DraStic developers email on legality

Hi Kyle, I've just read your review, overall it's well written but I did want to offer some correction on the claim that the emulator is technically illegal. Emulators themselves do not violate copyright law and aren't illegal; so far this has been tested in court in Sony v. Bleem and Sony v. Connectix. The stackoverflow link you provided largely supports that emulators are legal as well, although that's not exactly legal advise. There is one claim that the emulators enable users to bypass copyright, but that isn't actually true - by itself the emulator does nothing to allow circumventing ROMs. If you're using ROMs in violation of copyright then you had to have already done so outside of using the emulator. The closest possible claim is that the emulator encourages copyright infringement (even though you can use it without violating copyright by using it with ROMs you've legally dumped, and you can use it with homebrew or public domain games, so it has utility outside of this). A similar argument was made for DS flash carts - these were successfully banned by UK court, but also successfully defended by US court, so it's a bit more gray. Even with flash carts, you could make the argument that they do actually enable dumping ROMs, as opposed to emulators.

The part that's <i>technically</i> illegal would be downloading games you own instead of dumping them. As in, it's not legal to download something that's violating copyright. But since the end result is the same it's difficult to prove and I expect most people wouldn't really consider this an ethical issue. Downloading games you haven't purchased is more blatantly illegal in any jurisdiction I'm aware of. I try to encourage people to buy games that they play ROMs for, I see emulation as a lot more than just an easy way to play pirated games.

Nintendo is within their rights to send us a cease & desist order (like they did with UltraHLE), they're more or less within their rights to send a C&D to whomever they want. That doesn't mean it'll hold up in court, but many people wouldn't be that enthusiastic about taking Nintendo to court even if they could win. Bleem and Connectix won their cases but the financial burden was tremendous to the small companies that were barely making money off of their emulators. I'm not sure if we'd react similarly or not.