Using downloaded NES/SNES ROM files for research work -- is this covered under "fair use"?

Question

The only official statement for Nintendo is their legal terms page, which prohibits anyone using downloaded ROM files.

Scenario -

• If someone plays a downloaded ROM file (any ROM file will serve the purpose) on the FCEUX emulator on PC. The ROM file remains intact and will not be changed. Only the game will be played and in-game variables will be changed via emulator.

• The reason someone can use NES/SNES games, is the availability of many diverse genres within the same platform.

• Is there any fair use policy to use proprietary material for academic research. There are some YouTube videos and some projects on hackster.io, where people have used AI (Artificial Intelligence) to play Super Mario and Tetris in emulator. There was a research paper on AI playing tetris too. (A simple google search reveals lot of published papers with Super Mario and Tetris).

• The for specifying any jurisdiction is to have blanket protection to anyone in the world using it for academic and research work.

Answer 1

What is legal, and legally enforceable, varies from place to place - especially for things like scientific study. But there is an additional ethical and respect issue.

I would suggest that you contact them with your research proposal. As long as it doesn't have competitiveness issues, or encourage activity that they frown on, they might actually support you. Of course it might also set them against you depending on what you want to do, but it is worth considering, at least.

Answer 2

As you clarify in a comment, your focus is on the emulation, and not e.g. a historical study analyzing different video games by playing them. Thus I'll assume that you need the ROM, and that playing other versions of the game won't suffice.

The problem is that the legal situation is far from clear, and varies from place to place, as different copyright laws have different exemptions, interpretations, etc. E.g. archive.org supposedly has an academic DMCA exemption allowing them to archive ROMs. Is it legal to download them and make academic use of them under US law? I simply don't know the answer to that, and other countries will have yet other circumstances. The Internet is filled with a lot of hearsay and personal theories about what the law does/should say, but I don't think there's established case law. In short, I think you need to consult a copyright lawyer familiar with the laws (and precedents!) that apply to you, to be sure, especially if you're looking for some kind of academic exemption.

Many countries do have a clause allowing for personal backup copies if, and as long as you own the original game. As Nintendo say on their site, this doesn't mean you're allowed to download a ROM from the internet just because you have the cartridge, but this is often interpreted as saying that you're in principle allowed to personally make a ROM file from a cartridge that you own. I think this is generally the safest route, and recommended for private persons who wish to emulate their old games. The downside is that you would have to acquire the original cartridge, as well as the required hardware.

I'm not a lawyer, so take the above for what it's worth. What I do know is that Nintendo, as a company, is generally considered inflexible and overprotective when it comes to their intellectual properties. Their Youtube Creators program (a policy regulating how they'd treat game footage on Youtube, recently announced to end) didn't make any fair use provisions, for example. Personally, given this company's past behavior, I would want to be certain that I'm in the clear before admitting in writing to using/downloading ROMs.

In an edit, you mention papers on AIs playing Nintendo games. It might be worth your while contacting the authors and asking how they handled these legal issues.

Answer 3

I am not a lawyer or anybody qualified to give you an actual answer, but my tentative opinion is that this is not really permissible because of the method you specified for getting the game.

Since you did not specify a jurisdiction I am going to assume U.S. copyright law applies, because it is the most populous nation of native English speakers. You might also want to keep in mind that you would be likely to be tried in the 9th Circuit, since that's where most of the big copyright cases happen, due to most copyright holders being headquartered in that jurisdiction (Redwood Washington, Hollywood California, and the Silicon Valley come to mind)

Downloading a R.O.M. is a flat out violation of U.S.C. Title 17 §106 because it is necessary for you to reproduce the file by copying it onto your computer in order to be able download it. There are some exceptions to this rule such as fair use, but they constitute an affirmative defense since you have to admit to the principle fact that you created a reproduction in the first place.

We do not even get into the fact that you do not plan to redistribute or alter the files, because it is illegal for you to obtain them in this way in the first place.

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

Note that a popularly cited series of cases as it pertains to computer software is the Mai Trio. This series of cases includes Mai Systems Corp. v. Peak Computer, Inc., Wall Data Inc. vs. Los Angeles County's Sherriff Office and Triad v. Southeastern Express. To summarize the significance of these cases, authorized copies come with an implied license to make temporary copies as is necessary to use them by the licensee, but unauthorized copies do not and you may not exceed the extent of authorized use. The very means of obtaining these copies is illegal, and playing them is also illegal.

You do not have much in the way of a fair use argument that would exonerate you. Your only interest in the games may be for a nonprofit educational commentary, but those the only factors you have going in your favor, and the entire character of use needs to be considered so that may not be enough of an excuse:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the

The copyrighted work is a commercial game, and you are using it as a game so your work is not transformative. You need to download the entire game in order to play it. The effect upon the potential market in downloading these R.O.M. files is that you do not have to pay anybody for authorized copies. Moreover, there is relatively little about the purpose and character of your use which requires you to download the copies from a third party source: It is just convenient for you. This is not quite the same as taking a screenshot of a game and showing it off to prove a point to others. The character of use is so that you can personally play the games.

Maybe an argument could be made if you copied your own games. U.S.C. §117 has express provisions for making a backup copy of a game you own, although they were ruled to be irrelevant in Atari v. J.S. & A., Inc., which regarded cartridge to cartridge copying effectively illegal. Nintendo also managed to sue the pants off of the creators of the Game Doctor, which copied from cartridge to floppy.

Hypothetically, able to argue a case analogous to R.I.A.A. v. Diamond Multimedia that a mere cartridge reader to interface with a computer which does the copying is not a dedicated copier, and that copying your own copies for the purpose of format shifting constitutes fair use so long as you do not exceed license. However there is also a good chance that these could be ruled illegal too, and I do not know of a case which directly tests its applicability to games.

How do Youtubers get away with it? Well, copyright is civil law, so it is left up to the copyright holder to decide whether or not to sue, and it often is not worth the hassle to go after small time infringers. Publishers also might not know for a fact that they downloaded the games.

However, just to simplify matters, if you must use an emulator, what you should probably do is go a generation up and use a PlayStation emulator with the original game discs. That is expressly legal according to existing precedent such as Sony v. Connectix and Sony v. Bleem. Now granted, both of those companies ended up going out of business after the lawsuits, but that was largely because of extralegal reasons and the precedence set by these cases should make a future case easier to win if push came to shove.

Answer 4

While the suggestions that others have pointed out are good, I would like to answer your question with a follow-up question. Do you really need the ROM-files in question or just access to the games?

Many of the popular games are also available on other consoles. For instance, Super Mario Bros. is available as part of the NES Classic Edition and on the Wii Virtual store.

If you don't want ports of the games due to possible differences between versions, then purchasing the original games and playing them on the original hardware (don't forget that modern TVs are not ideal for retro gaming!) is likely the best option. This is, of course, an extra cost but in comparison with salaries and other equipment costs connected to scientific research, probably rather low. Furthermore, depending on what you want to study in the games, ROMs might not be 100% perfect representations on the effect of the origninal hardware either. (I am no expert on technology though, so I'd suggest talking to somebody who knows a thing or two about hardware emulation and ROMs if fine details of the game and hardware performance is of importance.)

Answer 5

I can't answer the legal question; however, if you have seen other research that has been done on these games, then I don't think it would hurt to contact those researchers and ask them how they were able to use those games and/or deal with the legal issues.

Something else that may be worth considering is whether you could use similar free/open-source games as an alternative. There are open-source versions of most of those old Nintendo games that are extremely close to the originals, just that they don't include the copyrighted artwork and trademarks. Here are a couple of examples:

• Tetris clone
• Super Mario Clone

If your research doesn't absolutely need to use those proprietary games, then these would be completely free of any potential legal issues. I would think they could be run inside a virtual machine, which would give you quite a lot of control over how they perform.