Is It Legal To Download Game Files

There’s nothing quite like reliving your childhood with your favorite retro games, but are emulators and ROMs legal? The internet will give you a lot of answers, but we talked to a lawyer to get a more definitive answer.

Emulators are legal to download and use, however, sharing copyrighted ROMs online is illegal. There is no legal precedent for ripping and downloading ROMs for games you own, though an argument could be made for fair use.

We have compiled a list of 10 Best Websites to download paid PC games for free and legally. Take the legal way or the illegal way to download games. 113,000 users and give away legal games. How do I legally obtain ROMs? (self.emulation) submitted 6 years ago by shyguy95. As I understood, it's perfectly legal to download games you already own. If you have a PSX/PS2 disc, you can run it off your computer, no ISO rip needed (I think it works with Xbox and Gamecube as well). Plus, most games people rip are out of print, if that's.

To find out, we asked Derek E. Bambauer, who teaches Internet law and intellectual property at the University of Arizona’s College of Law. Unfortunately, we discovered that no definitive answer truly exists, since these arguments have yet to be tested in court. But we can at least bust some myths that are floating around out there. Here’s what you need to know about the legality of emulators and ROMs in the United States.

Emulators Are Almost Certainly Legal

Let’s start with the easy stuff. Despite what you may have heard, there’s not a lot of question as to whether emulators themselves are legal. An emulator is just a piece of software meant to emulate a game system—but most don’t contain any proprietary code. (There are exceptions, of course, such as the BIOS files that are required by certain emulators to play games.)

But emulators aren’t useful without game files—or ROMs—and ROMs are almost always an unauthorized copy of of a video game that’s protected by copyright. In the United States, copyright protects works for 75 years, meaning no major console titles will be public domain for decades.

But even ROMs exist in a bit of a grey area, according to Bambauer.

The Possible Exception for ROMs: Fair Use

To begin: downloading a copy of a game you don’t own is not legal. 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. “That’s a violation of copyright.”

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.

But is there a legal defense? Possibly, if you already own a Super Mario World cartridge. Then, according to Bambauer, you might be covered by fair use.

“Fair use is a fuzzy standard, not a rule,” Bambauer explained. 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.

“You’re not giving the game to anybody else, you’re just playing a game you already own on your phone,” said Bambauer. “The argument would be there’s no market harm here; that it’s not substituting for a purchase.”

Now, this isn’t black and white; just a potential legal argument. And Bambauer is quick to admit it’s not a perfect one.

“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.

But, 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. You can see where this gets complicated.

What If You Rip Your Own ROMs?

A common argument online is that extracting a ROM from a cartridge you own is perfectly legal, but downloading ROMs from the web is a crime. Devices like the $60 Retrode let anyone extract a Super Nintendo or Sega Genesis game over USB, and state their legality over downloads as a key selling point. After all, ripping a CD you own with iTunes or other software is broadly considered legal, at least in the United States.

So is ripping a ROM you own any different than downloading one? Probably not, says Bambauer: “In both cases what you’re doing is creating an additional copy.”

Now, Bambauer could imagine constructing an argument about how one is different than the other, and he admits the optics are different. But he doesn’t think the two situations are all that distinct, legally speaking.

“I think if the argument is, if I were a skilled engineer, I could extract this and have a copy,” said Bambauer. “If we assume, for a moment, that if I did that it would be fair use, then it shouldn’t be different.”

Sharing ROMs Is Unambiguously Illegal

This fair use argument is potentially very wide reaching, but there are limits. “The trouble comes when it’s no longer just me having a copy, it’s giving other people a copy,” said Bambauer.

Is It Legal To Download Game Files For Pc

Consider the entertainment industry. The RIAA and MPAA have found more luck going after the sites and people sharing music, rather than the downloaders. For ROMs it largely works the same way, which is why sites that share games are so frequently shut down.

“Once you’re distributing a ROM, most of the people downloading it probably don’t have legal copies of the game,” said Bambauer. “Then it is market harm, because Nintendo should be able to sell to those people.”

Because of this, it might be a good idea, even if you own a game, to avoid downloading ROMs from peer-to-peer networks, where you’re sharing a copy of the game as you download it.

What If a Game Isn’t Currently On the Market?

Many people argue online that if a game isn’t currently available on the market, downloading a ROM is legal. After all: there can’t be market harm if a game is not currently for sale in digital form.

That argument might not be airtight, according to Bambauer.

“On the one hand, there’s no amount of money that will let me get a legal copy of this game,” said Bambauer. “On the other side of the argument, there’s what Disney does.” Disney’s strategy is to put classic movies “in the vault” for extended periods. Instead of leaving films constantly on the market, they periodically re-release them, which builds up demand and increases sales when that release actually comes.

Video game companies could argue they’re doing the same thing with currently unreleased games, and that ROMs are driving down the potential market value. “It’s a close case,” says Bambauer, “and hasn’t been tested a lot.” But they could make that argument.

At the same time, he notes, a game not currently being on the market could potentially be a useful part of a defense, particularly if you’re downloading a game you already own.

“I couldn’t buy a copy anyway, and I already own a copy,” said Bambauer, again hypothetically. “So it’s kind of like owning a CD, and ripping it on my own.”

All of This Is Mostly Hypothetical

You’re probably starting to see a pattern here. ROMs are such a grey area because there are potential legal defenses on both sides—but no one’s truly tested these arguments before. Bambauer couldn’t point to any case law specifically about video game ROMs, and was mostly just extrapolating from other areas of Internet copyright law.

If one thing is clear, though, it’s this: if you don’t own a legal copy of a game, you don’t have any right to download it (yes, even if you delete it after 24 hours, or other such nonsense).

Image credit: LazyThumbs, Fjölnir Ásgeirsson, Hades2k, Zach Zupancic, wisekris

Illegal download of copyrighted material in Germany, the basic stuff

What am really guilty of ?

German laws concerning file-sharing are pretty strict and clearly condemn any kind of file sharing activity related to copyrighted content. While both download and upload are condemned by law, it’s really in reality the uploading part of the process that will be rewarded with a warning letter. Using services like torrent clients makes you automatically share the file you are downloading. This is why torrent and other P2P clients users receive a lot of letters from German lawyers.

Since April 2017, users of illegal streaming services (also broadcasting of live events) can also get in trouble because of a decision from the European Court of Justice. It established (here) that users of such services are indeed acting unlawfully. However, unlike P2P, it’s very difficult to identify users of such platforms as IP adresses are often not stored by these platforms in the long-term, making the enforcement unlikely. Only premium users can easily identified.

On the document, you might see a reference to the set of laws dealing with copyright infringement in Germany; “Urheberrechtsgesetz” or “UrhG”. The article making it illegal is § 19a UrhG.

Who is responsible and who should pay?

German courts have stated that the owner of the internet access is in theory responsible for any wrong-doings happening on that network. They are responsible for securing it so other people don’t use it to download copyrighted content in Germany. This might bring up tensions if you are living in a WG and it’s not your name on the internet provider’s contract. In that case, the owner can “discharge” the fault onto the real culprit to be cleared of all charges if necessary.

How did they could identify me and find my address?

Those German law firms sending warning letters usually hire specialized third-party services that are scanning P2P nodes and clients, recording IP adresses that are currently downloading illegally in Germany. They are then authorized by law to ask your internet provider to disclose any information linked to that IP adress. This is how they obtained your private details.

Again, this is why law enforcement is really much more difficult to apply for illegal streaming services users. IP adresses are not stored on servers on the long-run and if the police should request a list, it’s only after a considerable amount of time. Beware however premium users; if you are paying a fee on one of those platforms, your IP will definitely be stored on the server, thereby increasing the risks of getting caught.

If you want to protect your traffic and use all services privately, you can get a VPN that will hide everything from anyone else. You can use NordVPN for example, which often considered one of the bests out there, especially since streaming works well with it and you connect up to 6 devices with one account (switch to English in the footer if needed).

Do they really have the right to fine me so much? Can it really go to court?

There is no clear set of rules that puts a figure on the fine you have received. It might be 900€ per illegally downloaded song in Germany or 2000€ for downloading a movie in Germany. The figure is entirely up to them. We will see later how it is possible to bargain it down a little. Although they do threaten to take this to court, it’s relatively quite rare it happens. It mostly an argument to scare you into paying fast and without asking any questions.

However, make sure to see the difference between the different fees mentioned in this document. There are fees for sending you this Abmahnung, the contract penalty & the fine mentioned as repair for their clients. Also note that a law passed in 2013 should limit Abmahnung and legal claim fees to 150€ & 450€ respectively.

Offense repairs on streaming cases are much lower, making it less profitable for law firms to pursue; legal claim fees remain the same as for P2P cases but the fine per film can only be 5 to 10€.

Is this a real German law firm and not a scam? Do they really work with the copyright holders?

Now this is a little tricky because it is true that some scam letters (e.g from non-existing “Kroner & Kollegen” law firm) have been sent around and they are not entitled to represent the copyright holder. However, most often than not, the warning letter for illegally downloading copyrighted content is a real one coming from a real law firm who represents company like Viacom, Sony, 20th Century Fox, etc.

Here are some law firms sending cease and desist letters in Germany (hat-tip to Raychenon.com):
Auffenberg, Petzhold, Witte; Baumgarten & Brandt; Bindhart , Fiedler, Zerbe; CSR; Daniel Sebastian; Denecke Haxthausen & Partner; Fareds; Johannes Rübenach; Kornmeier & Patner; Lihl; Lutz Schroeder; Marcus Meier; Marko Schiek; Negele; Nümann und Lang; Paulus; Philipp Marquort; Rainer Munderloh; Rasch; Reichelt, Klute, Aßmann; Sasse und Patner; Schalast & Patner; Scheuermann,Westerhoff, Strittmatter; Schutt, Waetke; SKW Schwarz; U+C; Vahrenwald & Kretschmer; Waldorf Frommer; WeSaveYourCopyrights; Winterstein; Zimmermann & Decker.

Rule number 1: Don’t panic and don’t send anything back

What is this “Unterlassungserklärung” document and what should i do with it?

Together with the warning letter establishing your identity and the content, there is another document called “Unterlassungserklärung”. This is the German equivalent to a cease and desist letter that the law firm wants you to sign to prove that you recognize yourself to be guilty of the accusations. Do not sign this document and do not send it back! By doing so, you would give more legal ground against you and would have to pay.

Cease and desist letter for Downloading Deadpool (source: Quora.com)

Now tell me what can i do about this warning letter

There are different courses of action you can take at this point and i guess it depends on how bold you are and how good you are dealing with a possibly nerve-racking situation.

1- Pay-up right away

Let’s be honest now: those letters are an attempt at scaring you off and pressuring you into paying the full amount. This is even more impressive for a foreigner that doesn’t understand German completely. You shouldn’t panic and pay-up without asking any questions as there is room for negotiation. After all, you have to remember that it is not the government sending you those letters; the fine hasn’t been set by law.

2- Do nothing

While curling yourself in a ball and hoping that it will go away might not seem like the mature and adult thing to do, this reaction might still have a few arguments for it. Reacting this way is basically counting on the weaknesses of the system; those German law firms are very busy you see. They send hundred of thousands of warning letters a year to the average Joe for illegally downloading movies in Germany. They know very well that they won’t be able to handle each individual case manually so they might no simply follow-up, should you not reply to their first Abmahnung.

Then again, there is also a good chance that you might be part of the chosen ones for whom it doesn’t go away. If they do follow-up, additional legal fees might occur and it can be enforced. This is a risk you take if you pick this option.

Doing nothing is a viable option but it can back-fire at you

3- Seek legal counselling

They come at you with legal weaponry? It’s then maybe time to gear up with some of your own and get in touch with a lawyer. Judging from the cases i have heard around me and in forums around the internetz, this seems to be a popular option. It’s a good compromise between costs, stress & time spent dealing with a fine for illegal file sharing in Germany. Sure, it’s not cheap but you might in turn save hundreds of euros for negotiating a cheaper fine or even not paying it all.

What a lawyer will do is to send a modified cease and desist letter in your behalf that basically says that you are sorry for what happened but you still don’t recognize that you are guilty and that you won’t do that in the future.

Fees for doing so with German lawyers specialized in copyright infringement cases can vary. It’s really worth it in a lot of cases. If you don’t know where to start your search, Jurato is a good option. It’s a platform that connects you with recognized specialists in their fields. Payment is secured and all communication made in English.

I wish you good luck in fighting against the odds. I hope this post helped you understand your situation.

Also, if you want to use your internet access as you want, don’t forget you can fully hide your traffic with a good VPN like NordVPN. Considered one of the bests on the market, safe and easy to use, it works well for this kind of use too.

Edit 1: This question was asked many times in the comments:

“I used torrents or streamed this piece of content [insert movie or music here], and i didn’t know about the rules in Germany! What are the chances to be caught and receive a letter?”

Answer: There are no rules defining the probability that you could get caught, and also no way to tell the delay with which you can receive this letter. Only time can tell.

Edit 2: This question was asked many times as well:

Free Game File Downloads

Is It Legal To Download Game Files Free

“I used another service download content (Gdrive, WeTransfer, some random platform, etc), what are the risks?”

Answer: This post is about torrenting and streaming. I cannot answer about any other means or technologies.

Disclaimer: this post is purely for informative purpose about what to do when caught illegal file sharing in Germany. It doesn’t replace the counselling for a professional attorney. Please make sure you fully understand your situation before taking any action. Better safe than sorry <3 <3 <3.

Sources: 1, 2, 3, 4

Also a big thank you to Oliver from the Frankfurt Expat blog, whose post on the legality of streaming helped me fine tune some details of this article.
If you are living near or around Frankfurt, check his blog out, it’s a good read to discover the city.