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Is playing «Zelda: Tears of the Kingdom» on an emulator illegal?

15.5.2023

Translation: Patrik Stainbrook

The new «Zelda» is here, exclusive to the Nintendo Switch – in theory. The game already runs on PC emulators. A legal expert explains the legality of this in Switzerland.

A full two weeks before its official launch, «The Legend of Zelda: Tears of the Kingdom» appears on file-sharing networks. Twitch streams quickly ensue – Nintendo’s draconian takedown notices hot on their heels. The Japanese company is demanding U.S. courts ban Discord servers that publish game content and that the names of leakers be made public.

Emulators are also a thorn in Nintendo’s side. These programs allow console games to be played on other devices such as PC. That’s exactly what’s happening with the new «Legend of Zelda: Tears of the Kingdom». It’s why manufacturers of emulators as well as tools necessary for emulation are on the hit list.

While the legality of an illegally acquired game quickly becomes evident two weeks before launch, things get murkier when it comes to emulators and ROMs. I asked lawyer and digital law expert Martin Steiger for more on the topic.

Are ROMs and emulators legal?
Martin Steiger. Lawyer: I assume emulators are legal for individual users in Switzerland. In my view, you won’t get in trouble for making a copy of games you buy yourself to use in an emulator either. On the other hand, the download itself is illegal.

ROM (read only memory) is the common term for the memory image of a game file. Basically, it denotes when game data is processed. A ROM can then again be read out, i.e. played, on a PC with emulator software. Emulators exist for practically all consoles, from the Atari 2600 to the PlayStation 3 or even the Switch. The technology is used to play console games without the original console or to create backup copies…

Isn’t it the case that in Switzerland, downloading movies, series, etc. is legal, but uploading isn’t?
In Switzerland, downloading copyrighted works generally falls under permissible private use. This applies, for example, to TV series or music. Software is a major exception. Creating individual backup copies of software, on the other hand, is always permissible.

It didn’t take long for the new «Zelda» to successfully run on emulators as well.
Source: Nintendo

Nintendo is also cracking down on the tools needed to bypass copy protection. What’s the legal situation there?
Nintendo is known for an aggressive approach to copying games. In principle, Swiss law also prohibits the circumvention of effective technical measures for patent protection. However, there is one major exception. For legally permitted uses, you may bypass copy protection. This includes backup copies of software.

So just because I bought a game or console, I can’t automatically assume that I can do whatever I want with it?
Buyers are allowed to do almost anything they want with their console – within the usual limits. A console, for example, doesn’t belong in general household waste, but must be disposed of as electronic waste. And anyone slamming the console against the ground should be careful not to cause personal injury or additional property damage.

However, the console is merely an object. Its value consists of the software that runs on it. Nintendo sets factual and contractual boundaries here. Where these boundaries lie is a matter of controversy among lawyers. Anyone using a Nintendo console must ultimately accept Nintendo’s terms and conditions, refrain from using it, or switch to alternative options.

The hype around Link’s latest adventure is gigantic.
Source: Nintendo

What about laws on emulation and ROMs internationally? What happens if Nintendo wins a lawsuit in the U.S.? How do these laws find their way into Switzerland?

In copyright law, the so-called country of protection principle applies. The applicable copyright law is always that of the country in which a legal issue is discussed. American law or American rulings on copyright therefore have no direct impact on the legal situation in Switzerland. Indirect effects do exist, however, as relevant sources are mostly located abroad or on U.S. Internet infrastructure.

The market for remakes, remasters or re-releases of old games on new devices is growing. Do you think this will lead to stricter regulations regarding emulation?
The legal situation is clear enough. I therefore doubt there’s sufficient reason to tighten copyright law. Copyright law is already very restrictive today. Companies such as Nintendo would be smart to ride this trend and benefit financially. Unfortunately, the content and game industry has repeatedly shown itself incapable of taking money that is literally sitting in front of them. Questionable providers often jump into this gap.

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Philipp Rüegg

Senior Editor

Philipp.Rueegg@digitecgalaxus.ch

As a child, I wasn't allowed to have any consoles. It was only with the arrival of the family's 486 PC that the magical world of gaming opened up to me. Today, I'm overcompensating accordingly. Only a lack of time and money prevents me from trying out every game there is and decorating my shelf with rare retro consoles.

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