And you will probably have a hard time arguing that it doesn't promote piracy. You can't get "ROMs" officially. You have to extract them from the cartridge with specialized equipment, or maybe in some other way, but it is not as simple as reading from a CD. It means that most people will simply get them from illegal sources. With an emulator, you can say it is for "homebrews", but if you recompile a commercial game, you can't use this argument.
I don't think that's right, I think it's essentially considered the same work under copyright law. Apparently compilation doesn't fulfil the criteria of derivative works.
And if you want to avoid the license just steal it from someone. You never agreed to a license, but you are still required to follow copyright. (I've obviously being a little sarcastic, but license agreements on software are meaningless, even if a company claims they have meaning.)
Nintendo has, in fact, sold the public ROMs before (and I don't just mean custom emulator executables wrapping ROM payloads that get delivered encrypted onto DRMed consoles.)
Specifically, I'm talking about the NES Classic and SNES Classic. These little boxes use multi-image emulators, rather than Nintendo's usual approach of a customized single-image emulator for each game. And the ROMs used by these systems are just sitting there as files on disk. The disk isn't encrypted, either; nor is the bootloader or kernel integrity-signed; or really anything like that. You don't need to "jailbreak" these things — they act like Android phones, where you can just reboot them into restore mode and plug them into a computer with a USB cable, and see a virtual disk. The "modding tools" for them just drop a new kernel with wi-fi support into their /boot partition! (And you don't even need to go that far to read the ROMs off the rootfs — any Linux PC will work to mount it.) So any DMCA "they used DRM, which means their intent was to license you X, not sell you X" arguments don't apply. They did nothing to stop people from extracting these ROMs.
By buying these systems, you're effectively buying "a box full of ROMs" directly from Nintendo (the IP rights-holder for said ROMs), at retail, as a "money for goods" transaction. So now, by the first-sale doctrine, they're your ROMs, and you can do with them as you please.
This is true as surely as buying a DVD box-set means you now own those DVDs, and can do with those as you please. (Part up and resell the DVDs individually? Sure, why not!)
Or — for perhaps a more interesting example — as surely as buying a stock images or sound-effects library on CD (even second-hand!) implicitly brings with it the IP rights to use those assets in derivative works you create. The primary-market purchaser didn't have to agree to any kind of license terms at point of sale? First-sale doctrine applies to that IP from then on! (Amusingly, Nintendo redistributed exactly such stock-image CD assets embedded into Mario 64 — so their lawyers are double-bound to agree that this particular interpretation of first-sale doctrine should pertain.)
This is wrong. Please do not confidently present your guesswork as fact.
If it were true, copyleft would have no chance of working; binaries compiled from copyleft-licensed source-code would not be subject to the copyleft licence.
