People often complain about the legality issue surrounding emulation and roms in general. One thing to remember about the proliferation of the roms and emu scene is that of convenience. People now a days tend to appreciate having less stuff and digital content. Steaming, Steam, etc. If Nintendo created some sort of digital game marketplace odds are good emu and rom scene would deteriorate. fundamentally issue is the scene itself and how gamers now a days want to consume content.
Also important to remember is that often times the older consoles and cartridges no longer function well, the condition of the physical hardware starts to deteriorate and unfortunately things can wear out.
Fun story about the legality problems. Way back in the day, I worked for a company that created a "play old videogames" service. Our lawyers went out and hunted down the owners of old Commodore 64 titles and such. According to the internal rumor mill, some of these companies required us to convince them that they really were the owners of these games do to a long series of acquisitions before they'd agree to sell us the rights to the games.
Anyway, once we had the rights, we of course asked for a copy of the game. Well, naturally, they didn't have one. And several of these old systems had some form of copy protection. Well, fortunately, the 1980s demo scene had led to cracked copies of these games being easily downloaded (bonus fun fact: I may be the only person in history who clicked 'agree' on a 'you must have written permission from the publisher to download this ROM' and meant it). But of course the crackers had included crack intros which we certainly couldn't use. So we ended up including the cracked version, with the cracks, and just initializing the games to a memory state just after the crack intro played.
Without those crackers cracking the game, we might never have found a copy that we could have published.
And that's why copyright should lapse and die when the registered copyright owner can't offer the Library of Congress a copy of the work, for archival and eventual entry into the public domain.
Ah, the C64... Once a friend had an original disk of a game that wouldn't work. Just for the heck of it we copied it and applied the protection (some copy software had it as an extra step, as I recall), and it worked.
I'm not sure if this was protection related, but once I rented a C64 game and it wouldn't work. The store wanted me to pay for it until we booted it on their system and saw it work. Years later, I read in a magazine that that particular game wouldn't work with my particular printer. :( Weird.
I'm no lawyer, but I imagine that if you sued us for copying you demo, we'd sue you back for distributing the cracked game in the first place, and the comparison of relative damages would probably not work out in your favor.
Nintendo does have a digital game marketplace, and it's stuffed with quite good games. However, even if a game has previously been published on Nintendo hardware, that does not automatically give Nintendo the rights to release it again on their virtual console. Those deals all need to be renegotiated, which is never going to happen (or may be downright impossible) for more obscure games.
There are plenty of first-party Nintendo virtual titles, though, and most likely plenty of people (like me!) who now refuse to buy them because they have to be bought over and over and over again for any new hardware.
"Digital" is an interesting distinction here. Nintendo has a service that lets you play old Nintendo games... but only on other new(er) Nintendo consoles: a physical product you must first buy from them. Basically, if you want their service, you need a $300 hardware dongle.
And even then, the (licenses for) the old games that you're buying from Nintendo's service are actually licenses to the particular port that runs on whatever the console generation you buy them on. If you buy the Wii Virtual Console port of Mario 64, that doesn't entitle you to download+run the Wii U Virtual Console port of Mario 64. You either accumulate an ever-expanding pile of hardware dongles that will themselves break one day, or you keep buying and re-buying ports of your favourite old games for each new console generation, never knowing whether they'll actually bother to port any given game to any given console, whether they did it for a previous generation or not.
This doesn't quite match the meaning of "convenient" in the sense that Steam is convenient: with Steam, when you buy a game, you're buying a license to play that game on anything—if the game starts out only on Windows, but then is ported to run on Mac and Linux, you don't have to pay again. You just own "the game", and are granted the ability to download+run whatever ports of it exist on Steam.
It's too bad they never covered distribution in their original game licensing (that allowed publishers to get the Nintendo official seal on the packaging). I wonder if consoles/companies of today are correcting that to account for future distribution models.
> odds are good emu and rom scene would deteriorate
This is a rather limited point of view - the draw to emulation is much more than convenience.
There are thriving communities based around homebrew, preservation, ROM hacking, translations, prototype collecting, debugging, tool-assisted speedrunning, enhancements, music, artwork and reverse engineering.
There are many parallels to the music piracy controversies with Napster, etc. iTunes gave people a convenient alternative and turned into a big success. If they would just make more old games available people would probably be willing to pay for them.
Also important to remember is that often times the older consoles and cartridges no longer function well, the condition of the physical hardware starts to deteriorate and unfortunately things can wear out.