Nintendo vs. Emulation: The difficulty of archiving games

Nintendo has always been a strong protector of its IP, but the company made some recent moves that were pretty notable. It forced GitHub to take down an online GBA emulator with a DMCA complaint. But the biggest eyebrow raiser was the massive lawsuit that was filed against the companies behind and, coming in at a staggering $100 million in damages. These two moves against the emulation scene have rubbed some in the community the wrong way. But, it’s also once again opened up a long-discussed topic: the importance of preserving retro games. The thing is, it’s a difficult thing to do from an official standpoint, but Nintendo still prefers to work against it.

A company protecting its IP is not new. While some companies are far more relaxed, like SEGA, there are others like Nintendo which tend to be much more strict. What’s probably the most notable example of this is the Disney corporation and their most prized possession: Mickey Mouse. Before Mickey, Walt Disney animated another popular cartoon character in the early 1900s, Oswald the Rabbit. But, he lost the rights to another company (Universal). This created a desire inside of him to have an animated character that he owned the exclusive rights to, which then led to the birth of the now world-famous Mickey Mouse. After Walt’s death, the Disney corporation fought hard to change copyright laws, steadily increasing the length of time a company would have ownership over their creations. As of the latest change, copyrights expire after an entire century has passed. This means that thousands upon thousands of copyrighted works will not enter the public domain (which allows them to be freely used by anyone) until many human generations have passed.

When it comes to classic games and hardware, their copyrights expire 75 years after the date of first publication. Seeing that the gaming industry has only been around for about 30 years at this point, that means that we’re not even at the full halfway point of this period. This is why Nintendo and other gaming companies have been able to flex their legal muscles. Had Disney not been so persistent in getting the US Congress to lengthen the time of copyrights, then chances are the original standard of 25 years would still be in place. This means that many retro titles would be in the public domain by now. So, that massive $100 million dollar lawsuit Nintendo filed last week likely would have no legal legs to stand on and those two sites would still be online. But, of course, regardless of what the laws say, there are still many repositories for the ROM and ISO files of classic games and the emulators needed to play them. Nintendo will likely never take out every last one. But, why are these retro hubs so prevalent in the first place?

Many gamers today were young when the industry first started. So, the classic era is a period of sweet nostalgia for them. It’s an enjoyable experience to be able to go back and play those titles. There’s also young gamers today interested in experiencing the classics for the very first time. In any case, what gets in the way of all of this happening legitimately is the degradation of technology. Many units of those old systems no longer function today, and even if they do, it’s painstaking to get them to work with modern TVs. On top of that, many of the cartridges and discs from that time are also in an unplayable state. Thus, you have those in the emulation scene who’ve taken the time and effort to preserve as many of these old games as possible, making playing them today on modern devices incredibly simple. But you still have those companies (figuratively) knocking down doors with the battery ram that is copyright law.

Keeping old games alive isn’t easy, and copyright laws get in the way of doing this legitimately for both hobbyists and big companies. 

Creating and using ROMs/ISOs and emulators is not inherently illegal. The thing is, there’s a very thin gray area between the border of legal and illegal in this case. For someone to play classic games completely legally without it being on the original hardware with the original software, they would need to be using an emulator that’s running on custom code and doesn’t use BIOS files obtained from an external source. As for the games, they would need to be backups created by the user, who would have to create them by dumping the data from their own original copies of said games. Thus, emulation becomes illegal as soon as file-sharing is involved, and the vast majority of folks using emulators is doing so thanks to file-sharing. This is why Nintendo has constantly been trying to take down emulation hubs as it considers them to be centers for piracy promotion.

Now, I know what you’re thinking. If Nintendo is so concerned about protecting its IP, then all it would have to do is make it easy for people to gain access to these retro titles. And the company has already done so in the past with the Virtual Console service on the Wii, Wii U and 3DS. But, no such service has come to the Switch yet, although there are plans to adopt the idea to a new format in the form of the Classic Games Selection which will be a part of the Nintendo Switch Online service. The only problem with this is that it will require a subscription and currently the only games that are confirmed for it are a handful of NES titles. So, what about the vast amount of other retro games from other systems?

The problem with archiving any of these classic games is making them compatible with modern hardware. It takes resources. The hobbyists that do it out of the goodness of their hearts are not in the same position as a massive company like Nintendo, which is far busier dealing with a lot of complex matters. Archiving film and music is a lot easier since they just need to be adapted to different storage mediums. It’s now easier than ever since they mostly come in a digital format. Games require hardware that can actually run them, not just simply play them like a video or audio file.

RELATED: “How Nintendo Switch Online can be a viable successor to Virtual Console”

But even more so than that, the main issue with game archival is what I’ve been talking about this whole time: copyright law. There are many retro titles out there whose licenses belong to companies that fundamentally don’t exist anymore, but the copyrights are still in effect. This makes obtaining and redistributing the files in a legal way quite difficult, especially for a company like Nintendo which definitely doesn’t want to get slammed with a lawsuit against it. Phil Spencer, the Head of Xbox, pointed to this reason as one of the challenges the Microsoft software team runs into with its own game archival service, Xbox Backward Compatibility. Through it, many titles from the original Xbox and Xbox 360 have been made natively compatible on the Xbox One systems, but they’ll never be able to do that with every single game. The same is true for Nintendo and the Virtual Console/Switch Online Classic Games Selection.

At the end of the day, if you really want to blame anyone for getting in the way of emulation, go after Disney. Rather ironically (if not also hypocritically), Disney has fought so hard to increase the strength of copyright laws while also making billions of dollars off of their adaptations of properties from the public domain. Still, their efforts have set the standards for the entire entertainment industry.

Please note, I didn’t write this piece as a way to herald Nintendo as a big hero; I simply wanted to try and explain why this whole situation is so complicated. I personally do not use emulators and ROMs/ISOs, but back when I was a kid, I will admit that it was quite the opposite. As I got older and learned about these laws, I started to refrain. Now, I’ll enjoy a classic game if it’s legitimately available.

CGP Gray and Alex Meyers created excellent videos on YouTube explaining copyright laws and how Disney repeatedly got Congress to increase them. A lot of the information I used here was gathered from these videos, so please give them a watch for an even fuller explanation on the way the system works:

A.K Rahming
Having been introduced to video games at the age of 3 via a Nintendo 64, A.K has grown up in the culture. A fan of simulators and racers, with a soft spot for Nintendo! But, he has a great respect for the entire video game world and enjoys watching it all expand as a whole.