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вЂњOn the other side of the argument, thereвЂ™s what Disney does.вЂќВ DisneyвЂ™s strategy is toВ put classicВ movies вЂњin the vaultвЂќ for extended periods. вЂњOn the one hand, thereвЂ™s no amount of money that will let me get a legal copy of this game,вЂќ said Bambauer. That argument might not be airtight, according to Bambauer. After all: there canвЂ™t be market harm if a game is not currently for sale in digital form. Many people argue online that if a game isnвЂ™t currently available on the market, downloading a ROM is legal. What If aВ Game IsnвЂ™t Currently On the Market?

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вЂњThen it is market harm, because Nintendo should be able to sell to those people.вЂќД«ecause of this, it might be a good idea, even if you own a game, to avoid downloading ROMs from peer-to-peer networks, where youвЂ™re sharing a copy of the game as you download it. вЂњOnce youвЂ™re distributing a ROM, most of the people downloading it probably donвЂ™t have legal copies of the game,вЂќ said Bambauer. For ROMs it largely works the same way, which is why sites that share games are so frequently shut down. The RIAA and MPAA have found more luck going after the sites and people sharing music, rather than the downloaders. This fair use argument is potentially very wide reaching, but there are limits.В вЂњThe trouble comes when itвЂ™s no longer just me having a copy, itвЂ™s giving other people a copy,вЂќ said Bambauer.Д¬onsider the entertainment industry. вЂњIf we assume, for a moment, that if I did that it would be fair use, then it shouldnвЂ™t be different.вЂќ Sharing ROMs Is Unambiguously Illegal вЂњI think if the argument is, if I were a skilled engineer, I could extract this and have a copy,вЂќ said Bambauer. But he doesnвЂ™t think the two situations are all that distinct, legally speaking.

Now, Bambauer could imagine constructing an argument about how one is different than the other, and he admits the optics are different. So is ripping a ROM you own any different than downloading one? Probably not, says Bambauer: вЂњIn both cases what youвЂ™re doing is creating an additional copy.вЂќ

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What If You Rip Your Own ROMs?ДЄ 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.В Devices like the $60 RetrodeВ let anyone extract a Super Nintendo or Sega Genesis game over USB, and state their legality over downloads as a key selling point.В After all, rippingВ a CD you own with iTunes or other software is broadly considered legal, at least in the United States. вЂњThis is by no means a slam dunk argument,вЂќ said Bambauer, вЂњBut itвЂ™s by no means a silly one.вЂќ After all, Nintendo could argue that by emulating the game on your phone, instead of buying their official port of a game, theyвЂ™re losing money.Д«ut,В while there is no precedent specific to gaming, there isВ in other markets.В вЂњIn the music industry, everyone accepts that space shifting is legal,вЂќ Bambauer notes. And Bambauer is quick to admit itвЂ™s not a perfect one. Now, this isnвЂ™t black and white just a potential legal argument. вЂњThe argument would be thereвЂ™s no market harm here that itвЂ™s not substituting for a purchase.вЂќ

вЂњYouвЂ™re not giving the game to anybody else, youвЂ™re just playing a game you already own on your phone,вЂќ said Bambauer. He says he could imagine a few possible defensible scenarios.В вЂњIf I own a copy of Super Mario World, I can play it whenever I want,вЂќ he notes, вЂњbut what IвЂ™d really like to do is play it on my phone or my laptop.вЂќВ In this case, downloading a ROM could be legally defensible. вЂњFair use is a fuzzy standard, not a rule,вЂќ Bambauer explained. Then, according to Bambauer, you might be covered by fair use. ThatвЂ™s fairly clear cut, right? And it more or less aligns with the language regarding ROMs on NintendoвЂ™s website, where the company argues that downloading any ROM, whether you own the gameВ or not, is illegal.Д«ut is there a legal defense? Possibly, if you already own a Super Mario World cartridge.

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ItвЂ™s no different from downloading a movie or TV show that you donвЂ™t own.В вЂњLetвЂ™s assume I have an old Super Nintendo, and I love Super Mario World, so I download a ROM and play it,вЂќ said Bambauer. To begin: downloading a copy of a game you donвЂ™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.