0613 GMT March 25, 2019
Last week Nintendo sued two long-standing emulation sites: LoveRETRO and LoveROMs.
It’s not the first time emulation’s come under attack, but it was noteworthy in part because of the absurd damages Nintendo cited: $2 million for illicit use of their trademark, plus $150,000 for each Nintendo game hosted, pcworld.com wrote.
It's ridiculous. Those amounts have no basis in reality. Like the days when the MPAA went around suing random torrenters, Nintendo levied the sort of threat designed to make sites immediately genuflect and then beg for leniency — and that’s exactly what both sites did, removing all Nintendo ROMs and in the case of LoveRETRO shutting down completely.
Now it’s spreading, with EmuParadise announcing that it was preemptively pulling all ROMs from its site. Immense damage is being done to an old and well-established community in a short period of time, a community that's almost singlehandedly kept game preservation efforts alive for decades, and for what?
“Legally gray.” I’ve used this term countless times while discussing emulation. Here’s the letter-of-the-law version: Technically it’s legal to distribute the emulation software, i.e. bsnes or PCSX2, and also legal to dump your own BIOS or ROMs.
It’s illegal under the current rules to distribute the BIOS or any ROMs though — and it has been illegal, for decades. Let’s be clear: Nintendo is 100 percent within its legal rights to go after emulation sites and sue them into the ground. There is no ambiguity.
Having the legal right doesn’t necessarily make it morally right though.
So let’s go over what Nintendo gains from all this legal action: Almost nothing. Sure, $150,000 per infringing ROM is a lot for LoveRETRO, but it’s lunch money for Nintendo — not to mention, money Nintendo almost certainly knows it’s not getting.
Nintendo also sells old software though, right? The Wii’s Virtual Console convinced a ton of people to buy legal copies of Nintendo classics.
The last two holiday seasons have revolved around Nintendo’s elusive NES Mini and SNES Classic console refreshes. And later this year Nintendo will roll out a subscription service, Nintendo Switch Online, which will dole out a selection of retro games on the Switch for a yearly fee.
Thus we wade into the same swamp as modern-day game piracy. “How much does this actually affect sales?” “Would these people buy the games if there were a legal option available?” “Is Nintendo losing money?”
Nintendo obviously thinks so, and Nintendo is treating emulation as a direct competitor. Understandably, I might add. I’ve joked about it in the past, asking why anyone would buy a SNES Classic with around 30 games when they could build out a Raspberry Pi retrogaming console and include the whole SNES library. Is Nintendo actually losing sales? Probably not many, but it’s the most viable reason for a lawsuit.
It’s hard to care about Nintendo’s bottom line when the stakes are the entire industry's historical record though — which brings us to the heart of the issue, game preservation.
It’s ironic that a digital industry is so terrible at preserving its history. Digital is forever, right? It’s just 1s and 0s, immutable code, ageless. Archiving film or ancient documents or whatever, the problems are physical — celluloid rotting or catching fire, paper succumbing to moisture or falling apart under harsh lights.
But games? The problem is nobody cared. Or not that nobody cared, but that so few companies cared, and that they continue to not care. The situation’s gotten slightly better in the last decade or so, with remasters and remakes like Crash Bandicoot and Baldur’s Gate II and Homeworld and System Shock reviving classics for a modern audience.
Remasters cost money though, and are (understandably) meant to make money. Thus we get the one-percent — the games so notorious or so beloved they’ll sell a second, a third, or even a fourth time. They're important games, don’t get me wrong. It’s fantastic that Shadow of the Colossus can still resonate with people in 2018 the way it did in 2005. I never would’ve guessed.
*Hayden Dingman is games reporter in PCWorld.