Nintendo Using Copyright To Erase Video Game History

Just recently, Tim Geigner wrote about how Nintendo's success with the relaunched Nintendo NES Classic showed how the company successfully competed with free, because there are plenty of NES emulators that can play ROMs for free. And yet, the NES Classic comes in a neat, easy to use package. And it's worth buying if only because it looks cool -- just like the original, but... tiny. I should know: I have one and it's great. And my wife can't stop playing Mario Bros. on it, though she keeps complaining about other games from her youth that are missing.

But, of course, this is Nintendo we're talking about, so it's been busy, busy, busy suing a bunch of ROM sites and scaring others into shutting down. The site EmuParadise shut down recently with the following as part of its farewell message after 18 years in operation:

It's not worth it for us to risk potentially disastrous consequences. I cannot in good conscience risk the futures of our team members who have contributed to the site through the years. We run EmuParadise for the love of retro games and for you to be able to revisit those good times. Unfortunately, it's not possible right now to do so in a way that makes everyone happy and keeps us out of trouble.

Motherboard has an excellent article pointing out that while Nintendo may be legally correct, the whole situation is ridiculous and offensive. And also counterproductive. Having emulators and game ROMs around is what has enabled many of these games to live on (there are even some rumors that Nintendo has used the ROMs itself). The Motherboard article has a number of different stories about how the whole thing is tragic, but one area where I think it's important culturally, is the historical aspect of it all:

"As a professor, I very frequently see students spinning their tires trying to solve problems that were already solved in 1985," Bennett Foddy, who teaches at New York University’s Game Center and is the developer of games like QWOP and Getting Over It, told me in an email. "And just as you would if you were teaching painting or music (or math), what you do as a teacher is you send them to the library to study the old classics, to see what they did right and wrong. That’s the only way we can make progress in the sciences, the humanities, or in the creative arts."

The problem is that even though NYU has a good collection of classic console hardware and games, it only covers a minuscule proportion of the total history of games. It doesn't include 8- and 16-bit computer games, which were distributed on magnetic media which has long since been corrupted. It doesn't include coin-operated games, which are prohibitively expensive for a library even today, and which are harder to access than ever now that arcades are practically gone. And, of course, most people who are getting into games don’t have access to NYU’s library at all.

"If I was teaching poetry, I could send a student to read nearly any poem written since the invention of the printing press, but in games my legal options limit me to, I would guess, less than 1 percent of the important games from history," Foddy said.

And while the article insists that Nintendo completely taking down these sites is perfectly within its purview as the copyright holder, I'm not convinced that's fully the case. They certainly have the right to get ROMs of games they hold the copyright on to be taken down, but killing the entire sites, even though they have plenty of non-Nintendo games feels like it's going too far.

And the problem here isn't necessarily Nintendo (though, it partially is). It's really a copyright problem. Any sane copyright policy would have allowed most of these games to enter the public domain by now. The games I played in 1984, which then spent decades completely abandoned, should be in the public domain for anyone to make them useful again. That's what's mostly happened informally, and as the Motherboard article notes, that's likely what has helped create this kind of interest in Nintendo's retro gaming platforms today:

Frank Cifaldi, the founder of the Video Game History Foundation, told me he believes that the popularity of these ROM sites is the only reason Nintendo is selling the Nintendo Super NES Classic Edition and old games on the Switch in the first place.

"I don't think the business I'm in exists without emulation," Cifaldi told me in a phone interview. "I think the video game community would have totally moved on if it wasn't for easy access to old games. I don't think the Nintendo's Virtual Console [the official portal to buy old Nintendo games on Wii U, Wii, and 3DS] would exist. It proved the market was there."

But rather than recognize that community and support them, Nintendo is suing and shutting them all down. And it's truly a shame. Basically, thanks to insanely long copyright, and oppressive copyright holders like Nintendo, we're seeing copyright being used to eat away at our history. I talked about this back when the Internet Archive started putting up historical software (including lots of games) that actually could be played in your browser. It's great that the Internet Archive is able to do this, but at this point, the Archive appears to be the only one able to do such work without the threat of a destructive copyright lawsuit.

I know that some will point out that Nintendo has this copyright and has every right to do what it wants, but that doesn't mean we shouldn't lament the actual way in which this is happening. Fans built the community around emulators and ROMs, and Nintendo abandoned them for decades. And now that the company feels it can cash in on the nostalgia that others helped build and cultivate... it's destroying those sites in the process. That seems like something copyright shouldn't enable.

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