Skaddern: Video Gaming / E-Gaming Law Update – February 2022

[co-author: Avanthi Cole]

Main Quest – How To Tell ROM From Right –

As we review some of the more prominent legal issues that impacted the video game industry this past year and consider what 2022 may have in store, one question stands out for its longevity and seemingly intractable nature: how to handle ROMs.

The term “ROMs” (originally short for “read-only memory”) now generally refers to any software employed by computer programs known as “emulators” that allow users to play older (and in some cases difficult to find) video games. These early games were stored on ROM computer chips, and thus the modern-day software options that recreate such games have been dubbed “ROMs” as well.

ROMs and emulators have been around for nearly as long as the video game industry itself, and legal battles over emulator and emulator-like technology date back to at least as early as 1982.1 However, despite the intervening four decades and the fact that the legal landscape governing both emulators and ROMs has been fairly well settled, the use of ROMs remains a hot-button issue. For example, Nintendo of America’s recent lawsuit against the now defunct website RomUniverse, concerning the use of Nintendo’s copyrights and trademarks in connection with ROMs made available on that site, was met with widespread criticism from the gaming community, despite the overwhelming recognition of Nintendo’s legal right to enforce its rights against online pirates.

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