Speedrunners, retro gamers, ROM hacks. Everyone’s streaming emulators on Twitch, right?
Can you stream emulated games on Twitch?
Yes, you can stream emulators on Twitch. However, it’s against Twitch’s policies for users to stream pirated games, so you’ll need to use files created from your own legitimately acquired copy of a game for it to be fully above board.
Read on below to find out more about the legal status of video game emulation, what rights holders have to say about it, and whether anyone has ever been banned from Twitch for streaming emulated games.
What does Twitch say about streaming emulated games?
In short, nothing.
The first line of the DMCA & Copyright FAQs article in Twitch’s help center stresses that Twitch “is committed to supporting creators, so it’s important that you respect other creators’ rights in the content you stream and share on your channel”.
The article focuses on the use of copyrighted material such as music, art, and videos in your stream. It’s tricky to protect video games as, unlike a piece of art or music, a video game is not a fixed medium.
Many individual aspects of games are nevertheless protected by copyright, patent, or trademarks where relevant. Twitch is therefore just as ‘committed’ to respecting these protected elements as they are music, art, and video that exists outside of video games.
Neither Twitch’s help center articles nor its community guidelines say anything about streaming emulators or emulated games: Searching Twitch’s library of help center articles for ‘emulator’, ‘emulators’, ‘emulated’, or ‘emulating’ yields a grand total of zero results.
That makes it a little bit tricky to know whether you can include emulated games in your search for a good game to stream on Twitch.
Instead, responsibility appears to lie with the streamer themselves to ensure they are not infringing on the copyrights of others, and with the right’s holder (e.g. a game’s developers/publishers) to notify Twitch if they think their rights are being infringed.
‘Twitch Plays’ events
A good real-life example that helps to demonstrate Twitch’s stance on streaming emulators is Twitch Plays Pokémon.
This event was the zenith of backseating on Twitch: A stream was created which allowed viewers to control the player character in Pokémon Red by issuing commands in the stream’s chat.
Some form of emulation was almost certainly used to create this content (I’m not sure how it would have been possible using the original Game Boy hardware), but that didn’t stop Twitch from using its official blog to hail the success of Twitch Plays Pokémon.
What does the law say (is emulation considered pirating)?
Case law (in the USA at least) indicates that emulation software is not illegal.
The most well-known decision is Sony Computer Entertainment, Inc. v. Connectix Corp. (2000), in which the Ninth Circuit Court of Appeals ruled that Connectix’s Virtual Game Station – a PlayStation emulator for Mac – did not infringe a copyright or tarnish Sony’s PlayStation trademark.
The court essentially took the opinion that Connectix’s reverse-engineering of Sony’s BIOS software fell under fair use.
Here’s one bit of the judgment that I found interesting, especially considering Sony’s current struggle’s against Microsoft relating to the latter’s acquisition of Activision Blizzard and the potential for the Call of Duty franchise to become an XBOX exclusive:
“…because the Virtual Game Station is transformative, and does not merely supplant the PlayStation console, the Virtual Game Station is a legitimate competitor in the market for platforms on which Sony and Sony-licensed games can be played.
“For this reason, some economic loss by Sony as a result of this competition does not compel a finding of no fair use. Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly.”
In short, a video game hardware creator can not expect to rely on its intellectual property rights purely to protect or create an unfair advantage in the market.
But what about the software – the games themselves rather than the platforms they run on? After all, Connectix’s Virtual Game Station still required users to insert the game disc into their Mac.
Well, even though video games are almost always protected in some way or another (as I mentioned above) it’s difficult to find any instances of a video game developer or publisher that has taken another party to court for downloading a ROM file or similar.
Russ at Retro Game Corps (pretty much the authority on retro video games) has a nice article about exactly this subject, where he concludes that it’s a rarely enforced (and never tested in court) gray area.
Provided that the files you are using to emulate the game are from a game you actually own, you have a pretty solid defense against any complaints. That’s comforting for Twitch, which makes a lot of money from emulated games (from people donating Bits to Twitch streamers that play them, for example).
It doesn’t cost money to stream on Twitch but it sure could get expensive being get stuck in a lawsuit relating to your streaming activity so be careful out there!
What do the people who make the games say?
So emulating games is a gray area legally, and streaming these games is even grayer (can something be grayer than another gray thing? Anyway…).
I don’t often take the side of a megacorp, but I think it would be reasonable for any rights holder to be a little cheesed off if someone was making money from followers on Twitch by playing an emulated version of a game that they had never actually paid for.
As I said, though, the whole thing is a bit tricky and while video game copyright hasn’t been tested in court, some rights owners have been pretty hawkish about protecting their intellectual property in any way they can.
Take Nintendo, for example, whose attempts to discourage emulation (or piracy, I guess, from their perspective) of its games have extended to issuing DMCA takedown notices to sites that do so much as host box art images uploaded by gamers who want their Switch emulation library to look pretty on their Steam Deck.
The fact that Nintendo spends resources going after this sort of thing and not just the emulated games themselves underscores how murky the whole thing is from a legal point of view.
I will say that Nintendo is not exactly a champion of video game preservation or backward compatibility, so I think it has itself to blame to an extent.
As Valve’s Gabe Newell has stated, “…piracy is not a pricing issue. It’s a service issue… The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates.”
What do the people who make the emulators say?
The standard position of the developers who make emulators is that the software they create is not illegal, and it’s up to you – the user – to ensure you don’t do anything illegal with it (like, say, use it to play a pirated video game).
That position is backed up by case law in the USA that has not really been challenged or probed in any greater depth since the Ninth Circuit’s decision in Sony Computer Entertainment, Inc. v. Connectix Corp more than two decades ago.
Take Citra, for example, an open-source software that makes it possible to play 3DS games on Switch.
On its website FAQs, it very clearly states that:
“In order to run your games, Citra requires that you dump your games, game updates, DLC and other 3DS system files from a hacked 3DS. This is the only legal way to obtain these files for use in Citra. Any other method of obtaining these files is considered piracy and therefore illegal.”
Whether Nintendo is happy with us all hacking our 3DS’ is another question…
Has anyone been banned from Twitch for streaming emulated games?
Plenty of high-profile creators stream games using emulators, including the likes of Texas-based Twitch streamer Mizkif.
I can’t find any examples of a Twitch streamer being banned for streaming emulated games. That’s not a surprise given what we discussed above about the gray area that this all exists in.
Can you stream pirated games on Twitch?
Twitch prohibits users from sharing content on their channel that they do not own or otherwise have rights to share and the list of content examples in Twitch’s community guidelines explicitly includes pirated games.
But how can Twitch ever know whether the copy of a game being streamed is pirated? Answers on a postcard, please.
There are, however, plenty of examples of creators being banned from Twitch for copyright infringement more generally, including some high-profile streamers who have done so intentionally.
One final thing to note is that advertisers might be less keen on their products being shown on Twitch ads in your streams if they’re concerned that the content you’re streaming might not be cleaner than clean. So, even though you’re unlikely to get banned, you might not maximize revenue when streaming emulated content.
Summary: What you should know if you plan to stream emulators on Twitch
You can stream games played via emulators on Twitch. Creators do so all the time and Twitch has even endorsed streams using emulated games on its official blog in the past.
Although Twitch’s viewer demographic arguably makes it less attractive than YouTube for streaming emulated games, it is nevertheless super popular on the platform.
The main thing to understand is that the responsibility falls on you to make sure that what you are using the emulator for is legal.
The safest course of action when streaming emulators on Twitch is to only use game files you have created yourself from a cartridge or game disc that you legitimately own.