It's only ever fair game if you can no longer purchase it in any capacity. For example, there's not excuse for pirating Final Fantasy VII, since you can purchase it for PS3, PS4, PSVita, and PC.
On the flip side, you can no longer purchase from any official source a physical or digital copy of Legend of Legaia. And while I understand pirating titles you can't buy anymore, doing this is still a crime. The fact of the matter is that there just aren't very many retro games you can't purchase right now (at least from the ones that people actually want).
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