Let’s get the basics out of the way first. Piracy of any kind is illegal. It doesn’t matter if you are copying The Legend of Zelda: The Windwaker or downloading Pong from some internet file sharing service, that action is a violation of copyright. You can justify it to yourself however you like, most people like to use the “It’s not being made any more, so I should be able to do whatever I want with it.” There are a couple of things wrong with that statement.
ROMs and virtually anything else that you might decide to freely download are copyrighted works. Copyrights exist for the life of the creator plus fifty years. This means simply that the copyrights on all video games created after 1953 are still valid, and that, unless some benevolent programmer/game company has decided to release their works to the general public (which some have done in recent memory) then copyrights are still in full effect.
Another thing to keep in mind are the video game collectors. If unlimited copies of games are made available to everyone, what happens to the used video game market? The stockpile of games that I have accumulated over the years suddenly drops in value simply because, were I to sell it, someone could just go to the Internet and download it for free. The game ceases to be special. Rare games aren’t rare any more. Even more disturbing is that since the games are freely available from many sites on the Internet, there won’t be as many people buying or taking care of their old cartriges, save for the rabid game collectors.
The assertion that Nintendo is the only company actively fighting piracy of their games is ludicrous. Nintendo may be the most vocal about it, but Sega, Sony, and virtually any other video game company (as well as companies in other forms of entertainment) are actively fighting to protect their copyrights.
So why do the companies even care? There are a couple of reasons why the game companies should care about what’s happening to their old games. The main reason goes back to the copyright. If someone owns a copyright on any piece of work, they are required to defend it, or else they could lose it to the public domain. If that were to happen, knock off products of varying quality would begin to appear and the uniqueness of the original product would be lost.
“But the games I’m downloading aren’t available to the general public anymore!” Now let me pose a question to you. If the games that you are pirating were to be released again, would you purchase them? A majority of NES games, for example, are available for $10 or less, and yet people still pirate them because they “aren’t available any more.” Konami, Sega, Namco, Midway and Nintendo have recently rereleased some of their ‘classic games’ in one form or another. I think that this is a fantastic idea, and I hope that more companies take their lead and release more compilations for modern systems.
There is a bit of confusion about the legality of emulation and distribution of ROMs. Contrary to what Nintendo would have you believe, emulators by themselves are not illegal (they have recently changed the wording on the Legal Page to reflect this). If that were the case, then the Super Game Boy, the Game Boy Player, and Animal Crossing would all be illegal since they enable you to play games on hardware that they were not designed to run on. The real problem is the distribution of copyrighted ROMs, and, indirectly, the emulators.
So by this point, you are probably thinking to yourself, “Right, I understand all of that, but aren’t there any legal ROMs?” The short answer to that is that yes, there are a few hobbiest programmers out there that stil like to fool around and make games for dead systems. Some of them have even released some of their older games into the public domain since the likely won’t be seeing any more money out of them again.
Hopefully I’ve cleared up some misconeptions about emulation, ROMs, life, and the universe. Please bear in mind that I shouldn’t be confused with a lawyer, so if you doubt anything that I’ve said here, please feel free to contact one, and have him (or her) verify the information.
Here are a few relevant links:
Trademarks, Copyrights, and Patents
The Mouse that Ate the Public Domain
Nintendo’s Legal FAQ