Nintendo's Offensive, Tragic, and Totally Legal Erasure of ROM Sites

The damage that removing ROMs from the internet could do to video games as a whole is catastrophic.

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Aug 10 2018, 2:17pm

Image: Chris Kindred

Miodrag Kovačević, a 29-year-old game developer from Serbia who currently works on big budget video games, didn't grow up with a lot of money. Importing consoles to Serbia was expensive, so only people who were well off had them. He played many Super Nintendo games at friends' houses or at unofficial "arcades," where he could pay by the hour to play a variety of consoles.

"When I got exposed to emulation and ROMs, I already had a PC, but I basically knew all the games from the previous decade that I always wanted to finish but previously only got to play for an hour or so at a time," Kovačević told me in an email. "It was basically me catching up with something that I felt I was denied as a child."

Kovačević said that he probably would still have an interest in games without ROMs, which allow people to emulate console games on computers, but that he wouldn't understand them as well.

"I am sure the number of games I've gone through thanks to ROM sites has been in the four digits," he said. "My first games writing job was for a retro corner of a Serbian magazine, which essentially was the start of my long road towards gamedev. I don't know if I would have the job I do now if I hadn't had access to ROM sites or piracy."

In July, Nintendo sued two popular ROM sites, LoveROMS and LoveRetro.co, for what it called “brazen and mass-scale infringement of Nintendo’s intellectual property rights.” Both sites have since shut down. On Wednesday, another big, 18-year-old ROM site, EmuParadise, said it would no longer be able to allow people to download old games due to "potentially disastrous consequences."

Even though Nintendo has every right to enforce its copyrights, Kovačević's story makes me sad to see the company lately go after ROM sites, named after the acronym for "read-only memory," which hobbyists "dumped" from the original cartridges onto computers to create ROM images—digital copies, in other words.

"We have been receiving an ever increasing number of takedown notices," MasJ, the 30-year-old software consultant in India who started EmuParadise, told me. He declined to share his real name. "Some of them are directly sent to our hosts. Initially it was game companies or the ESA [the organization that lobbies on behalf of video game companies in the United States]. We have not received anything different recently but the lawsuit [against LoveROMS and LoveRetro.co] was a strong signal to us that these companies will not stop at anything to bring down sites like ours. We always assumed that as long as we comply with take down requests, especially for obsolete content like the stuff we have, it was going to be okay. We were just proven wrong."

Nintendo owns the intellectual property for its games, and when people pirate them instead of buying a Nintendo Super NES Classic Edition or a downloading a copy from one of its digital storefronts, it can argue it's losing money. According to Nintendo's official site, ROMs and video game emulation also represent "the greatest threat to date to the intellectual property rights of video game developers," and "have the potential to significantly damage" tens of thousands of jobs. Even when a Nintendo game isn't for sale, it's still the company's intellectual property, and it can enforce its copyright if it wants.

"I found something almost as great as finding the emulators existed in the first place. People were translating Japanese games! It blew my mind! Getting to play things not intended for us, the 'missing' Final Fantasy games at the time." — Joshua Bray, 36, Cincinnati, OH

But the damage that removing ROMs from the internet could do to video games as a whole is catastrophic. Many game developers and people who have otherwise made video games a major part of their lives, especially those who grew up in low-income households or outside a Western country, wouldn't have been inspired to take that path if it wasn't for ROMs. Entire chapters of video game history would be lost if ROMs and emulation didn't preserve games where publishers failed to. And perhaps most importantly, denying people access to ROMs makes the process of educating them in game development much more difficult, potentially hobbling future generations of video game makers.

"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.

Michael Moffitt, a 25-year-old software engineer in California, told me in an email that he spent most of his time with ROMs as a kid making weird graphics mods for Super Mario Bros, Dig Dug, and Pac-Man using a VROM editor built into NESticle, a groundbreaking emulator that, as Motherboard wrote in 2017, helped turn retro gaming into a modern cultural force.

"I wouldn't be half the person I am today without emulation. It's essential for preserving the history of the art and design of video games." -- Abigail Shoemake, 21, indie game developer from Mississippi.

"I learned to use a hex editor to change palettes too, and was happy to have edited Dig-Dug's palette to better resemble the arcade game," Moffitt said. "Picking apart older games by disassembling them and looking at their graphics with tile viewers is an important part of learning about game design and development techniques, even when working on newer platforms."

What is really beyond the pale, according to Foddy, is that Nintendo's lawsuits or the threat of lawsuits is shutting down sites or forcing them to remove all ROMs from their site, even though Nintendo ROMs make up only a tiny fraction of the content on those sites.

"Most of what Emuparadise was hosting was work by companies that are now defunct and which have little or no chance of being sold legally," Foddy said. "This is one of those situations where copyright law just seems busted—though I assume they’re legally in the right, the companies bringing these takedowns are just committing massive cultural vandalism, in my view."

It would make sense for Nintendo to shut down ROM sites right now, before it launches Nintendo Switch Online, a paid subscription service for its incredibly popular Switch console. In addition to being required for online play, paying for Nintendo Switch Online will also give members access to a library of classic Nintendo games that will expand over time. I can't say for sure that's why the company is going after ROM sites now because it hasn't explained its reasoning outside of what is included in lawsuits, which don't mention the timing. I've contacted Nintendo with this question but haven't heard back.

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."

Even today, when there are ways to legally buy the most popular classic games, the most devoted segment of video game players still rely on ROMs. The speedrunning community, best known for the Games Done Quick events which have raised over $16.5 million for charity to date, uses ROMs to find the quickest way to beat a game and stream attempts of rare games.

"I doubt that I'd be working part time as a video game streamer if not for ROMs," Brian Cook, a 32-year-old English teacher at Utah State University and part time streamer focusing on obscure and "lower quality" games, told me in an email. "One game I play regularly, Alpiner, is a game that came out on the TI-99. The console itself costs about $36 for the computer and $40 for the voice speech synthesizer...Literally no one in their right mind would spend this much money on a console unless they knew the game was worth it. ROMs are that opportunity to explore these old consoles and find gems."

For what it's worth, Cook said, he owns a copy cartridge of Alpiner now, even though he knows the money he paid for it didn't go to the developer or Texas Instruments, which created the TI-99. "I wanted it as a memory for this silly game," he said.

Cifaldi also works with developer Digital Eclipse, which specializes in accurately re-releasing classic video games on new devices. He said ROM sites didn't only keep players' interest in Nintendo's old games during in the years before Nintendo offered a realistic way to purchase them, video game companies literally rely on technology developed by the emulation community.

If you buy the original Doom from Steam today, for example, it will run on your computer using free, open source software called DOSBox, which emulates the DOS operating system. The Retro-Cade, a device which legally licensed and resold games from developers like Capcom, uses emulation software RetroArch, designed to run illegal ROMs. Many of the official re-released LucasArts point-and-click adventure games that ran on the SCUMM engine, now use the fan made, free ScummVM engine. Cifaldi has presented evidence that suggests that even Nintendo itself has resold ROMs that were initially illegally uploaded to the internet, though Nintendo has denied this.

"All emulators are built on the bones that came before it. Emulation in Nintendo consoles didn't come from scratch. There was decades of software to reference created by people who built their own custom hardware to dump ROMs and created their own emulators to play them."

Cifaldi said that even some of the work that Digital Eclipse does today relies on work done by the amateur emulation scene, referencing documentation it created over the years on how to faithfully recreate old games on new hardware. "If it wasn't for the work done already being done by that community these games wouldn't exist," Cifaldi said. "It wouldn't be commercially viable."

Everyone I spoke to for this story is clear about Nintendo's legal standing here. If Nintendo wants to have a ROM site taken down, it can. The question then, is what could Nintendo do to protect its copyrights while not obliterating the community its most devoted fans rely on?

According to MasJ, who started EmuParadise, video game companies should move towards a Spotify model, where users can pay a monthly fee to access a comprehensive library of retro games.

"The demand is there and the only thing you need to do is create it," he said. "I understand that licensing is challenging since the video game industry is far more fragmented than the movie or music industry. But it's a worthy challenge and hopefully we'll see something like this sooner rather than later."

Cifaldi agreed.

"I think the reason we don't have Netflix for games is because Nintendo demonized emulation," said. "Emulation is just a tool, and it's the best possible tool for running old games."

While this suggested solution is better than the current paradigm, it only accounts for games that Nintendo and other companies want to sell customers again. To game developers, historians, and even speedrunners like Cook, it's often the lesser known games that are more interesting.

Cifladi's Lost Levels site, for example, focused on preserving games that were never released, something people could only do by dumping ROMs. Cook is currently spending time on his Twitch channel playing Monkey King, an unlicensed game for the NES developed in China, which wasn't only preserved thanks to ROMs, but also translated to English by fans so more people could play it.

"The worst part about to me is that the film industry already learned this lesson," Cifaldi said. "Ninety percent of films pre-1930 don't exist anymore because they were made to be sold once and then never again."

According to Foddy, if Nintendo was serious about making sure all its older games were available for sale on modern platforms, he wouldn't be so concerned about it chasing their own ROMs off websites like EmuParadise.

"But they aren’t—they make their most popular titles available and let the rest disappear," Foddy said. "Where is Clu Clu Land on the Virtual Console? Where is the amazing Famicom-only two-player version of Excitebike? They’re not on there, so if the ROMs are successfully taken down then the games are just erased from history." (Clu Clu Land and Vs. Excitebike did eventually make it to Virtual Console, but other rare games, like Adventures of Lolo 3 and unlicensed games, didn't.)

"I can tell you that as a game designer, I find the most clever mechanics or solutions in some very rough, average or bad games," Kovačević said. "So, we have companies enacting their right to these games, but because their alternatives are so poor, it ends up taking away from a medium that is already really bad when it comes to preservation."

It's important for me to highlight Kovačević's experience because it reflects my own. Super Metroid for the Super Nintendo Entertainment System is one of my favorite games, but I never played it on a Super Nintendo. As a kid, I was lucky enough to have parents who bought me an SNES and a few games a year, but I could never play everything.

I was born and raised in Israel, and like most people in countries where Nintendo doesn't have an official presence, many times I couldn't legally get my hands on a Super Nintendo game even if I could pay for it. If a local store didn't import a game itself (at huge costs passed on to the customer), or someone I knew wasn't coming back from the United States or another country where Super Nintendo games were widely available, I was out of luck.

As a teen, however, I learned that I could run an SNES emulator on my computer, and quickly started downloading all the Super Nintendo games I never had access to before. It was one of the most exciting things that I did on a computer up until that point. ROMs, along with other forms of video game piracy, gave me access and an education about video games, which allowed me to get work writing about video games right after high school, which is probably how I ended up working at a technology website. I know from personal experience that people aren't exaggerating when they that ROMs had a significant impact on their lives.

As Foddy said, ultimately Nintendo's lawsuits would make sense if the company saw a demonstrable benefit from taking down ROM sites, but it doesn't. Nintendo's fortunes have gone up and down in the decades since ROM sites became popular on the internet. The Wii U was a sales disaster and sold few games. The Nintendo Switch is a hit, and is selling a lot of games. There are many reasons for why this might be, but it's hard to imagine how taking down a hacked, translated copy of Monkey King makes a difference.

"It is just a harm," Foddy said. "People in these companies who love the medium of games should not let it continue."

Correction: As a reader has pointed out, this story originally didn't note that Clu Clu Land and Vs. Excitebike did eventually release on the Nintendo Virtual Console. Motherboard regrets the error.