. Creators of emulators for modern consoles argue that it is alright to do so for a multitude of reasons; such as it allows users to play console games on a PC, as opposed to with the system, and that is allows users to play games that are “region locked,” which prevents the game from playing on a console outside of the region the game was published for. For example, a copy of Super Mario Bros for the Wii sold in Europe would not work on an American Wii.

However, many emulators are made to emulate outdated, retro consoles. This allows users to play games that came out a long time ago on modern hardware when they would otherwise not be able to play them. Of course, some popular games have been remastered, or updated to play on modern consoles, or modern consoles have emulation built in to allow games from earlier consoles to still be played. An example of the former is Super Mario Sunshine, which came out for the GameCube in 2002 being remastered for the Nintendo Switch 18 years later, in 2020. An example of the latter is backwards compatibility on the Xbox X allowing console owners to play games made for previous Xbox consoles.

While fans have saved games from being potentially lost to time through emulation it draws up legal and ethical issues.

Ethics and Legal Issues

There’s a lot of grey area over legality. Emulators themselves are probably legal but downloading games for them is probably illegal. Although these games are not available for purchase anymore, they are still under copyright from publishers. If you have emulation software, it’s not illegal to put games you already own on them. So, if you have an old box of Gameboy cartridges in your attic, it wouldn’t be illegal to use them in an emulation program. It becomes illegal when someone downloads a copy of a game ROM (the game files) off the internet. This is what most people tend to do.

Classic games aren’t available anymore, so unless someone has a well-preserved copy of it from when they were younger laying around, the only way to get the game is to download ROMs off the internet. From a legal perspective, downloading a ROM is just like pirating a movie. They’re both under copyright, so even if you’re able to legally purchase the movie, but not the game, the acts are considered similarly illegal. There are arguments for fair-use that come out to defend downloading ROMs, but these have gone largely untested. These games are so old and of so little value to video game companies, that the negative publicity they’d get from sending DMCA takedown notices isn’t worth it to them, so the finer details of the legality of ROM distribution are left largely untested.

That’s the legality part, but what about the ethics of it? Many supporters of emulation argue that they are preserving what would otherwise be art that is lost to time. Many of the games that are available to download are games that will never be released again. Either the games were not successful enough that modern publishers will re-release them, or they were made by publishers that have since shut down. While games like Doom will be well preserved without the emulation community, many more games would drift off into obscurity and be forgotten without the preservation and archival work that the community does. Supporters of emulation also argue that emulation doesn’t harm the creators of the games they’re emulating. Many of the games they’re providing access to cannot be legally purchased anymore. The publisher doesn’t sell copies of the game, so the creators aren’t earning any money off the game whether it’s available to download off the internet. Also, if one could legally obtain a copy, it would be from a second-hand seller, like someone off eBay. The creators wouldn’t make money off this transaction either and when classic games do become available for second-hand sale they often sell for inaccessible prices, typically starting in the hundreds of dollars for a used copy. By making these games available for download, the emulation community is doing no harm to the original creators, and in fact helping them preserve a part of video game history that would have been otherwise lost.

As an avid video game fan myself, I wouldn’t illegally download a copy of the newest Assassin’s Creed game; they’re available for sale from Ubisoft and other first-party sellers, and they’ll work on my PC or my PS4, but I might want to download a copy of the 1982 game Joust. I can’t legally purchase the game anywhere, unless I’d like to shell out $2,500 for the original game cabinet and find space for it somewhere in my house, and I don’t own any of the other platforms it was originally released on; I’m much too young to have owned an Atari console (I wasn’t even born yet when Atari went out of business), and my modern PC runs Windows 10, not MS-DOS. So even if I were to obtain the Joust software legally, I can’t play it, unless I also have an emulator. It then makes a lot of sense in the eyes of the emulation community for me to have an emulator and download the ROM of the game for free on the internet. I don’t want to pirate the game just because I don’t want to pay for it. I literally cannot play it without emulation. Joust is considered one of the best games of all time and it would be a real shame if it was forgotten because no one can play it anymore.

While emulation is on shaky legal footing due to copyright issues, with its passionate, fanbase emulation doesn’t seem to be going away anytime soon. And maybe that’s for the best, as it offers a way for people to re-experience and preserve classic games from their childhood or younger players a chance to discover fantastic games made way before they were even born.

By Alex Brandeau 

Further reading:

TechRadar, Are game emulators legal?

How-To Geek, Is Downloading Retro Video Game ROMs Ever Legal?

Tom’s Hardware, Yes, Downloading Nintendo ROMs Is Illegal (Even if You Own the Game)

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