Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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If you run a gaming-related business in Australia - whether that’s a retail game store, a gaming café or esports venue, a content or mod marketplace, or an indie studio - you’ve likely heard debates about “piracy,” ROMs, emulators, and modded consoles.
These issues aren’t just theoretical. They affect how you market, what you can sell, the software you run on your PCs and consoles, and the content your staff or users might upload on your platform or social channels.
In this guide, we’ll unpack the practical question many owners ask: is pirating games illegal in Australia? We’ll also cover the related risks for businesses, the laws that apply, and the simple steps you can take to stay on the right side of the law while building your brand.
Is Pirating Games Illegal In Australia For Businesses?
Yes. In Australia, pirating games is illegal. “Piracy” typically refers to copying, downloading, distributing, selling or using copyrighted games without permission from the rights holder. That includes making ROMs of commercial titles available, sharing cracked copies, or installing unlicensed games across your venue PCs or consoles.
As a business, your risk is higher than that of a private individual. Courts and regulators expect businesses to understand and comply with copyright laws, and rights holders often prioritise enforcement where there’s commercial activity. Fines, injunctions, damages, legal costs and reputational harm are real possibilities if you’re caught infringing - or authorising others to infringe - in a business context.
Common Business Scenarios And The Legal Risks
Using Unlicensed Games In A Venue Or Store
If your café, bar, arcade or esports venue installs games without a valid licence, you’re likely infringing copyright. Owning a physical copy is not the same as having permission to install and use the game on multiple machines for commercial play. Many publishers offer specific commercial licences - that’s what you should rely on.
Hosting ROMs, ISOs, Or “Fan Uploads” On Your Website
Making ROMs or ISOs of commercial titles available for download is high-risk. You’re not only infringing yourself - you may also be liable for authorising infringement by your users. Even linking to infringing downloads hosted elsewhere can be risky if you’re facilitating access in a meaningful way.
Selling Mod Chips, Circumvention Devices, Or “Jailbreak” Services
Australia’s Copyright Act includes anti-circumvention rules. Devices or services that circumvent technological protection measures (TPMs) - for example, mod chips that let a console run pirated games - can lead to civil and even criminal liability. Selling, advertising or installing these devices as part of your business is a red flag.
Streaming Gameplay Publicly In Your Venue
Public performance and streaming can raise separate licensing questions. If your venue streams content (games, TV or music) to patrons, make sure you have the right permissions. The rules around copyright for public displays and streaming are strict, and similar principles apply to TV content in venues, as discussed in Sprintlaw’s guide on IPTV and copyright compliance.
“We Only Share Gameplay Clips” On Social Media
Short gameplay clips can still be protected content. Many publishers permit limited use under their “fan content” or streaming policies, but terms vary. Always check the publisher’s policy, follow attribution requirements and avoid monetising content in ways those policies prohibit.
What Laws Apply If My Business Touches Games Or Content?
Copyright Act 1968 (Cth)
Copyright protects software, game art, music, storylines and more. Reproducing, communicating (e.g. uploading) or distributing copyrighted material without permission is infringement. “Communication to the public” includes making content available online, which is why hosting or enabling downloads is risky.
Anti-Circumvention And TPMs
Australian law prohibits dealing with devices or services designed to circumvent technological protection measures (TPMs). That captures many mod chips and “jailbreak” services that enable unauthorised game copies to run on consoles.
Authorisation Liability
Even if you didn’t directly upload a pirated copy, a business can be liable for “authorising” infringement if it has the power to control the infringing act, knows about it (or should reasonably know), and doesn’t take reasonable steps to prevent it. This can affect platform operators, marketplace owners, venue operators, or community managers.
Contracts And EULAs
Game publishers’ End User Licence Agreements (EULAs) and platform terms bind how you can use and display their content. If you’re using software for commercial purposes, check if your use is permitted under the publisher’s EULA or if a specific commercial licence is needed. Having a tailored EULA or software licence agreement for your own software is equally important if you publish games or tools yourself.
Australian Consumer Law (ACL)
If you sell games, consoles or services, the ACL prohibits misleading or deceptive conduct and sets expectations around quality and refunds. It won’t excuse copyright infringement, but it does shape how you market and support legitimate products and subscriptions.
How To Stay Compliant: Practical Steps For Game Businesses
1) Use Licensed Content, Not “Found” Files
Ensure every game, soundtrack, font and asset used in your business is properly licensed. Keep records of purchase receipts, licence terms, and the machines they’re installed on (including serial numbers and counts). For bespoke content or partnerships, a written Copyright Licence Agreement clarifies who can do what, where and for how long.
2) Audit Your Devices, Images And Audio
Conduct periodic audits of PCs, consoles, servers and cloud storage. Remove unlicensed games or assets and update your licence records. Don’t forget images on your website, background music in-store, and any footage shown on screens - they all need the right permissions.
3) Avoid Mod Chips And Circumvention Services
Do not sell, advertise or install mod chips or similar devices. If customers ask, steer them to legitimate options (e.g. publisher-approved upgrades, DLC or legal emulators with licensed ROMs where available).
4) Set Clear Platform And Community Rules
If you operate a marketplace, forum or user-generated content platform, publish clear rules against uploading or sharing pirated content and provide a robust reporting pathway. Your rules can sit within your Website Terms and Conditions supported by a concise Acceptable Use Policy. Enforce them consistently and document takedowns.
5) Train Staff And Contractors
Make sure staff understand why “free” ROMs, torrents or cracked software are off-limits on business devices or networks. Provide quick-reference guides and a contact point for questions before they post, stream or install anything questionable.
6) Get Commercial Venue Licences Where Required
If you publicly display content or run gaming events with broadcast elements, confirm your venue licences cover what you’re showing. Publisher permissions, music licences and platform terms all need to align with your use case.
7) Put Your Own House In Order If You Publish Games
If you’re an indie developer or studio, protect your own rights and reduce disputes. Use contributor agreements, asset licences and a clear EULA for players. A tailored software licence agreement and EULA helps set boundaries on redistribution, modding and commercial use of your game.
What Documents And Policies Should A Game Business Have?
You won’t need everything on this list, but most gaming businesses benefit from a core set of contracts and policies. Having these in place reduces risk, clarifies expectations and helps you respond quickly if issues arise.
- Copyright Licence Agreement: A written licence for any third-party content you use commercially (game assets, soundtracks, art or brand collaborations). It should spell out scope, territory, duration and fees. You can formalise this as a Copyright Licence Agreement.
- Software Licence / EULA: If you publish a game or tool, a clear EULA explains what players or customers can and can’t do, including restrictions on copying, reverse engineering and commercial use.
- Website Terms and Conditions: Your site should set rules for users, IP ownership, takedown processes and limitation of liability. Solid Website Terms and Conditions are essential if you host user content or run an online store.
- Acceptable Use Policy: If you run a platform or community, an Acceptable Use Policy makes it explicit that pirated uploads, links to torrents or ROMs, and TPM circumvention instructions are not permitted.
- Supplier and Distribution Agreements: Written terms with distributors, platform partners and resellers set expectations around authorised content, territory and compliance.
- Employment or Contractor Agreements: If you have staff or contractors, your contracts should address IP ownership, confidentiality and acceptable use of business systems.
- Cease And Desist Letter (Template + Process): When others misuse your content or brand, a well-structured cease and desist letter can be a fast, cost-effective first step before escalations.
Responding To Infringement: Takedowns, Notices And Next Steps
If You Receive A Copyright Complaint
Take it seriously and act quickly. Review the claim, remove or disable access to the disputed content while you investigate, and document everything. If the content is user-generated, follow your published takedown procedure and notify the uploader. Avoid admissions of liability before you’ve assessed the facts.
If Someone Is Using Your Game Or Assets Without Permission
Collect evidence (screenshots, URLs, timestamps) and confirm ownership and scope of your rights. Consider sending a targeted cease and desist letter. For repeat or commercial infringers, speak with an intellectual property lawyer about next steps, which could include negotiated licensing, takedown requests to platforms, or formal legal action if needed.
If You Operate A Platform
Your best defence is prevention plus process. Have clear community rules, quick reporting tools, and an internal playbook for investigating and actioning reports. Consistent enforcement, documented decisions, and transparent communication can significantly reduce risk of authorisation liability.
Are Pirated Games Legal In Australia If They’re “Abandonware” Or “Backups”?
Terms like “abandonware” aren’t recognised in Australian law. Copyright usually lasts for many decades, and the fact that a game is old or not commercially available doesn’t make it free to copy or share. Backups may be allowed only under limited circumstances and typically don’t extend to downloading or distributing ROMs of commercial titles you don’t own rights to. In a business context, rely on clear licences or permissions - not internet myths.
Risk Management Tips For Different Game Businesses
Retailers And Resellers
- Source inventory from authorised distributors and keep invoices.
- Avoid parallel imports where licensing or regional restrictions may apply.
- Be careful with used games policies - ensure compliance with platform terms.
Gaming Cafés, Bars And Esports Venues
- Use commercial venue licences where required by the publisher.
- Control installations centrally so staff can’t add unlicensed titles.
- Train tournament organisers on music and broadcast rights for events.
Indie Studios And Tool Developers
- Track third-party assets and licences in a simple register.
- Use contributor agreements so your studio owns what’s created under contract.
- Publish with a clear EULA to manage redistribution and modding.
Marketplaces And Content Platforms
- Adopt robust Website Terms and Conditions and an Acceptable Use Policy.
- Flag high-risk uploads (ROMs, “full game” archives, crack tools) for review.
- Document takedown actions and keep audit logs in case of disputes.
Key Takeaways
- Pirating games is illegal in Australia and the risks are amplified for businesses that use, host, sell or facilitate access to unlicensed content.
- Authorisation liability, anti-circumvention rules and platform EULAs can all catch businesses that enable piracy, even indirectly.
- Stay compliant by licensing your content, auditing devices, avoiding mod chips, training staff and enforcing clear platform rules.
- Core documents like a Copyright Licence Agreement, Website Terms and Conditions, an Acceptable Use Policy and a tailored EULA help prevent issues and streamline takedowns.
- When disputes arise, act quickly: remove access, investigate, and consider a targeted cease and desist letter or advice from an IP lawyer.
If you’d like a consultation on copyright compliance for your gaming business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
