Nintendo Makes It Clear that Piracy Is the Only Way to Preserve Video Game History

After more than a decade online, Nintendo will be shutting down the company’s Wii Shop Channel this Wednesday. Nintendo removed the ability to purchase in-store currency (Wii Points) last March, and starting January 30, users will no longer be able to purchase any WiiWare or Virtual Console games from the service. On its surface, the company’s move is easy to brush aside as the natural, evolutionary demise of a service tied to an aging console. Especially given Nintendo gave customers plenty of time to spend any remaining Wii Points long before the storefront was shuttered. But the day Nintendo pulls the plug on the Wii Store Channel should be a strong warning those who care about video game preservation, and any consumer who uses a digital store: We often don't truly own products we buy digitally, and when one of these digital stores go down, piracy is often the only way to preserve its history. As it stands, even after the store officially closes, Wii users will be able download any past titles they’ve purchased and downloaded from the Wii Shop Channel, provided they can fit them on either the Wii’s internal storage or an additional SD card. However, Nintendo said that in a yet unknown point in the future, the company will close all services relating to the Wii Shop Channel, "including the ability to redownload WiiWare and Virtual Console games, as well as the Wii System Transfer Tool, which transfers data from Wii to the Wii U system."

That means that if the games users bought from the Wii Shop Channel are not already downloaded, or if whatever storage device users put them on is destroyed, they'll lose them for good. Users could buy the games again from the Wii U's Virtual Console, and they might be able to get them from Nintendo's new subscription service on the Switch, but they'll have to pay for it.

"What sucks here is that Nintendo didn't build the infrastructure to allow people to support these games," Frank Cifaldi, the founder of the Video Game History Foundation, told Motherboard in a phone interview. "It might be indicative how new Nintendo was to the Internet during the Wii era. Maybe they didn't build it with the future in mind."

Nintendo did not respond to a Motherboard request for comment.

The Wii Shop Channel wasn't the first time Nintendo allowed users to download games (the Satellaview offered downloadable content way back in 1995), but it was a good, legal way to play many of the company's classic games outside of tracking down old, physical copies. The Wii Virtual Console offered hundreds of games. At the moment. Nintendo Switch Online offers only 31 NES games. While Nintendo said it's going to expand this library, likely with well-known classics like other Zelda and Mario games, there's no guarantee it will offer more obscure games like Clu Clu Land, which was available from the Wii Virtual Console, and is still for sale on the Wii U Virtual Console. Will Nintendo keep offering obscure, old games and spend money on hosting them on the company's servers if they're not going to turn a profit?

"I think the fact that you've haven't seen so much obscure stuff since [the Virtual Console] tells you something about Nintendo's issues [with less known games]," Cifaldi said.

In the digital era, companies increasingly pull the rug out from under products consumers may falsely assume they actually own, notes Case Western Law Professor Aaron Perzanowski, whose last book The End Of Ownership highlighted this problem extensively. “This situation is most reminiscent of Microsoft’s decision in 2016 to shut down its Xbox Fitness platform,” Perzanowski told Motherboard in an email. “Customers who thought they had purchased exercise content were told by Microsoft that it would no longer be available to download or access. The decision earned Microsoft criticism at the time, but given the relatively small user base, the story didn’t seem to get much traction.” The quest to undermine consumer software ownership extends well beyond video games. As part of their effort to abuse copyright to monopolize repair, manufacturers like GM and John Deere have long claimed consumers don’t actually own the software in the vehicles and tractors they’ve spent thousands of dollars on. The trend of eroding consumer ownership post sale isn’t just reserved to software. Hardware manufacturers now routinely brick expensive electronics they no longer want to support, or downgrade a video game console’s functionality post sale, again confusing customers who thought they owned a product, only to suddenly discover post-purchase caveats. In Nintendo’s case, Perzanowski theorizes that the company either didn’t want to pony up the cash to protect the integrity of consumer purchases, or it simply wanted to force users to buy those same titles all over again.

“It could just be a pure economic calculus; the store costs more to maintain than it generates,” Perzanowski said. “If there are third party titles in the store, Nintendo might be unwilling to extend existing licensing agreements for those games. Or the decision might be related to some other platform or service Nintendo plans to roll out in the future that would otherwise compete with the Wii store.” When companies make it too difficult for consumers to get the content they want (or hell, already own), users tend to flock to piracy as an alternative. Studies have shown that the best way to counter this copyright infringement is to focus on innovation; like making content cheaper and easier to access. In this case, Nintendo’s doing the exact opposite.

The company has made a habit of going after the largest, illegal distributors of its old games recently: ROM sites. As we wrote back in August, when Nintendo took down some of the biggest ROM sites on the internet, many people, including game developers, lost the only way they could access these games. Nintendo is well within its legal rights to take down ROM sites, but as Cifaldi notes, that puts video game preservationists in a difficult situation.

"Right now I can't legally add any of these games to our library," he said. "There's no legal way of doing it."

The fact that it's illegal to download these games hasn't stopped people from doing it. While the big ROM sites are gone and no clear alternative has popped up, it is still possible to find copies of all the games the Wii Virtual Console offered on the internet. For an accurate historical record, the Internet Archive is now even hosting the Wii Shop Channel's HTML frontend (meaning the icons, manuals, descriptions), so future generations could see what it looked like.

"I'm not worried about the complete absence of zeros of ones from the world, piracy will always find a way, I just am very worried about everyday people being able to find and discover this stuff and be inspired by it," Cifaldi said. "My big concern with video games going away like this is them not inspiring the artists of the future."

Cifaldi noted that the work of Toby Fox, developer of the indie hit Undertale, is rooted in access to old games, as are the developers of Sonic Mania (widely considered to be the first good Sonic games in years), who got their start making fan games by hacking ROMs.

"It was the backbone of a commercial product that was making a lot of money for the company. I don't know how we'll make new art from old games," Cifaldi said.

Given the complicated nature of these debates, many users may not fully comprehend just how they’re being screwed. It might seem like everything you bought from iTunes or Steam will be yours forever because Apple and Valve are too big to fail, but if those companies ever decide that it's too expensive to let users download what they paid for, there's no guarantee you'll have access your games and movies. Keep in mind that the Wii wasn't some unknown, failure of a device. It was a massive success, with over 100 million units sold, making it one of Nintendo's most popular consoles. The Wii U, which is the best place to get these games once the Wii Store Channel is gone, sold only 13 million units. There are potentially millions of Wii owners who could lose access to their games unless they transfer them to a Wii U, which is not easy to get these days. Nintendo stopped manufacturing the Wii U in 2016, which has made them harder to find. You could buy a new Wii U from Amazon, but it will cost around $600.

Other consumers may simply view such behavior as unavoidable, Perzanowski said.

“Unfortunately, I think consumers are starting to see these moves as inevitable,” he said. “Especially for sophisticated digital consumers, like gamers, there is a growing sense that companies are likely to abuse their authority in ways that harm consumers.”

Whatever Nintendo’s motivation, there’s going to be plenty more behavior where this came from from other industry giants, and regulators like the FTC should do a better job ensuring that companies live up to their promises when it comes to product ownership.

Consumers need to do a better job fighting back as well, Perzanowski said.

“Consumers need to be vocal in their objections to these sort of bait and switch tactics,” he argued. “They need to develop a longer memory and vote with their wallets. These firms rely on consumers getting over their temporary outrage.”