It’s generally only a matter of time before someone discovers emulation, the ability to run old software on new systems. And since people can do it without necessarily paying for the software they run, someone may wonder, is emulation legal?
Emulation certainly tends to be a gray area. You can do it legally, but not everyone does. And there are a good number of misconceptions about what you are and aren’t allowed to do. But plenty of emulation happens all the time, without breaking the law at all.
What emulation is
Emulation isn’t a new practice at all. It existed in the 1980s, and people asked about it all the time. A 1980s article I read about emulation said any computer can emulate any other computer, as long as speed isn’t a consideration. That truism holds today, but speed isn’t as much of a consideration as it was 30 years ago.
The most successful emulators in the 1980s required some hardware to make it work. The compatibility modules that made Coleco and Mattel game consoles compatible with the Atari 2600, or the Commodore 64 compatible with the Apple II+, all included hardware to make the emulation fast enough. It wasn’t until the Amiga started getting Mac emulators in the late 1980s that software-only emulation became practical. Legally, it was often problematic. Atari sued Coleco for creating its Atari 2600 compatibility module. Apple couldn’t keep people from running Mac software on their Amigas, but they made it really difficult to get their hands on the necessary ROMs to make it work.
Over time, emulation became more common. By the early 1990s, systems were fast enough that emulation purely through software became practical. I ran Atari 2600 and Commodore 64 software on my 486 in college quite a bit.
Modern emulation is just translation. It’s a layer of software that sits in between your new computer and your old software and translates the instructions the old computer understood into new instructions the new computer understands. But it still sometimes remained controversial.
The Connectix controversy
In 1999, Connectix saw an opportunity. Apple’s Mac computers were starting to see a resurgence, but there was a dearth of games for them. Connectix created a product called Virtual Game Station that allowed Sony Playstation titles to work in a Mac. Sony sued and received an injunction, but eventually lost. So Sony killed the product by buying it outright and taking it off the market.
For whatever reason, Sony saw the emulator as a threat to its Playstation console. And while it may have cut into Playstation sales, Sony sold the consoles themselves at break-even or even a loss. The money came from royalties on the software titles sold. Many people argued at the time that Sony would have been better off just letting people emulate the Playstation and collecting the royalties.
But Sony did its thing, so Connectix put its experience to work emulating other computer systems rather than game consoles, and high-profile emulation in commercial products fell by the wayside.
Emulating past products ended up being far safer. You name a system, you can probably find something that emulates it. Even the Playstation, at this point.
Patents, copyrights, DRM, and Fair Use
There are several potential legal pitfalls with emulation, and not just copyright. In some cases, re-implementing a system in software could violate its patents. This isn’t a problem on systems that are 17 years old or older.
The bigger issue, though, is copyright. Most people know that copying something without paying for it is usually illegal. Even if the software is no longer commercially available for purchase, copyright laws as they exist today don’t have a provision for them to go into the public domain until 95 years after their release. “Abandonware” isn’t a legal concept. Emulation isn’t illegal, but piracy is.
That said, once you’ve paid for software, you have the right to use it. And the software publisher, the company who made the computer or console it originally ran on, or anyone else has little say in that matter. As long as you retain the original copy of the software, nobody can say you pirated it. Ideally, you would transfer the software to the new system, but I know you won’t do that. Technically, downloading software you own physical copies of isn’t legal. From an ethical standpoint, you’re OK, given that the original author and publisher got paid when you made the purchase.
You can look at emulation like ripping audio CDs to MP3s to listen to them. You’re changing the format. Retain the CDs and you’re legal. Sell the CDs and keep the copies, and then you aren’t. Selling the existing copy while retaining a digital copy is piracy.
The problem with old copyrights
The problem with copyrights that may be three or four decades old is tracking down ownership. In many cases, the company who published them went out of business, or has been acquired several times, and it’s not clear who owns what anymore. Sometimes the author knows, but frequently not. And while some authors enjoy going to conventions and other retro-themed events, some of them faded into obscurity. Larry Miller, author of Activision’s Enduro for the Atari 2600, is one example.
In some cases it’s clear who owns the copyrights, but the publisher just isn’t interested. The Super Famicom game Fighting Baseball has a cult following thanks to its tortured names, but is owned by EA, who doesn’t want to bother with it. As far as they’re concerned, it’s not commercially viable, so it languishes in obscurity.
There was a time when old abandoned copyrights fell into the public domain, but that started changing in the 1970s. Computer software that is no longer commercially viable is a significant gap in copyright law and has been for some time, but without a Fortune 10 company pushing for change, a gap in the law that only affects a few thousand people isn’t likely to get addressed.
Of course, if you own a physical copy of the title, the point is moot. Everyone got paid and nobody gets hurt. Transferring the code to a new system so you can continue to run it falls into the legal concept of Fair Use.
Getting your old software onto your new computer for emulation
Reading old cartridges and computer media can be difficult. The formats usually aren’t compatible, and you need specialized equipment to read them. And there might be some DRM going on to make it more difficult to copy the media. I don’t know anyone who’s ever read their Atari cartridges into their PC. They downloaded them from a sketchy web site. The same goes for every other platform of old.
In some cases, a publisher will license the rights to a bunch of vintage software and sell you a bundle that includes everything you need. Cloanto’s Amiga Forever package is one example. This type of emulation is perfectly legal.
Another case of legal emulation is the Nintendo Virtual Console, which it shipped with the Wii. For a small fee, you could download vintage games and play them. This, of course, was sanctioned by the publisher and therefore legal.
If you want to be really safe, read images yourself of cartridges you actually own using a contraption you build with an Arduino. Here’s one such example.
Where to find emulators
Emulators are usually written by volunteers interested in preserving the old hardware and software of the past. Generally they run on all major operating systems, including Windows, Mac OS, and even Linux. Generally the way to find them is to just search for them.
Ideally, download the emulator from your operating system’s official app store or from the developer themselves, not from a file hosting clearinghouse that may inject other badware into it.
You can build a rather nice emulator out of a Raspberry Pi. A Raspberry Pi can struggle to emulate the N64 generation and newer game systems at high speed, but it does a very nice job of emulating game systems that predated the mid-1990s. For best results, get the newest and fastest model Raspberry Pi, currently a Raspberry Pi Model 3 B+.
Older systems run fine even on the original Raspberry Pi model. I’ve emulated 8-bit systems, such as the Atari 2600 and Nintendo NES, on the original Raspberry Pi with outstanding results.
What about selling emulators?
Selling emulators can become problematic. It’s not at all uncommon for people to offer MAME cabinets, modded consoles, or other premade emulators for sale via Craigslist or other means. There is no problem with selling your workmanship. The problem becomes when you bundle the old software itself. That’s a copyright violation, and you run the chance of getting prosecuted if you do it. While I haven’t heard of cases of people being prosecuted for downloading old software for their personal use, I have heard of people being prosecuted for reselling preloaded emulators.
If you are going to sell an emulator, be sure to only load images that you know for certain were released into the public domain on it. What the purchaser does with the device after taking possession is their affair, not yours.