Software Copyright

What is the scope of the Anti-Piracy Program?

The ESA's Anti-Piracy Program is designed to combat entertainment software piracy in the U.S. and certain countries around the world. Global piracy is estimated to have cost the U.S. entertainment software industry over $3.0 billion in 2007, not including losses attributable to Internet piracy.

ESA anti-piracy efforts include: investigations and civil litigation against individuals and companies engaged in pirate activities; monitoring of, and enforcement against, online piracy; supporting investigations and prosecutions of game software pirates by law enforcement officials and government agencies, such as the U.S. Department of Justice, the Federal Bureau of Investigation (FBI), the Bureau of Customs and Border Protection of the U.S. Department of Homeland Security, as well as foreign enforcement bodies; and training and educating customs agents and law enforcement officials in the United States and a number of countries overseas.

Isn't it legal to copy games as a backup as long as you own a legitimate copy?

U.S. Copyright laws permit making a "backup" copy of computer programs for archival purposes. However, the right to make backup copies of computer programs for archival purposes, as embodied in 17 U.S.C. Section 117(2), does not in any way authorize the owner of a copy of a video or computer game to post or download a copy of that game to or from the Internet or make such copy available to other people for their use. Section 117(2) only gives the owner of the copy a right to make an archival copy of the actual copy that he/she legally possesses, not to make a copy of the ROM that someone else legally possesses, nor to post an archival copy of his/her original copy for distribution. The law clearly does NOT provide any right to sell "backup" copies. In fact, Section 117 is quite explicit in stating that any archival copy prepared under Section 117(2) can only be transferred to another person if, and only if: A) The original copy is also transferred, and only with the authorization of the copyright owner, and B) The transfer is part of the sale of all rights in the program.

Isn't it okay to copy games that are no longer distributed in the stores?

No, the current availability of a game in stores is irrelevant to its copyright status. Copyrights do not enter the public domain just because the works or products they protect are no longer commercially exploited or widely available. Therefore, the copyrights of games are valid even if the games are not found on store shelves, and copying or distributing those games is a copyright infringement.

Haven't the copyrights for old games (like Atari and Commodore) expired?

U.S. copyright laws state that copyrights owned by corporations are valid for 95 years from the date of first publication. Because video and computer games have been around a little more than three decades, the copyrights of all video and computer programs will not expire for many decades to come.

What's the problem with emulators and ROMs if the games aren't out anymore?

The problem is that it's illegal to make or distribute software or hardware emulators or ROMs without the copyright or trademark owners' permission. Moreover, copyrights and trademarks of games are corporate assets that are sometimes sold from one company to another. If these titles are available far and wide, it undermines the value of this intellectual property and adversely affects the copyright owner. In addition, the assumption that the only games involved are vintage or nostalgia games is incorrect. Many popularly available emulators emulate current game systems. In other words, in many cases, emulator/ROM piracy is affecting games that are still on the market. Finally, in the current highly competitive market, a top quality game costs millions of dollars to develop, and sometimes double or triple its development costs to market. Software publishers must generate a meaningful return on their investments if they are to continue to meet the growing demand for technologically advanced products. The suggestion that some piracy is benign and not harmful undermines respect for the intellectual property rights on which software companies depend in investing millions of dollars in creating and publishing new games. Piracy of any kind on any scale erodes this foundation.

Why is it illegal to share video and computer games on peer-to-peer networks or through Bit Torrent sites?

It is illegal to post copyrighted materials to the Internet for copying or download through peer-to-peer networks without the expressed authorization of the rights holders. When individuals or groups place part or all of a copyrighted video or computer game on one of these networks or sites, it is a clear violation of U.S. copyright law. The activity on these networks is NOT sharing but copying.


For more information, please see the Entertainment Software Association official website.

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