In 1985 I got a Commodore 64 and played a lot on it. Of course these were games copied from colleagues, who copied them from others, and so on. There was no commercial game sales infrastructure here at that time, the actual computers were sold by Audio/HiFi/TV and Photo shops. (There was then obviously no public Internet, let allone downloads from it.)
After migrating to a 286 in 1988, I found out how much PC CGA games suck. Later after migrating to a NeXT in 1992, I found out, that there were no games at all for it, so I wrote an C64 emulator. Well, strictly I started to write one, but the very heavy operating system on its only 25MHz processor failed to allow the graphics updates to perform adequately fast. Since around the 350MHz PC generation, by now running Linux, C64 emulation became fast enough. Since then I am a regular emulator user, and as such also a retro gamer. I have next to no interest in modern game styles.
At the moment I am looking for a new PC (mainly to run larger emulators) and so reading reviews (in online magazines and on user forums). In those I see ever-increasing claims going around, about emulation being illegal. Some missinformed people genuinely believe this, and worse blindly help spread this falsehood. Some believe them, but at least fearfully ask questions about it. Others are using deliberate false statements against emulation for indirect takes against the unavoidable usage of copies of ROMs for them. And some of the press are not only failing to correct this false information, but are even supporting it indirectly, by distancing themselves from emulation, apparently as a cover-your-ass action.
Contrast this stance with lots of retro gamers, who are users of emulation of old 8bit/16bit systems, or even early 32bit, some even up to later 32bit. They consider this activity to be entirely acceptable, including copying the needed ROMs. They are increasingly getting fed up, from repeatedly seeing misinformation and criticism, which fails to convince, because it has already countless times been rejected and/or corrected.
But also contrast this with actual law, which is nowhere near as clear as the media industry propaganda wants everyone to believe (for which they spend large sums on spreading their one-sided views).
This text looks at the various legal and moral issues involved, in an attempt to clear out some of the fog, and promote more balanced decisions.
Second: One of the most important principles in law is jurisdiction. That is the consequence of the world been split by rulers into about 200 countries, each with its own legislative and judicative system, which leads to law being different in every one. Anyone who makes claims about law should preface them with what jurisdiction they apply to, else they demonstrate gross ignorance of legal basics and should not be taken seriously. Thus everything here comes with remarks, as far as I know to where it applies. I will mainly be focusing on U.S. law, despite not living there, because most media companies are there, most of media industry propaganda comes from there, and also most of legal threats are by them. Also U.S. law contains crucial details specific to out-of-publication works (including old video games), which today affect the entire world.
But like any computer emulated ones need software. Usually that of the original system which has been (re-)implemented in them, mostly the reason for running them. That is mostly games, but also firmware or even operating systems (unless these were also reimplemented). For consoles game software came originally in form of ROM chips in cartridges. For emulators it needs to be extracted to form of ROM image files, for short ROMs. (Note: For home computers and newer consoles games originals are on floppy disks or CDROMs or DVDs or Blurays. But it is customary, to call all resulting image files ROMs, and will be done so here.)
All legal problems apply to software, as getting and using ROMs can collide with copyright law. According to the media industry propaganda, copyright is "intellectual property" and belongs absolutely to them. Thus they may dictate anything to users, even after sale, as if those were renting and not buying! Including forbidding its use on emulators. Even after stopping selling it. But is this really the case? It helps to look at what actually is the real legal situation, which deviates quite far from above claims.
This was adopted by the ruling monarch, but modified to make autors into "owners" of their works, and booksellers by contract into exclusive publisher, which they accepted. Side effect of this modification was that authors and their publishers could only get this status and payments, if they identified themselves, which was only possible, if their works where not unwanted by the monarch. With clear words: Censorship, by carrot in addition to by stick. (This is also why the payments to authors are called royalties, as they were once granted by royal decree.)
When democracy arrived, often as revolution against monarchs and their abuses of legal power, copyright should have been abolished, together with all other royally granted privileges, given that protectionism violates freedom of trade and censorship violates freedom of speech. Thus copyright violates constitutional law on two accounts, and as such is incompatible with the base of the entire democratic system! It only survived by law twisting on the part of lobbyists:
These two logics were later merged and extended, some would say perverted. This came from jurists "discovering" the "fundamentel idea behind both" of "intellectual property", despite both not having being derived from any such thing! With this two cases of political/legislative corruption turned into juristical mental twistedness, in which laws which were derived from integrity also get applied to monopoly.
The Berne convention (and its descendants) stems from the latter tradition. This standardised copyright in Europe in the early 1900s, to prevent imports circumventing it. The U.S. only adopted it in the 1980s. Since this collisions of the two different systems ways of thinking are common. Often without the persons involved understanding the basic conflict or its roots. Or even deliberately ignoring the part they do not want.
Not surprisingly in the land well known for egoistic persons and greedy companies and aggressive lawyers, attempts were made to misuse that what had been gained. One early attack seems to have been an attempt to suppress parody, by claiming it violates copyright on characters and/or scenes of the original. This lead to all parodians being threatened in their existance and to an strong legal case against this plaintif. The defendants managed to argue, that a) parody does not violate monopoly of making copies nor the profits from that, and b) suppression of parody is censorship. So one of the first copyright exemptions was created by the court system.
This may surprise many, who believe that judges must follow laws. But while Congress produces "written law", which amounts to the official "software distribution" of law, and is by its very creation (proposed by lobbyists, possibly modified and then adopted by politicians) often self-contradictory. In cases where a plaintif and a defendant both argue to have a law at their side, and thus a contradiction of laws is demonstrated, the courts need to decide, which law shall override which. All legal systems must contain such a process, else they would fail by deadlock. Such decisions result in what is known as "case law", which amounts to "patching" the laws by its users.
(Note: Anyone can read written law. The expertise of a lawyer consists largely of knowing all case law pertaining to his area of specialisation, so that he can give solid legal advise, which will survive court. (This is also why lawyers are always limited to working in the jurisdiction for which they are trained and licensed.))
Over time quite a few such cases have piled up. Which has lead to the specific term "Copyright Exemptions", which tells something about how many there are! For gamers in general and emulator users specifically two seem to be relevant:
The second basically amounts to case law stating: "If publishers want a monopoly, to maximise their profits, with claim of more art for users, but at the price of no one else being able to distribute, then they shall also accept the obligation of publishing. If they stop doing so, then their profits are zero, and their claim becomes irrelevant, thus only no one distributing remains, which gives less art for users, thus their monopoly shall be stricken, to prevent this loss."
Out of such exemptions follows, that claims of copyright being absolute are legally false. This applies at least in the U.S., with its original "temporary monopoly" style copyright thinking as base, with case law deriving from that. Only later "property" style thinking was introduced there, where many claims contradicting the above originate from. But they can not invalidate case law, as they are only media industry desires and propaganda terms, not written law (changes of which can invalidate case law).
Above is all U.S. centric. Other countries with "integrity" style thinking as base perhaps have different but comparable exemptions, or not. Though I have not investigated any, because they have become irrelevant on the Internet. Copyright fails as soon as only one country allows a breach. Preventing this was the motivation behind above standardised European copyright against imports.
See the modern case of Germany, where case law based on a written law principle called "Bagatelle" declares, that filesharing of music shall be "illegal but not procecutable", so long less than 5000 titles are offered. This principle exists to limit the amount of trivial processes to a handleable amount (here of largest filesharers), because else a flood of such processes would overwhelm the legal system, which is dimensioned to handle few percent of criminals, not tens of percent of copiers, which would threaten upholding other way more important laws.
Just one country allowing this guarantees on the Internet, that the entire bandwidth of their millions of filesharers is available to anyone, which is enough to provide for the entire world. This collaped entirely the war of the music industry against filesharing. After this they gave up on their high price with monopoly plans, accepted Apple's low cost iTunes offer. After that they promptly became successfull, because serving customers (even with low profit) is way more profitable than sueing zero cost competition. Who would have expected that!
Same applies even if only the U.S. allows offering of out-of-publication works, it is enough to provide the entire world. Any war against this will collapse. Even more so if U.S. companies are trying fight do it.
(Note: The first above exemption is irrelevant for their case, on the web, due to free-of-cost downloads for everyone, so long a web site still exists. Thus no lending is relevant. (It is though relavant for DVD rentals, inclusive game DVDs, and also game cartridge rentals, if such exist.) (Comparable exemption also exists to allow used DVD or cartrige resales. Which have also been attacked by media industry. They lost. Such may even apply to reselling digital downloads.))
Strictly archive.org runs in what is called a legal gray zone. That is any new situation, where written law states something is illegal, but where a) there is no case law made yet for this new variant of situation (due to no such case having gone through court and gotten decided), and b) though it can be reasonably assumed, that this new case would lead to a further exemption (or more likely to conformation/expansion of an existing exemption). For archive.org it is by analogy to above second exemption. How good this works can be seen: Either archive.org have never been sued (which implies all potential plaintifs got legal advise to give up, due to expected failure), or there were only small cases that never made it to public attention (which implies the plaintifs lost and gave up quietly). Thus we can assume here very light gray.
(Note: archive.org is currently (2023) being sued by a book publisher named Hachette. But that pertains to their "digital lending" system, not to their archive of vanished web pages. Some libraries have invented a system of buying N copies of books, and then making the text available online to up to maximally N users, through a special reader program, which denies access after some "lending time", after which a further user gets access. Once again this is a case of legal gray zone, by analogy to the first above exemption. This one is being now challenged in court. Obviously the plaintif believes in winning, but their lawyer has already demonstrated incompetence, by first attacking a well financed organisation, which can defend itsself, instead of targeting some small library, which could fail at defense, thus create a prejudice, which could be exploited to sue stronger targets easier.)
What does all this mean for emulator users, in particular for offering and downloading and using of ROMs for them? It leads to the concept of "abandonware" (= abandoned (soft-)ware). This can be stated as: Anything that the publisher has abandoned, has let go out-of-publication, has stopped selling, has written-off any future income, due to assuming it to be less than operational costs, is free for anyone else to copy. This applies in particular to all the software for outdated computer systems, including consoles, where sales have been abandoned, because that system is no longer supported. This covers owners of original copies dumping them (= extracting the bits, analog to ripping of CDs) to ROM files and spreading those, but also collectors of ROMs placing then on web sites and distributing them, and also users downloading them from there and using them.
At least in many countries only offering for download/copying is illegal, while downloading and using are entirely legal. This seems to apply to all or most of Europe. So long only one country allows offering, all users in all these countries are unlimited. Downloading and using is claimed by some to be illegal in the U.S. How far this is true I do not know. It may even only apply, if the one downloading is financing the one offering, possibly as part of "auxillary in crime" laws. Which would not apply, if offering itself is not illegal there.
So one again this is legal gray zone. Once again with offering being reasonably assumed by analogy to above second exemption. And downloading likely parallel to what is being offered.
Today most game publishers let this happen. Perhaps because they have gotten legal advise to give up. But possibly because they just see no profit in it, so why waste money on legal costs, just to annoy users, who may be potential customers for their current offerings, and could decide to boycott them. Which would be bad for business.
There is one very known exemption: Nintendo. This becomes visible, when one visits ROM web sites, selects a system, and all titles of all other publishers are available, but all Nintendo ones are missing, or more likely they are still indexed but give "no download available" error, which suggests they were once there, but are now removed. See this repeat over multiple sites, and Nintendo gets its reputation of having the most aggressive lawyers in the game industry.
(Note: Some commentators claim, this is because they still sell copies of some of their old games on their newer systems. But others such as Capcom and Namco and Sega and SNK also sell such, and even for PCs where web ROMs are direct competition, and still don't remove them. Thus this claim is questionable, or at least very incomplete.)
Despite that their success is limited. There are just as many sites without such missing ROMs as there are with. This suggests, that they either do not know those sites (unlikely, as such are easy to find by normal web search by anyone). Or they do not care (extremely unlikely, as this would be inconsistent). Or they can not threaten the site owner due to their jurisdictions legal situation (this certainly applies in some cases). Or they failed to impress the site owners (perhaps because those know above exemptions and are willing to defend themselves).
Case for latter seems to be again archive.org, who offers entire ROM collections, of all games for any specific 8bit and 16bit systems (handheld, console, home computer, PC, arcade), including Nintendo systems, including Nintendo produced and published games.
(Note: For people who have never seen such collections, here examples: One I have for NES (Nintendo 8bit) games is 259.5MBytes of .zip file, has 2229 files in it, one per game, and contains every game which I have listed as interesting me, all 118 of them, not one single one missing. For SNES (Nintendo 16bit) one is 974.1MBytes .zip, 966 files/games, with 83 of 105 interesting, 22 missing. For MegaDrive/Genesis (Sega 16bit) one is 714.5MBytes .zip, 974 files/games, with 119 of 134 interesting, 15 missing. (Most of them are Japan-only titles, those two collections are USA+Europa-only sets.))
They are definitely well known for offering such, being the recommended source of good quality ROM collections. This generally comes in form of "just do a web search for 'archive.org systemname ROM collection'", which is tolerated even on forums with strict "no links to ROM sites" policy. And they are in the U.S., this eliminates any jurisdiction limits. It is also definitely not lack on wanting, as Nintendo have sued some other sites, with success, so are not making empty threats.
So why have archive.org not been sued? Why are those collections still available? Only sensible interpretation here is, that Nintendo strongly enough suspects, that sueing would fail. Or even worse, could backfire, in form of taking ROMs from gray zone to full case law legal. This given that archive.org knows its rights, and is willing to defend them, with to be assumed good chance of success. Losing such law case would destroy all intimidation potential, and thus end all suppression by threats, which they have managed to gain up to now. So they will not risk this. Thus even their known most aggressive lawyers have by deed of ommission indirectly declared the extension of the exemption to be likely enough valid! (The sites sued by them were very likely such with also current games on offer, not just abandonware.)
(Note: For anyone who recognizes above, Nintendo are basically working with intimidation by empty threats against abandonware web sites, which often know no better than media industry propaganda claims. All this just to reduce availability to half as many sites, and thus frustrate some timid users, that they give up searching. But even so other users annoyed by more searching are guaranteed. This goes up to boycotts by any users, who recognize and reject such bullying behaviour. Profit gained is questionable. As Nintendo's own emulators and ROMs can be sold anyway, despite web downloads, with the advantage of "easy to install and use". Same as the music industry today manages to sell, despite web competition, by this approach.)
By 6 of 9 of above standards, all except the first 3, demanding any form of monopoly by threat of law is immoral. Because this can only be achieved by threats of punishment against everyone who does not accept the monopoly. All who by doing this are not committing any act of violence. Thus making any punishment into unjustified violence, and thus demanding such is immoral itsself. Consequently disrespecting such immoral demands can not itsself be immoral.
(Note: This applies not just to copyright, but also to all other intellectual monopoly style laws (including patents, trademarks, appellation of origin, design patterns, data protection, ...), and even to any other form of law granted monopoly (such as state concessions).)
But it is moral (and legal) to take free rides, if such are offered. See in cases where the bus service is subventioned by city or sponsored by private. Any case where no ticket sales infrastructure is present, can be assumed to fall under this. The same should apply to abandonware, where the publisher sales infrastructure is not any more available.
Only difference is, a bus service has running costs for each ride. So this situation requires subventions or sponsoring to continue to exist, making it seldom. While media have none, only one-time distribution costs, which those offering downloads are giving away, and those downloading can help cover with donations. Thus it suffices if just the publisher abandons sales.
Also games can be made cheaper, by reselling after playthrough. Strictly the price splits itself into "playing cost" (= buy - sell) and "collecting cost in case of not sold on" (= sell). Games can be got even cheaper, by buying them second hand, by being the person who above sell part comes from, and later selling on second hand (or would that be third hand?). In which case the difference of buy - sell can drop down to nothing (if sell = buy). If the game becomes abandonware and seldom enough, sell can even go up to where buy - sell becomes negative (that is profit instead of cost).
(Note: Why do you think do media companies want, that everyone buys from e-shop? Because it eliminates reselling of physical copies, no legal competition by second hand product, more sales and profit for them. Or even "better" they want, that everyone accepts software rental, annual payment or else the software stops working, which over the years adds up to even more profit for them. Also they can ignore the "annoying" usage rights, which buying gives the user, but renting does not. Example see Nintendo Switch official emulators, which are today only made available for such rental on Nintendo Switch Online, after Wii and 3DS and WiiU at least had buyable e-shop versions as the Virtual Console series, and GBA still had cartridges as Classic NES series (though strictly these were ports and not emulations, due to adapting to the smaller resolution LCD, first 3DS can fully emulate NES).)
Still too expensive for you, even with resale of second hand bought? Then download abandonware for free. There are decades of abandoned game history to be played through. Not good enough for you, only the current games are good enough? Then pay your share towards creating new ones. Don't cheat other gamers, who are paying their share of developing of still being sold games.
Only after something has become abandonware, this becomes a legitimate alternative to ROM downloads, including then giving away copies of ones dumped ROMs to others, which may end up on download sites for others to get instead of dump.
(Note: Also they only offer such small 10s of ROMs per emulated system, and only on their newest system, in a world where 1000s of ROMs are available free online, for any emulator on any hardware. Totally not competitive! Then they try to compensate with above legal threats, and fail at it. They have not learned anything from the music industry losses.)
Bonus points when such activists make panicked statements, which sound as if Nintendo could not republish any more! This despite them only losing their law-based monopoly on written-off titles. While they still have an DRM based monopoly on offering any software on Switch, including emulators and their ROMs. And while copied ROMs only apply to PC and phone users, who can not run Nintendo's emulators anyway, and thus are not potential customers for them and so irrelevant.
(Note: Instead they could offer at least packages of all of the 100s of Nintendo-owned (and thus external license cost free) games for every system. With NES and GB/GBC games averaging 100kBytes and 300kBytes such 100s are still only few 10MBytes, which would already have fit in N64 or NDS cartridges, let allone on GameCube MiniDVDs or Wii DVDs or WiiU Blurays or in 3DS and Switch cartridges. Even 100s of average 1MBytes and 3MBytes size SNES and GBA games would fit in all latter. (This with their ROMs as the "levels" of an single emulator "game" per system.) With e-shop downloads cartridge limits even disappear entirely. With such offers, at a price fitting for emulators being low development cost "games" (compared with budgets of new full size titles) and the actual ROMs near cost-free due to already written-off (so this part is just cashing-in on dead bodies), together the price of a smaller normal game, and most users would not bother with downloads. Except PC and phone users, who can not run Nintendo's emulators anyway. (Above mentioned Capcom and Namco and Sega and SNK do sell such packages, at fitting prices, and do not sue, despite their offers being for PC.)
This don't save them hardly anything, despite what some activists claim. They still need to provide the old games for re-download by previous buyers, which requires disk space and net bandwidth and operating the database of purchases. They also still need to be able to bill users of their current system that they are selling for, so payment infrastructure is still operated. They only save maintaining a web app, which shows the unchanging list of games available for the old systems, and allows customers to add more of them to their database of purchases, after paying more. That is not much saving.
What do they lose? Obviously all further sales possible. Possibly a multiple of the saved maintaining costs. But way more important, the status of "last to become abandonware" has just been extended, from DSi and Wii up by 2 more systems. That reduces the version distance from newest abandonware to the currently sold Switch version from 3 to 1! Even worse, if that version was a straight WiiU port (all early games with "Deluxe" at the end of their title), then it is more like from 2.5 to 0.5 versions. So they have just thrown away a massive amount of advantage! Example see Mario Kart, one of Nintendo's hottest sellers over multiple generations, previous abandoned were up to DS (version 5) and Wii (version 6). Now with the e-shop closures they added 3DS (version 7) and WiiU (version 8), while Switch is only version 8 Deluxe.
This fail becomes even worse, due to repeating the mistake, after already having done it a few years ago, when shutting down DSi and Wii e-shops in 2017 and 2019. Which was promptly followed by abandonware web sites expanding to offer DS and Wii titles. Followed by legal threats, which failed to suppress them. DS games have by now become over 90% available, Wii are over 50%. Now we are already seeing sites expand to 3DS and WiiU titles. Again legal will fail.
Repeating this mistake seems to be a case of institutional idiocity, of the sort that comes from ideologically caused blindness towards reality. Or of institutional arrogance, of the sort that comes from being corporate powers, who are spoilt by a legal license to demand state-perpetrated violence, despite it not being in defense against violent attack.
(Note: I myself have profited from the closure. I can now on my jailbroken second hand 3DS also run its fitting games, not just GBA and DS ones plus emulated 8bit/16bit, without having to search for used cartridges, followed by dumping and storing them. (These are getting ever more seldom and expensive, due to being out-of-publication and collectors buying them up.))
(Note: Side effect is a massive increase in people jailbreaking 3DS, even those who have used it for 10 years without, so they can now further add games without e-shop. This in such amount, that Nintendo has in 2023 issued a firmware update to version 11.17.0-50, for this since 2019 abandoned system, to "fix" a security hole in system setup, which has had no impact on playing, but is used for the easiest form of jailbreaking. Profit gained is again questionable: Nintendo's own emulators and ROMs can be sold anyway, and their current ones in any case only run on Switch, as the emulators on 3DS have been abandoned. Add that hackers regard finding new holes as sport, in the least, and as digital Robin Hoods who free users from restrictions, at the most. Also this only hinders 3DS users, not the way more PC or phone users. Losses are obvious: Annoyed users, if they attempt to jailbreak and find out, that they have been tricked, into sabbotaging themselves! This will certainly cost Nintendo, at least damaged reputation and reduced sympathy, possibly also boycotts.)
In this world publishers need to change, drop false law and use morals. But like the old U.S. law came with a legacy of "time limited tolerated breach of law" and its limits, moral also comes with a condition of "be respectable so you can credibly preach" and its consequences.
How can they fail at this? Easy! Just compare copiers, who are for the worst at the crime level of fare dodgers (or not even at that, when only using Abandonware), and mostly know this instinctively, with pirates, who are gangs of violent criminals at sea, and are known and despised for that.
Screaming "Piracy!" may have been an effective form of propaganda, to incite careless politicians, to pass the laws which publishers wanted, by using hyperbole. And dramatic enough, to make them add drastic punishments. But those are politicians, who have been mentally twisted and corrupted by years or even decades of propaganda battles. Thus they will accept anything, so long lobbyists can fit it into their twistedness. Even if it is missusing force of law for violent attacks on citizens. This given quite a few politicians are egocentrics, do not care about basic rights of others, not even constitutionally prescribed ones. See the Prohibition for how badly they can derail. They are mostly not video gamers, even less retro gamers, not users of abandonware, have no interest in copying, so this can not correct them.
While today on the Internet it is a totally ineffective way of convincing gamers, who have an interest in copying (be this only abandonware by some or anything by others), and are not twisted. They see the mismatching comparison of copying with robbery gangs, recognize the false association. Some then also see the organised spreading of propaganda to corrupt law into being auxillary in crime. And they are already pissed by reports of overly harsh punishments. Some then also see the tradition of institutional repeated use of threats of violence. Thus manipulators and violence perpetrators and thus hypocrites get rejected. Media industry fails badly!
Insert here the standard copier quip: "No piracy here. No sea at hand, nor ships in sight. No software on one ship, nor assault on it from another. Why go to such trouble and danger to get files, instead of just downloading them from the web?".
Bonus points, that the media industry has managed to convince far too many non-copiers among gamers (and other media consumers), to mindlessly propagate this self-defeating terminology. Thus making those repeat the same mistake 1000s of times, annoying copiers ever more. And due to unfocussed viral propaganda spreading to the type of gamers, who are succeptible to such, there is no way to get all of them to stop, even after recognizing the error. Total failure is unavoidably coming their way!
Super bonus points, when such non-copiers complain, that copiers are not listening to them, neither consider their pro-copyright arguments, nor better themselves, some times with additions such as "despite being told 1000s of times" or even "despite being told since decades". Copiers notice, that those same pro-copyrightists also fail to listen to criticism of their "piracy" usage, neither consider changing terminology, nor better themselves, despite being told 1000s of times, since decades. And all this despite mental twisting asaault with propaganda being a far worse crime, than not paying ones share (let allone just using Abandonware).
(Note: The Internet has a long history of recognizing Godwins Law. This states, that in any long enough discussion the chance approaches 100%, that some activist will compare his target with the Nazis. In this case the discussion is over. Not in a legalistic sense, but simply because once said activist claims his whatever target to be as bad as million-victim mass-murder, he will be regarded as a nutcase. Even supporters of his desire will distance themselves from such extremism, or at least go silent. Others will criticise the activist. The target can now very easily reject anything from him, will so surely not accept any demands he was aiming for. 100% fail is guaranteed. Comparing copiers with pirates is not as extreme, but triggers the same type of rejection, due to being widely inapproriate.)
While at it, the same applies to comparing copiers with thieves. Copiers also know the difference. Theft means loss of use of something, copying makes a second copy to use, no loss of first. Also false association, easy for copiers to notice, easy to then disregard and reject the claimant. Only difference is, the media industry have at least avoided being a violence user who is falsely accusing others of violence, and thus a hypocrite. But also easy to consider them as "too stupid to notice this sort of subtle difference". Being considered stupid makes them no more effective at preaching than being hypocritical.
Insert here an other standard copier quip, after seeing the "Would you steal a car?" propaganda campaign: "Of course I would not steal a car, but I would copy one if it were possible!". Consequently that campaign failed entirely.
Media industry wants some success? Accept and use the proper association with bus rides without paying. That one can not be ignored easily, because it is true. And it gains support from honnest users who understand it, and recognize their losses from cheaters. But it also requires accepting the included free rides offer logic, which leads to accepting abandonware copying. Though this also gains support from abandonware users. Also it leads to focusing on those copiers, who cheat on payment for still in publication games. Failing to see all this once again seems to be an industry-wide case of institutional idiocity or institutional arrogance.
Real property applies to things. Each one separate, each one owned/transferable/sellable/buyable independably, from old owner (including manufacturer as original owner) to new owner. Which is the base of every sale ever, since millennia, known to everyone. While "intellectual property" tries to apply to all copies, including those already sold, thus violating fundamental expectations of trade.
Lame excuses by activists like "that difference is why it is called intellectual property" fail hard, because they are basically saying "we want this treated with the respect property gets, despite ourselves not treating it as such". That exposes the propaganda scam.
Once this broken "property" logic is recognized, and the legalistic mental twistedness that lead to it, all other media industry failures become understandable. They come from blindness caused by this ideology. The moment when they "forgot", that they are (in the U.S.) only granted a temporary monopoly (and as such a privilege), or (in Europe) only granted recognition of expression (and as such keeping the integrity of the work), and missunderstood these grants as subsets of "property" (and as such treat it as given), and after even perverted the basics of property (disowning the buyers), then all their desires for copyright extensions become understandable, as attempts to treat something as what it is not.
This confusion stems from the collision of the two copyright systems ways of thinking, and the bastard born from merging and extending the "monopoly" and "integrity" traditions into false "property". The resulting actions are false. No matter if they are "correcting" the "flaw" of limited time monopoly, by extension to permanent property, and then denying spreading it even after they have stopped selling it. No matter if it is "protecting" the "retained after sale" property, with DRM, and so denying customers full usage of it.
Once again they hit the problem, that it is easy to convince politicians, who are mentally twisted and have lack of respect of others. But not users, who are not twisted and want respect as potential customers. Extension implies not holding of ones part of a deal (letting go after time over), after the other party has already held their part (enforced monopoly while this time). Which is comparable to consuming in a restaurant and then leaving without paying. Which is also worse than dodging fare. DRM is even comparable to cheating paying customers out of using what they bought. Worse still. Once again media industry attempts at preaching get shot down by lack of morals on their part.
(Note: Some users deliberately use DRM-less copied software to avoid side effects of DRM. Some of these restrict themselves to abandonware. Others also copy current. Some of those don't bother with additionally purchasing an official version. Some even deliberately avoid the latter, out of desire to cheat the publishers, as "reward" for how they are cheating buyers. This can be regarded as a form of boycott, not buying, but thanks to copyability still not lose usage, despite that no competing supplier can exist for the specific monopolised software.)
How can one maximise this self shooting? Of course by breaking more basic rights! Such as with the WIPO copyright treaty and the U.S. DMCA law based on it. These contain laws to "protect" DRM, by threats of attacks on anyone offering information on circumventing it, which is assault on freedom of speech. Also they contain reversal of burden of proof, which breaks fundamental principles of due legal process.
Nothing shows anyone up worse as violent criminals, than such level of perversion: Being intent on dragging people off to prison, as revenge against them helping users, to fix brokenness, which was broken with intent, to cheat ones customers. Does the media industry really want to be the supervillain in this game? Or is this yet annother case of institutional idiocity or institutional arrogance?
(Note: The DMCA caused such a large amount of criticism after its adoption by the U.S. Congress, that even the majority of politicians in Europe doubted its demands. So they watered down their adoption of the WIPO treaty, removing the DRM parts. Even in the U.S. the first few uses created massive PR backlashes. Consequently most media companies have given up on using the DRM parts.)
Once again there is one known exemption: Nintendo. Already well known for DRM abuse since the 1980s on NES, for censorship of "unwanted" content, to "protect" consumers. (Instead of introducing a rating system, like Sega did for MegaDrive/Genesis, or only using their Seal of Quality.)
They have in their current system Switch implemented harsh DRM to detect jailbreaking, to prevent users using Switch with unsigned (read: not sanctioned by their authority) software, including emulators, but also game modifications (mods) or any user written games (homebrew, of which emulators are actually a special case).
With this DRM they not just prevent "unwanted" software from running, as on NES, but also ban any such console. That not only ban from net gaming, despite jailbreaks usually not being used for cheating at that, and integrity checks of just the game when it connects to net play being sufficient for recognizing and blocking cheat mods. But also ban from e-shop access (yes, they will not even sell to jailbreaking users, losing themself sales!), and even from system software upgrades (which may be needed for newer games, thus they sabbotage users). (Note: If someone because of ban is not allowed to buy software, then copying it from the net is actually not cheating anymore.)
The latter parts of this ban come across as a form of vigilantism against jailbreakers, who mostly only want to uncripple their purchased hardware, to use it fully. Which "improves" the situation, from users "wanting to avoid Broken As Designed (BAD) DRM", to some who recognize above "wanting to boycott vigilante company".
Bonus points, that they even use the DMCA DRM part, to sue and imprison hackers, who made and sold auxillary devices for jailbreaking. Which "improves" the situation further, from users who know this "wanting to boycott vigilante company", to "wanting to boycott criminally violent company". Yet annother case of institutional idiocity or institutional arrogance.
(Note: This is the reason why I have no Switch. Its DRM prevents user written emulators, thus seriously reducing usage value of it for me, to only a few Switch-exclusive games, instead of also many abandoned ones, for which its hardware could be used. Plus they fail to offer their own emulators as buyable cartriges, preferrably each containing 100s of their respective games. Which requires, that I either must have two devices, bad for the environment, or simply only the other one, merely bad for Nintendo. They by their behaviour lost console and multiple game and multiple emulator sales to me. And the same to many other users, at least 100'000s and possibly even 1'000'000s. (Insert here a standard Internet forums quip: "Nintendo hates its users".))
(Note: Even without such policy one will see snide remarks, that anyone asking on forums for links is too incompetent to use a search engine, and thus will likely also fail to install an emulator, so it is senseless to help them! Or is too lazy to use one, so why would anyone want to help them? This is considered to be acceptable rejection, as it is only denial of help, and not censoring of information nor false preaching.)
Once again, most emulator users are into abandonware, only some are into avoiding paying. But many media ignore this fact and include the "obligatory" condemnation. While at it they "ideally" also name emulator users as "pirates". (Some forums even commit this straight in their usage policy.) Totally guarantees not being taken serious. Also looks like cover-your-ass, at the best, or like political correctness, at the worst.
Also most media while at this fail at noting anything about jurisdiction differences, believing all the world is legally exactly like the U.S., or rather the media industry claims about the U.S. Thus they actually are spreading propaganda, instead of showing such up, thus fail as press.
From both these errors they fail to achieve anything, other than pissing off emulation users worldwide. Never could achieve something productive, such as helping sieve out pay avoiders from hiding among abandonware users.
At least try to limit such preaching to reviews, which involve emulation of systems where games are still being published (that would be Switch, plus PlayStation 4 and 5, plus Xbox One and Series, plus modern PCs). Or simply don't mention emulation of such systems at all. Any review can still cover up to DS and Wii (and possibly even 3DS and WiiU), plus anything from Sega, plus PlayStation up to 3, plus Xbox up to 360, plus anything on any home computer, plus any DOS Windows PC (or possibly even all pre-64bit NT), plus any older arcade machines, to make it relevant enough.
Also copyright was never entirely legal in the U.S., got exemptions made, including for out-of-publication works. And now it is going to die anyway, the Internet is seeing to that, with easy copying. Which the law has failed to suppress, because users are too invisible or unreachable to credibly persecute them. That does not lead to stopping copying, only to hiding it to avoid the aggressors assaults. On the Internet that is easy.
Moral can not uphold this law, as copyright always was immoral by many standards, for using violence without being justifiable with fending off violence. Also many copiers have no respect of the perpetrators behind threats of violence, nor of manipulators with propaganda, nor of corrupted politicians. All the confusions of monopoly with property, and all the false laws passed from this, and all the abuse done with them, only worsen this situation. Result is "Game Over" for copyright.
Thus there is only one way forward: Replace use of law with moral. But for that the media industry needs to stop shooting into its own foot. They need users to become moral, and can only achieve this by leading them, by becoming decent themselves! Start with dropping the abuse of false laws and spreading of false propaganda. Also they need to be respectfull to get respect! That includes stopping cheating customers with DRM.
After they can recieve what can be gotten by convincing the majority of decent users with honnest arguments. Such as paying ones share of current developement. But this includes recognizing, that all which was willingly abandoned is now free. Emulator users will copy and use abandonware, and will consider this as acceptable, as it is not any more cheating. At best they can also offer a way for donations.
Then focus on action where moral against cheating can work, copiers of current stuff. As part of this also (re-)influence those gamers who have fallen into mindlessly repeating outdated propaganda terms, and get them to also change their focus.
This page is by Neil Franklin, last modification 2023.08.06