Nintendo’s aggressive approach to copyright protection is generating a huge amount of bad feeling within gaming circles, wrecking attempts to preserve game history and disconnecting itself from its most passionate fans.
That's the view of many die-hard gamers who have spoken out after the company hit the owner of two websites – LoveROMS and LoveRetro – with a lawsuit, which has effectively forced them to shut down.
The sites were among dozens that allowed gamers to play older titles from many big companies for free, by downloading copied software, known as ROMs, along with console emulators. Fans also used the sites to share their own homebrew games.
“Sadly for Nintendo, lawsuits attacking ROM sites do not sit well with their customers, despite Nintendo being completely within its legal rights,” says Andy, who prefers to only use his first name, and works for the copyright and file-sharing news publication TorrentFreak. “It sullies memories, generates bad feeling and is unlikely to do much for the company's bottom line. It certainly won't stop people 'pirating' and playing retro games."
Andy praised Nintendo's incredible contribution to entertainment, but added: “While the company's coders have an uncanny ability to understand and manipulate emotions – to immerse, thrill and enthral – there seems to be a huge disconnect when it comes to retro gaming.”
While Nintendo undoubtedly has every right to safeguard its intellectual property, many in the industry are critical of its heavy-handed methods. “I am completely sympathetic to Nintendo’s need to protect its properties,” says Frank Cifaldi, founder of the Video Game History Foundation, “but where it has crossed the line, is that by shutting down these sites, it’s asking the owners to give up all the ROMs, not just Nintendo ones.” Cifaldi adds that it’s unfortunate that the actions of one company have “killed the ability to access 99.9 per cent of content, which he argues Nintendo has no claim over. “I don’t think that it’s lawsuit can really be considered an attack on its own fans though. It’s just a business reality.”
Nintendo did not respond to a request for comment. A copy of the lawsuit was obtained by TorrentFreak. In it Nintendo stated that “defendants have conducted their online piracy business in wilful disregard of Nintendo's rights”.
Nintendo is seeking up to $150,000 for the infringement of each copyrighted work and up to $2,000,000 for the infringement of each of its trademark. That adds up to many millions of dollars, given that most ROM sites host thousands of copyrighted works.
While the company has always been extremely defensive of its intellectual property, its lawyers appear to be taking a bolder stance. Previously it tended to send individual takedown notices or cease-and-desist letters to owners of ROM sites. Despite this, the sites continued to operate – some for up to 20 years.
EmuParadise began operating in 2000. Last week its founder MasJ revealed that the site would no longer host ROMs due to Nintendo's legal actions against other sites. “We've always complied with takedown requests but as you can see, that is no guarantee of anything,” he wrote in a statement. “I started EmuParadise 18 years ago because I never got to play many of these amazing retro games while growing up in India and I wanted other people to be able to experience them.”
Emulators first became popular in the mid-to-late 90s, when the number of households with reliable internet connections increased rapidly. Dozens of sites sprung-up to serve a dedicated community of gamers looking to recapture childhood memories. Some sites just provided emulators, others included a vast selection of ROMs.
The site owners did not own the copyright to games that had once been commercially available, however. This created friction with firms such as Nintendo. Over the years, the company has made no secret of its dislike of emulators and ROMs. It even has an extensive section on its website dedicated to criticising them.
Nintendo’s website states that ROMs are not authentic games and that “distribution of an emulator developed to play illegally copied Nintendo software hurts Nintendo's goodwill”. It also insists that it's illegal to download ROMs even if the person owns the original game – a point that is contested on gaming forums.
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Fans have a different perspective to Nintendo. They feel their actions caused little financial harm to the multi-billion-dollar gaming industry and that they were helping to preserve cult games that would otherwise have faded into obscurity. None of the sites' creators claim to have become rich through their sites. For MasJ and others it was simply a labour of love.
“Through the years I've worked tirelessly with the rest of the EmuParadise team to ensure that everyone could get their fix of retro gaming,” MasJ wrote. “We've received thousands of emails from people telling us how happy they've been to rediscover and even share their childhood with the next generations in their families.”
Once games had left retailers' shelves, people had limited options to purchase them. The quality of those found in second-hand shops varied, and rare or lesser-known games were impossible to find. Emulators changed all that.
A lot has changed since the mid-90s. Back then the true potential of the internet, and its effect on popular culture, had yet to be realised. As the music industry waged war on file-sharing sites, the gaming sector was also forced to consider the internet’s impact on its profits. While it embraced streaming and online stores, until very recently it had yet to fully captialise on retro gaming's popularity.
Then along came the NES and SNES Classic Mini editions, which immediately sold out and left consumers scrambling to secure one. Now Sega is getting in on the act. It is reportedly launching a mini Mega Drive this year and has also allowed Paramount to develop a new Sonic the Hedgehog film, starring Jim Carrey as Doctor Eggman.
But perhaps the most significant development, which is surely linked to Nintendo's recent lawsuit action, is the Switch console's soon-to-launch online service offering access to classic games.
Retro gaming is now big business and getting your fix without downloading ROMs is easier than ever. Some players, such as Gary Palmer of the retro games website Killer Gaming, avoid emulation altogether. “I like to own the tapes, carts or discs," he says. "The packaging and literature of the game is important to me. Having had two hard drives crash at the same time, and I lost all my music, games, and design projects, I put my trust in the physical over the virtual.”
There are also high hopes that a “Netflix of games” might be on the cards. Cifaldi was once involved in GameTap, a project that aimed to fulfil this dream. GameTap didn't succeed in the long run, but he's convinced that another company will take up the mantle. “There is no technical reason why we can't have a Netflix of games,” he says. “It's being held up by the upfront costs and licensing fees, but many companies are capable of launching the project. It's inevitable that it will happen eventually.”
Where does that leave ROM sites? As far as Andy's concerned, they still continue to “fill players with dreamy nostalgia that can only benefit Nintendo and other games companies long term". But Nintendo strongly disagrees and if the lawsuits keep coming there may be no future for the sites that provide a free way to enjoy cherished games of the past.
This article was originally published by WIRED UK