Nintendo, emuparadise, and the great games preservation debacle

Late last month, Nintendo filed to sue against two ROM websites — LoveROMs and LoveRETRO — seeking $150,000 per copyright infringement and $2 million for each trademark infringement. Considering the number of Nintendo developed and published ROMs hosted on the site (let alone all the games that are on Nintendo systems in general), that adds up to well over the reasonable limit for any company smaller than a multinational corporation. LoveROMs quickly took down every Nintendo related emulator and ROM download, and indefinitely shut down LoveRETRO. In a vacuum, this is another mere, misguided power play on Nintendo’s part — but repercussions would become far more impactful.

Because a few days ago, emuparadise — long considered a major destination for retro ROMs, ISOs, and emulators — announced that, at the “risk [of] potentially disastrous consequences,” they would no longer be hosting game downloads on their website. While you can still get legal emulators for a variety of consoles there, site founder MasJ writes that “you won’t be able to get your games here from now on.”

As one of the biggest emulation sites on the web, emuparadise’s effective shutdown has sparked a torrent of debate, discussion, and debasement of Nintendo for prompting such action. While the announcement contains no assertion that threats of legal action or DMCAs from Nintendo played a part in the decision, the timeline of events shows the clear fear that the folks at emuparadise had over their repository of games. But there’s even more to the picture than that — more that shows that such actions, while understandable from a copyright angle, have potentially dangerous consequences for the future preservation of old games.

Disclaimer: I am not a lawyer, and thus my understanding of the legality of these issues is tenuous at best. The point of this article is not to determine whether such sites are legal, but rather talk about games preservation and Nintendo’s role in it.

Nintendo has become notorious in time due to their policies on Nintendo content on the web — most notably their ongoing shellacking of people who play Ninty games on YouTube (one that no other current big-name publisher has) and their DMCA of fangames like Another Metroid 2 Remake (which became slightly more understandable in retrospect due to the existence of Metroid: Samus Returns.) They are also one of the more stringent companies when it comes to ROM sites, issuing takedowns and DMCA notices quite often, in no small part because their consoles and games tend to get downloaded more than others. (Look at the top lists on most ROM sites and they’ll be inundated with Pokémon.)

However, many of these ROM sites play an important role in an area in which few companies or people have taken a vested interest: games preservation. As time marches on and the vestiges of gaming’s past grow ever older, many games become rarer and rarer within the marketplace, not helped by the fact that wear and tear means many left unmaintained eventually break. ROM sites provide databases of many old titles that to the layman would be impossible to play otherwise, as many systems become incompatible or difficult to work with modern hardware.

“But slow down,” you might say, “doesn’t Nintendo release older games on modern platforms?” Which is a valid point… to a degree. On the Wii, Wii U, and 3DS, Nintendo released many older titles that would be difficult to acquire otherwise. And in the past couple of years they’ve released both the NES Classic and the SNES Classic, which collect some of the finest games on each platform into a plug ‘n’ play console — and there’s nothing to suggest they can’t do the same with other consoles like the N64. There’s even a collection of NES games that will be included with Nintendo Switch Online when it launches next month.

The problem with these approaches is that they’re quintessentially limited to some degree. The Wii had the largest collection of VC titles, but they dwindled much more on Wii U and 3DS, and — surprise! — you can’t purchase shop points on Wii anymore, effectively rendering the entire catalogue moot. And while the (S)NES Classic is great in concept, it’s limited to its own, small library unless you hack it… in which case you run into the ol’ piracy dilemma. And while NES games for the Switch is neat and all, it will run into the same fundamental problem: the games you can play are curated by Nintendo, and not by the player’s own discretion, thereby making the selection limited.

So if you want to boot up Super Mario Bros. 3 and give it a whirl, there are a variety of ways to do so, but if you want to try something that isn’t available on a current platform — say, Dragon Warrior — you’re out of modern (legal) options. Not to mention that at some point the Wii U and 3DS shops will inevitably become dysfunctional like the Wii one, meaning that if there’s not a replacement platform for retro games, your only option becomes shelling out for an old cartridge and something that can run it, whether it be a Retron or the legitimate console. And that’s not always cheap.

Let’s cite two of the great examples of why this is an issue — Fire Emblem: Path of Radiance and Fire Emblem: Radiant Dawn. These games are not even particularly old or obscure relative to many others, but their prices are exorbitant on the current market: Path of Radiance goes upwards of $200 used. Radiant Dawn fares better, but most of its listed prices are still above its original MSRP. So if you played Smash Bros. or Fire Emblem Heroes and wanted to know why that Ike fellow is so popular, you have two options: shell out literal hundreds of dollars, or don an eyepatch and sail the seven seas. In that market, it’s no wonder why many turn to emulation.

There is also the present (if perhaps smaller) issue of games that are not localized or released internationally. While the freeing of region locking has improved this issue greatly as far as the Switch is concerned, there are still many games of old (the first six Fire Emblem games, many obscure RPGs, Mother 3) which, if you want to play in English, you have to find a ROM and the means to patch it.

“But,” you may say, Mr. Strawman Devil’s Advocate, “why does this matter? So what if people can’t play some old games? Nintendo is just trying to protect their IP. You’re probably just trying to avoid actually paying for games, you scallywag.” To which I profess there have been a couple times in my youth when I did such a thing, and in the time since I’ve done my best to purchase any game I wrongfully pirated. But among those games is an anecdote which I feel proves my larger point more fully:

In mid-2008, I did as many 12 year-olds of the aughts were wont to do and browsed GameFAQs in my spare time. The release of Super Smash Bros. Brawl and the burgeoning Virtual Console market had piqued a great deal of my interest in many retro games, and one day I stumbled across a game I had often heard of but knew absolutely nothing about: EarthBound. Reading through the walkthroughs, I became interested in the game and its world, and wanting to play it, decided to carefully watch the Virtual Console release schedule for when it would come out.

Unfortunately, as my browsing of topics on the game soon revealed, that was something that probably wouldn’t be happening anytime soon. Due to suspected legal issues a rumored VC release on Wii never materialized. And the game’s growing cult status — coupled with the extra popularity from Smash exposure — meant that carts of the game were going for upwards of a hundred bucks used. I didn’t even own a SNES or a TV with the right component slot. If I wanted to get my hands on this game that intrigued me, I had two choices: spend a boatload of money that I didn’t have on a game I couldn’t afford, or hoist the skull and crossbones. And to that, I said “yo ho, yo ho” and downloaded an emulator for the first time in my life.

EarthBound would go on become my favorite game ever.

The day it released on Wii U in 2014, I bought it without a second thought. And I did the same when it came out for New 3DS, and SNES Classic. I still want to get it physically one of these days, and I’ll probably buy it on whatever platform or service Nintendo puts it on next. And sure, I could have waited six years and played it legally then, but it wouldn’t have been as impactful as it was in my life at the time I did play it. So because of emulation, I was able to experience the most important game at the most impactful moment in my life.

For me, emulation of any game more than a generation or two old isn’t about money — had EarthBound released on Wii back then, I would’ve easily shelled out eight bucks for it — it’s about accessibility. There are many games out there whose obscurity dooms them to only collector’s shelves or even complete oblivion; lost forever unless uploaded online. It’s true that it’s different for a bigger name title that can easily be tracked down digitally today. But for many older games, there is either emulation, or there is nothing.

Nintendo has the legal right to protect their copyright. But there needs to be a way to preserve older titles for future generations; a method by which games of the past can still be easily accessible to the people of today. It’s impossible to fully quash ROM sites, but the popular titles that Nintendo would care about will always pop up — it’s the lesser-known games that will suffer, erased in the destruction of larger sites. And that’s just a shame.

 

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