Are retro gaming consoles legal? Here's what you need to know

Are retro gaming consoles legal? Here’s what you need to know

Last Updated on April 2, 2024

I’ve lost count of the number of retro consoles I own. Sure, I have a nice selection of original hardware, but it is what we now call retro consoles – things like THEA500 Mini (an Amiga system), or an Evercade – that tend to get played more. Otherwise, emulation is operation, either hosted on my PC, or running automatically in the background with a game purchased on GOG.com.

Now, these platforms like the SEGA Mega Drive Mini 2, or THEC64 (and it’s smaller Mini counterpart) come with games preinstalled. For example THE400 Mini (the Atari 400 Mini) has 25 games built in, plus an extra two if you connect a specific controller.

They’re legal, because they ship with games licensed by the current rights holders, and run in an emulated environment. In terms of playing these machines as they are intended to be used, there is no chance of a copyright breach or any illegality.

But, there is a curveball: all of these mini consoles (Evercades aside) support the addition of other games via USB. But where you find these games throws the whole legality of these devices into confusion.

Legality of retro consoles

It might seem a grey area, but it really isn’t. If you have bought a retro console from SEGA, Nintendo, Retro Games Ltd (THEC64 Mini, THEC64, THEA500 Mini, THE400 Mini), or any Atari, TAITO, CAPCOM, or similar classic console produced under license, then owning and using these retro consoles and arcade machines is legal.

There might be some regional restrictions on specific consoles, but if the device has been bought legally, you shouldn’t need to worry about this.

Is retro gaming legal or not?

Retro games themselves are a bit different. If you’re buying original games on the original media (disk, cartridge, cassette, CD-ROM, etc.) then you’re staying within the law. But if you’re relying on ROMs (files made from the original media) that have been produced by the third party, you’re in risk of breaching the license for use.

In some territories (such as the UK) it is legal to make a backup of any media for personal use. But this exception (under fair use terms) is based on your continued ownership of the original media, whether it stops working or not.

So, buying physical retro games and reissues is legal, whereas downloading ROMs is usually illegal. Exceptions do exist – perhaps the ROM has been made available by the original rights holder, or the game has been released as open source. (For example, a recent release of Recalbox included 150 open source and free, legal ROMs).

shallow focus photo of gameboy console. Are retro gaming consoles legal? Here's what you need to know
Photo by Caleb Oquendo on Pexels.com

Legality of emulation

What about emulation? Well, most modern retro systems, such as those mentioned above, rely on emulation. The ones that don’t – such as the Analogue devices – use FPGA (field-programmable gate array – a way of programming a chip to act like a different piece of hardware).

Emulation is legal, as long as any necessary ROMs or binaries (BIN) have been legally acquired. Unsurprisingly, using illegally downloaded ROMs with any emulation software or retro console is an infringement of copyright. legal.

What can you do instead of illegally downloading ROMs?

My personal recommendation would be to rely on games released through the Nintendo Switch Online service. Here, you can enjoy NES, SNES, and SEGA Mega Drive/Genesis titles for the cost of the annual membership. Better still, these titles are added to regularly. If you want Game Boy Advance or Nintendo 64 titles, the + Expansion Pack option gives you titles from these libaries, included GoldenEye 007.

Nintendo has made a success of virtual console services, which was a particular strength of the Wii U. If you’re trying to keep your retro gaming legal, Nintendo is your best option.

If you prefer PC titles, there is abandonware. This is software that has been “abandoned” by the rights holder. Unfortunately, this is another grey area; titles declared “abandonware” do not retain that status if the rights holder suddenly deems otherwise. For example, various games once described as “abandonware” have since appeared back under the auspices of their original owners (or another rights holder) and available to buy on GOG.com.

However, while games exist under the descriptor, they can be accessed without concern for copyright.

Either way, it is better to proceed with caution, or avoid completely.

Pre-loaded retro consoles

You’ve seen those Facebook ads for retro consoles with 1000s of games preinstalled. But are these devices legal, or are you breaching copyright law when you buy one?

If you’re lucky, you’ll buy one that features copyright-taunting (but not actually breaching) clones of games. They’ll feature just enough differences from the original to remain safe from breaching copyright and upsetting Nintendo or TAITO or whoever.

But if you’re looking at one of these Facebook ads for affordable, pre-loaded retro consoles with USB controllers and 1000s of games ready to play, there is a chance you could end up with one that does breach copyright. Classic game publishers, as described above, are still around, whether the game rights are owned by a giant publisher or not.

Are retro gaming consoles legal? Here's what you need to know

Of course, if you just want to play old games, you’re probably thinking that it doesn’t matter, as you’ve paid for the retro console. But it does matter. While you might have paid, the people who compiled the console have not. They’ve downloaded illegally-sourced ROMs and distributed them on these devices. They have committed software theft, and you are supporting their piracy.

Avoid Facebook Marketplace

Given that many games can be acquired cheaply or even for free (e.g. with current gaming platforms), this seems unnecessary. You will typically also find that pre-loaded retro gaming consoles on Facebook play really poorly. This is due to the devices being shipped with little or no testing. Tweaking the emulation is rarely a priority for the people selling these units.

Compare that with Evercade, or the projects from Retro Games Ltd, or the classic NES and SNES games on Nintendo Switch Online. These have all been optimized for play with modern controllers, through the latest displays.

Optimizing emulators is a time-consuming task that some random guy in a shed selling cheap HDMI sticks with an SD card full of ROMs doesn’t have the time for.

Please game responsibly

By this point you should be clear that:

  • Owning a retro gaming console is totally legal
  • Illegality starts when you add games sourced from the internet
  • To keep things legal, use original hardware and games
  • In some territories (but not all) you can make legal backups of cartridges and disks for use on retro consoles
  • Pre-loaded consoles with 1000s of retro games (such as those advertised on Facebook) are almost certainly illegal

Gaming responsibly means respecting the creators of the games you love.

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About the author

Gaming since 1984, retro gaming since 2004. Contributes to Linux Format magazine, TechRadar.com, and other publications.

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