Can You Legally Download Games? We Asked A Copyright Lawyer

In this episode, we sit down with a trademark and copyright attorney to discuss the legality of making your own video game backups from games you physically own, downloading games from the internet, and enforcement of copyright and trademark dependent on whether or not the original company that produced said content still exists, and more.

One position I often get criticized for is my take on emulation, piracy, and downloading video games from the internet.

"What harm is it?"

"Who's getting hurt?"

"The publisher already made their money so why does it matter?"

These are all arguments I have heard over the years. I personally do not download and play games off of the internet, I don't believe that it is right, I believe it is a violation of trademark and copyright, and I have a moral issue with stealing content that I did not pay for. These are my personal opinions and beliefs, and how I conduct myself. Others, however, have taken issue with this, assuming that I am gatekeeping or otherwise trying to prevent them from enjoying reliving their childhood. Nothing could be further from the truth, but I wanted to get some legal expertise involved in this. As such, we actually interviewed a legal expert to ask some questions too.

Myth: If a company is no longer in business the copyright is no longer enforceable and I can download that content.

Truth: Whether a company that produced a game or not is still in business is irrelevant to the enforcement of legal copyright enforcement. As David mentioned, someone probably purchased the assets of that company out of business or filed for bankruptcy. For example, simply because Hudson no longer exists does not mean no one owns their copyrights anymore. On the contrary, Konami bought them, which is why Konami was the one who released the TurboGrafx 16 Mini.

Myth: The company isn't producing the game I want to play any longer so it's perfectly okay to download the content.

Truth: whether or not a copyright holder decides to cease production and sale of a copyrighted work has no factor regarding the legality or the enforcement of the copyright. Simply because someone ceases the distribution of copyrighted works does not make the copyright invalid.

Myth: retro games are too expensive now, so it's okay to just pirate them off the internet.

Truth: Things are more expensive today, nothing you can do about that. Just because something is expensive does not make it legal to download the software and use it as you see fit.

Myth: I used to own a copy of Super Mario Brothers, so I can download a copy of the ROM and play it and be okay

Truth: No, you can't. If you make a backup of a game, you have to actually make a backup from the game you physically have possession of. You also must maintain ownership and possession of the original copy that you backed up. For example, if you had a ROM dumper and dump the ROM of every Nintendo game that you own, and then sold those games, technically you are violating copyright law.

Myth: The publishers already got their money, So my downloading games from the internet doesn't hurt anybody.

Truth: You potentially hurt people now and in the future. We've seen in recent generations of gaming that manufacturers have gone back and re-released collections of older games on new platforms. Some individuals own and run video game resale stores that buy, sell, and trade retro video games. You are hurting those people and those businesses.

Myth: You're just a gatekeeper and don't want me to play my games
Truth: I don't care how you play your games. I don't care how you get your games. I'm explaining why I do things FOR ME. You can do whatever you want. You can choose to ignore copyright law, or you can choose to follow copyright law. I don't care, it doesn't affect me. And my opinions and moral belief should have no effect on you.

Myth: The online store that sold the digital version of the game no longer sells the game, so I can just download it.

Truth: If the method of distribution that you purchased your games through previously no longer exists, you have no legal right to download content from any other source. You may not like it, and this is one of the reasons why I prefer owning physical versions of games versus digital because this type of thing can happen. Look at the Wii, Wii U, and 3DS eShops, they are all done selling new content. On the Wii U and the 3DS at least you can still re-download things for a while, but you can't even do that with the Wii at this point.

I hope this explains to some people why I don't download games, also how I do support making legal backups of your video game library. In the end, you do what you feel is right by you, I'm going to do what I feel is right by me, and I'm just going to go have fun and play the games that I physically own.

#ROMDownload #VideoGames #Copyright