“This is by no means a slam dunk argument,” said Bambauer, “But it’s by no means a silly one.” After all, Nintendo could argue that by emulating the game on your phone, instead of buying their official port of a game, they’re losing money.īut, while there is no precedent specific to gaming, there is in other markets. “In the music industry, everyone accepts that space shifting is legal,” Bambauer notes. And Bambauer is quick to admit it’s not a perfect one. Now, this isn’t black and white just a potential legal argument. “The argument would be there’s no market harm here that it’s not substituting for a purchase.” “You’re not giving the game to anybody else, you’re just playing a game you already own on your phone,” said Bambauer. He says he could imagine a few possible defensible scenarios. “If I own a copy of Super Mario World, I can play it whenever I want,” he notes, “but what I’d really like to do is play it on my phone or my laptop.” In this case, downloading a ROM could be legally defensible. “Fair use is a fuzzy standard, not a rule,” Bambauer explained. Then, according to Bambauer, you might be covered by fair use. That’s fairly clear cut, right? And it more or less aligns with the language regarding ROMs on Nintendo’s website, where the company argues that downloading any ROM, whether you own the game or not, is illegal.īut is there a legal defense? Possibly, if you already own a Super Mario World cartridge.

It’s no different from downloading a movie or TV show that you don’t own. “Let’s assume I have an old Super Nintendo, and I love Super Mario World, so I download a ROM and play it,” said Bambauer.

To begin: downloading a copy of a game you don’t own is not legal. The Possible Exception for ROMs: Fair Use But even ROMs exist in a bit of a grey area, according to Bambauer.

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