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Are ROM hacks considered pirated software for purposes of site policies against supporting software piracy?

ROM hacks typically take existing game images (typically those of yesteryear) and edit in creative or even insane new content. For example, there are ROM hacks floating out there that edit gratuitous blood and sexual content into 20-30 year old RPGs. The use of existing game engines certainly puts ROM hacks into a "questionable" box in terms of copyright, but one could (especially when the source ROM is ancient abandonware) make an argument for "fair use".

Without getting into a discussion on when (if ever) ROM hacks are "legal" in specific jurisdictions, what is our policy?

For example, would a question like this be a violation of our no-piracy law?

I found this hack of Sonic II for Genesis called Sonic Final Showdown Massacre II in which Sonic gets a shotgun. I know I can press C to fire the shotgun, but what do I do to reload? I tried all of the buttons in turn and it still tells me that my gun is empty.

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    "Are romhacks considered piracy?" - most of the legal questions surrounding games we leave alone, so long as it's not questions that are outright enabling piracy. Read more here
    – Robotnik Mod
    Commented Jan 9, 2022 at 6:44
  • "take existing game images (typically those of yesteryear) and edit in new content" -- Hence they're rather obviously derivative works of the original game, and distributing such requires permission from the copyright holder in most cases and jurisdictions. They'll probably contain large parts of the original intact, parts that could be copyrighted works in themselves, e.g. levels and graphics. (But then again, you asked what people "consider", not what the copyright laws say...)
    – ilkkachu
    Commented Jan 9, 2022 at 19:59
  • @ilkkachu that's right. I'm explicitly not asking about the legal situation of these games (which jurisdictions' courts are likely to rule romhacks to be "fair use" or otherwise "legit" and which are likely to rule them copyright violations), but to ask about site policy. After all, if Pokemon is suddenly banned in North Korea, that doesn't make every single Pokemon question on this site suddenly off-topic for everyone in the world. It's plausible that there are some jurisdictions that would consider romhacks of ancient games no longer sold to be "fair use".
    – Robert Columbia
    Commented Mar 9, 2022 at 23:29

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There are two main ways I know of to distribute a ROM hack:

  • As a complete (patched) ROM – this is the version of the game that is directly playable, but it often includes verbatim assets and code from the original game in addition to the modified versions. (Some ROM hacks are basically complete rewrites, but these are rare, and imo shouldn't really count as ROM hacks.)
  • As a patch file (or diff, or auto-patcher), which is a series of instructions for turning an original copy of the game into the ROM hack version. You can't play these without an original copy of the game. (We already have a lot of questions about hacks distributed this way.)

I have no idea as to the legalities, but piracy isn't a legal term. Distributing ROM hacks as patches, without including any of the original game in the patch, doesn't feel like piracy to me.

The term "piracy" has been used to refer to the unauthorized copying, distribution and selling of works in copyright. — Wikipedia

Since many ROM hacks can be obtained without piracy: in line with the Don't Ask, Don't Tell policy for pirated games, I don't think questions about them should inherently be considered questions about piracy. (This is also in line with Science Fiction and Fantasy's fanfic policy.)

Important caveat: creating derivative works is usually restricted by copyright law, but the extent of this restriction varies wildly by jurisdiction, to a degree that most people on the internet (myself included) rarely consider. I doubt Stack Exchange would be liable for questions about the gameplay of ROM hacks either way, but if providing Q&A for illegal games is a problem, this is a very tricky question.

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Hmm, the answer could really go either way.

In my opinion, they should be fine, as long as the hack was not DMCA'd.

But I think per the rules (or the spirit, at least) it should be: is a ROMhack legal or not (since we don't want to encourage any illegal activity). And I do not know where the law stands on the issue.

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