Nintendo Using Copyright To Erase Video Game History
from the wrong-lesson dept
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.
Filed Under: competition, copyright, culture, games, nes, nes classic, roms
Companies: nintendo
Comments on “Nintendo Using Copyright To Erase Video Game History”
Infinity Minus One
A reasonable copyright scheme would recognize the rapidly moving culture. 70 years after the death of the last person involved in a video game seems kinda like a stretch when the games are no longer being sold.
Re: Infinity Minus One
What if the copyright is assigned to the company?
Does that mean 70 years after the dissolution of the company? That could be never.
Either way, it’s a sad state of affairs.
Re: Re: Infinity Minus One
Thankfully, no. In my understanding, that would be considered corporate authorship (in other words, works made for hire) and the copyright on such things is 120 years from creation or 95 years from publication.
This is exactly right, and it reaches well beyond games; it’s a massive problem throughout the software industry. Because we have a copyright regime that incentivizes closed-source software distribution, we end up with essentially the only medium in all of the creative arts or engineering disciplines where the development techniques of a masterpiece cannot be studied because they can’t be known.
Instead of Foddy’s university libraries, imagine a world in which the only literature students who could study and learn from the techniques of Hemingway’s work were those who went to Hemingway University or went on to get a job at HemingCorp, which would have his work available but lacked access to Mark Twain, Jules Verne and Victor Hugo. This sounds absurd, but it’s exactly the state of software development today, and a big part of the reason why we have so many quality problems in computer programs.
Contrast this with actual literature, where the ability to read and analyze the words that went into a book is inherent in the medium. I’ll always remember something I heard bestselling author Brandon Sanderson say after someone compared his work favorably to that of Robert Jordan: "the only reason you’re saying that is because I had an unfair advantage. I was able to start out my writing having read and learned from the work of Robert Jordan, and he wasn’t."
Re: Re:
Except that there is all that free and open source software just a git clone away. If it is not quite up to the closed source equivalent, then maybe the students can start their portfolio by submitting a patch to close the gap. Being able to point to accepted patches helps when it comes to getting a job.
Re: Re: Re:
The Wonderful Open Source Panacea. Sadly, it still doesn’t cure cancer!
Re: Re: Re:
This is incredibly naive that people working strictly on a volunteer basis, and especially most students who are just trying to pass a course, are going to add functionality to open source projects to rival the functionality and usability of software created by software corporations collectively funding billions on research and salaries. Open source is not a silver bullet to the software industry’s woes that were, to a large degree, created by itself and aided and abetted by politicians expressly to A) limit competition and B) to ensure a continuous flow of income through both copyright licensing contract and patents.
I don’t support copyright at all any longer as the legal framework we now have is just another way to legally create cartels and monopolies that are inherently hostile to the public good in all industries that it touches. Regulatory capture has long since been the rule in all government agencies and legal frameworks and copyright is the poster boy for it.
Re: Re: Re: Re:
Where students are required to carry through a project to gain their degrees, an option to contribute to an open sources project comes with added benefits when the student starts out on that job hunt. I had this code accepted by project Xis a worthwhile addition to a C.V., and it also demonstrates an ability for team work, and to conform with project standards.
Further, open source projects have a range of bugs and feature requests, giving a student an opportunity to find something that matches their skills and interests. Contributing to open source can also give access to mentoring in software design and knowledge behind software solutions, and expands the expertise on tap beyond that which is available in the university.
Which newly minted graduate would you employ, the one who claims that they did a project to do X while at university, or the one that makes a similar claim but had the code accepted by an open source project.
Re: Re: Re:2 Re:
You mean, would I hire a capitalist or a socialist? Easy answer.
Re: Re: Re:3 Re:
What does that have to do with anything? It literally has no relevance on the discussion at hand. That’s like saying “would I hire a man or a woman? Easy answer”. That’s discrimination based on who you are or what you believe, not your proven technical ability. The only time such a political distinction would matter is if the job you are hiring for is the leader of a country, not a code monkey.
The correct answer is “whoever has the proven technical ability to do the job I’m hiring them for”.
Re: Re: Re:4 Re:
The correct answer, as ever when “socialist” comes up in these kinds of conversations is “I have no idea what the word socialist actually refers to).
As per the above – he’d reject the person whose work is available for you to see, has been audited and reviewed by his peers as “socialist” in favour of the guy who claims to have something you can’t evaluate.
He is right – it is an easy answer, but probably not the one he’s thinking of.
Re: Re: Re:3 "Socialist"
Is this a dog whistle thing? Or a virtue signalling thing?
I’ve never really understood dog whistles or virtue signals as they indicate mindless adherence to ideology as a deontological more, which is dangerous.
Courage, duty and honor are weapons used against a soldier by his higher command.
Re: Re: Re: Re:
I would like to introduce you to pfsense, an open source firewall that rivals the vast majority of corporately developed firewalls.
And pfsense isn’t the only example, there are many open source software projects out there that do in fact rival corporately developed products. Libre Office is another example, there’s another big one I’m thinking of, what is it, hmm, oh yeah, Android. You do realize that is open source right?
Then there’s Linux, Audacity, Apache, Firefox, Chromium, ubuntu, WordPress, VLC Media Player, irc, Filezilla, Gimp, Handbrake, Notepad++, 7-zip, Blender, ClamAV, and the list goes on and on.
Open source has been proven, time and again, that it is just as functional and useable as closed source. And in many cases, even more so.
Re: Re: Re:2 Re:
I think open source utilities and copyright really don’t mix in the gaming sphere of things. Would I use an open source version of firefox version 1? No. It isn’t useful and probably unsafe to use. Would I play emulated NES games. Yes. I thought it was great that Nintendo is finally releasing things to play those old games. Now are they going to do it for the rest of them or are they just going to burn down the Library of Alexandria and only save a couple books.
Re: Re: Re:3 Re:
I can see what you’re saying, but I don’t think you’re right.
Would you use Firefox 1.0? Probably not, but there’s no reason you should have to. It’s still fully maintained, and many projects have forked from their original source code since that point if you find that you’d rather not have certain features that have been installed.
But, if you said, “hey, I’d like to fire up that old browser and see how much has actually changed”, then you can do so any time you want.
“Would I play emulated NES games. Yes.”
NES game? Sure. Now, how about a game that’s no longer available, but requires server elements or patches to work. Would you rather these games be open source, archived or simply lost in the memories of those who happened to play them in the short time they were available.
Don’t forget – Nintendo would rather you not be able to emulate any games that are not on their official emulators, and those only have pre-approved titles, may be discontinued with the console range you’re using and don’t move with you to another console range.
“Yes. I thought it was great that Nintendo is finally releasing things to play those old games”
PCs have always been around to do that, and Nintendo have only released a handful of the titles that were available on those old systems. Are you fine with not being able to access other games, or having to break the law in order to play games they will never officially release?
“Now are they going to do it for the rest of them or are they just going to burn down the Library of Alexandria and only save a couple books.”
Pretty much. As with most things, the currently popular items and the profitable items don’t need saving since that will naturally remain. It’s the other 99.9999% of human culture that needs preserving.
Re: Re: Re:3 Re:
Except the original comment thread wasn’t referring specifically to games, it was the entire software industry, and that’s what I was pointing out.
And yes, Firefox 1 is still useful as a record of history and where things came from and how far they have progressed. Think of how much we don’t know from history because someone didn’t deem it important to save at the time but now we would give anything to have them have preserved it or documented.
Regardless of that, I think you are wrong. Namely because there are lots of open source games out there as well. Not to mention all the AAA games that have come out over the years with mod support where anyone can mod it however they want. You could make the argument they are a form of open source if not explicitly so.
Re: Re: Re:2 Re:
I tried using Audacity once to patch the micro-gaps in a 90 minute audio file by copying and pasting some of the surrounding audio. It was too sluggish to use. After every paste, it would freeze for 5-10 seconds.
Cool Edit Pro on the other hand, pasted instantly and never got bogged down.
Audacity may be good for a free program, but it’s really not suitable for large jobs.
Re: Re: Re:3 Re:
Did you think to look for alternative free software programs like Ardour, as it is not like it going to cost you anything other than a bit of time to try them out. Ardour is targeted at professionals, while Audacity is targeted at occasional users.
Also, did you to see if it had any automation options so that you could tell it what to do and do something else while it did it.
Re: Re: Re:4 Re:
Ardour isn’t free.
Automation wouldn’t have been suitable for that task. On many of the edits, I had to try multiple cut and pastes to get the audio as seamless as possible. In a couple cases, where music was playing, I wasn’t able to perfectly patch the gaps. They were better than having the gap, but you could hear a glitch in the audio.
Re: Re: Re:3 Re:
At over 50 million downloads and commonly listed as a viable alternative to Adobe Audition and other professional audio editing software, I’ll let you argue that out with the professionals who likely do use it commercially for large jobs.
I’d also be willing to bet that was just your experience, not standard operation. I’ve used Audacity for similar copy paste operations and have not experienced the same issue.
That said, you managed to pick on one of my examples in a very specific use case, that doesn’t even invalidate it as being just as functional and usable as other closed source software. You even stated that it provided the same functionality as Cool Edit Pro.
Re: Re: Re:4 Re:
I experienced lag with pretty much any operation I tried to perform on large audio files. I wanted to sync an audio file to a video, so I either needed to stretch or shrink the length to match the video, without changing the pitch. Audacity took much longer to do this than CEP.
I never said that. I know that CEP has a useful feature where you can paste the contents of the buffer while overwriting the existing audio. Maybe Audacity has this feature, but if so I don’t know about it. My experience was that pastes inserted the buffer contents, changing the audio length unless you selected the exact portion you wanted to replace ahead of time.
Re: Re: Re:3 Re:
“Audacity may be good for a free program, but it’s really not suitable for large jobs.”
That’s quite a sweeping statement, to be honest based on one anecdotal experience vs millions of people who have been using it for over a decade. I appreciate that might have been your experience, but it’s just as likely that it was due to “I downloaded a buggy codec installed because FOSS can’t legally ship with it” than “nobody can use it effectively for large files”.
I’m not saying you’re wrong in your experience, but I know for a fact that several podcasts I listen to are edited using that software, and they are certainly not short shows.
I’d also question when you’re talking about using it. From what I can see, Cool Edit Pro changed its name shortly after being bought by Adobe in 2003. Are you really basing your verdict of a piece of software based on how it was 15 years ago?
Re: Re: Re:4 Re:
To be honest, I don’t remember what format the audio file was in, but I don’t remember downloading/installing anything other than what Audacity said it needed.
And even if the audio codec was buggy, how does that affect the operation of Audacity once the file is loaded? The codec is used during the reading of the file. Once it’s loaded into Audacity’s buffer, the codec should have no further effect on it.
Maybe there was some other cause, but pretty much everything I tried to do with Audacity on large audio files felt sluggish.
I think it was about 7 years ago. I’d tried Audacity a few times before that and always ended up kind of frustrated with it.
Re: Shoulders of Giants
A example of someone who didn’t get it might be Stravinsky, who was critical of Vivaldi’s works for not being romantic enough.
Re: Re:
Is it only software that you would compel to be public? How about Email, reading other people’s Email could be interesting. Diaries might be useful references. How about financial statements and tax returns, we could learn from all of those, too. Are you advocating opening everything up for the good of society? What would you compel people to reveal, and what would you allow people to keep private?
Re: Re: Re:
I believe there is a crucial difference between CONFIDENTIALITY and CONTROL over what has already become public knowledge.
Personal integrity means you are entitled to a private life. Any court of law will uphold your right to keep private information confidential under most circumstances.
Copyright insists you have control over information already in the possession of OTHER people.
It follows that personal information such as email, diaries, financial statements and so on are NOT on the same page as copyrighted media which concerns information which has been openly published.
I’m somehow not too surprised to see a pro-copyright adherent try to shift the analogy though, since false metaphors and outright lying is the only way to mount a defense for the concept of copyright by now.
Jim Sterling posted an excellent video on this situation; in it, he brings up two other types of games that might never see the light of day again if not for ROM archivists/preservationists and the emulation scene: licensed games and MMO/MMO-type games that were shut down.
Emulation saved practically the entire classic arcade scene from falling into the dustbin of history. Hell, Windjammers would not be the cult classic it is today if not for emulation. I get that the legally correct thing to do here is take down Emuparadise for distributing ROMs…but morally and ethically, I can only really support taking down ROMs for games that are still legally available through the first-party market. Take down the NES Mega Man games, sure, but leave Tombs & Treasures or Silver Surfer up; nobody will ever make a profit from those games nowadays.
Re: Re:
The problem is that to corporations, anything that is available for free is taking away an opportunity for a sale.
Re: Re: Re:
That really is the crux of it. Nintendo could be the exclusive legal supplier of classic Nintendo ROMs, or could easily license content to the distribution platforms, but they see it as a problem that you even want to play vintage games in the first place. They apparently believe you should only be interested in and permitted to choose from what Nintendo is offering you and has recently heavily invested in: current games on current platforms, nothing else.
The same goes for all other media companies, to some degree, but at least the music, movie, and book companies will generally reissue old content when there’s enough of a market for it. What they refuse to reissue inevitably gets pirated.
Nintendo also has a bad habit of going after gameplay videos. It is possible their legal team erroneously believes the “use and defend it or lose it” requirements of trademark law also applies to copyright. This may be a factor in their aggressive pursuit of ROM distributors.
Companies who think they know better than the marketplace, companies who think they know better than their own fans & customers, companies who outright resent and viciously attack fans of their own classic content… they normally would not survive very long. The fact that Nintendo manages to get away with it shows how much of a monopoly they enjoy and how big of a bully they are.
Re: Re: Re: Re:
Why is it so common on this forum that people so fervently protect the rights of media companies to act with impunity, censoring who they want for any reason they want, but will not allow other companies to operate as they see fit? Are you challenging Nintendo’s ownership of their own products? Are you challenging product ownership in general? If I think it is unusual to censor, can I demand Techdirt stop censoring? How can you defend some rights so vehemently and ignore other rights altogether? I’m not following your logic.
Re: Re: Re:2 Re:
Nobody here is saying Nintendo is operating outside their right as copyright holders. Have another read of… well, everything. That article and the comments.
People are lamenting Nintendo’s choice due to the collateral damage it is causing as well as questioning their logic in having chosen this path for all the same reasons. Nintendo is really only shooting themselves in their collective foot, something they’ve been pretty damned good at for a number of years now.
Yes, Nintendo is free to enforce their copyrights. But it was probably not the right choice.
Re: Re: Re:2 Re:
Nintendo is objectively doing the legally right thing. Whether it is morally or ethically right, on the other hand, is a subjective judgment call. And as far as I can tell, nobody is really all that eager to say Nintendo’s boots-to-throat approach is morally or ethically right…except Nintendo, anyway.
Re: Re: Re:3 Re:
Have you ever studied IBM’s product history? They regularly introduce and discontinue products to maximize their revenue. Every tech company makes market decisions every day. Maybe they just have something else to focus on and don’t want to compete with their own old products.
Who are you advocating on behalf of? “Boots-to-throat”? Strange metaphor for a company that sells video games that you like. Write your own game, isn’t that the same reasoning you use for this site? If you don’t like it, make your own. That sounds fair, no?
Re: Re: Re:4
Nintendo made the NES Classic and the SNES Classic, but go off about how it did not want its modern products to compete with its old ones.
I advocate for the archivists and preservationists who are keeping these older games from disappearing completely because of a lack of preservation by the original devs/pubs and the inequities of copyright law. Nintendo is legally in the right to sue ROM sites and shut them down with the full force of the law. Morally, however, Nintendo is doing something shitty by trying to make unavailable the vast, overwhelming majority of the libraries of its classic consoles, including games which it does not own the copyrights for and would be unlikely to secure said copyrights, just so it can sell a Raspberry Pi in a special plastic casing.
Writing a single game is fine. Writing 700 games would be daunting. Writing 700 games for a thirty-year-old system with exceptionally specific hardware limitations—and making just 50 of them good enough to be remembered fondly in another three decades—would be…well, not impossible, but it would sure as shit be highly improbable.
Re: Re: Re:5 Re:
So, because it would be difficult for you to do, you would like to impose your will on someone else, and remove their legal right to control their own products in favor of archivists and preservationists. Forced archival, so to speak, is that right? Should it apply to everything and everyone, or just video games? How about any porn movies you produced and starred in, should those be archived for posterity too? Family movies? Vacation shots? How about BIOS code? FPGA code? Dolby algorithms?
Re: Re: Re:6 Re:
“Should it apply to everything and everyone, or just video games?”
All culture should be preserved as much as possible – especially culture that has been abandoned by copyright owners as unprofitable. Especially in a culture where those in control place more value on that than the quality of the actual work. Sometimes, it’s the commercial losers that are more important, anyway.
Whether you force companies to archive themselves, or simply remove legal restrictions on others doing so is another question. But, archiving should absolutely happen.
“How about any porn movies you produced and starred in, should those be archived for posterity too?”
Define “porn”. Plus, yes, since a lot of historical footage (“stag” movies, etc.) do contain valid historical interest even if they were not considered of worth at the time. That’s half the point – archiving is to protect the things we don’t know will be valuable in the future, as those already known to be valuable will be preserved as a matter of course.
“How about BIOS code? FPGA code? Dolby algorithms?”
Yes. If the code is proprietary and currently maintained then it’s being archived by whoever is in control. If FOSS, it’s preserved with no issue. Code that’s proprietary but not active in any way? Yes, that should be preserved by 3rd parties if those who have the copyright don’t want to bother.
Re: Re: Re:6
Please do not otherword me. I try as much as possible to avoid doing it because it is another form of a strawman argument.
This is something of a strawman argument…but not by much. Like PaulT said, we archive stuff because we have no idea whether it will be important or valuable to future generations. No one could know for sure how many of those NES games would be lost to time if they had not been archived; since they were archived, we need not have to know.
If a game no longer has a publisher/developer to guard the copyright on it and no one can prove to a court’s satisfaction that they flat-out own the copyright, that game should be in the public domain. Whether that refers to an Atari 2600 game or, say, a Sega Saturn game is immaterial. No good reason exists to let these cultural artifacts—regardless of their subjective quality—disappear into the same black hole that has claimed so many films, books, and songs over the past few decades. Anyone who believes otherwise will need to present one hell of a convincing argument—and “we must protect copyright in all instances” is not that argument.
Re: Re: Re:6 Re:
<i>”So, because it would be difficult for you to do, you would like to impose your will on someone else, and remove their legal right to control their own products in favor of archivists and preservationists.”</i>
The “legal right” to control information possessed by someone else is not an affirmation of property rights – it’s a denial of them.
“Intellectual property” and copyright above all, is a degradation of actual property rights which has unaffiliated third parties determining what information you may or may not copy or preserve using your own materials on your own hardware.
<i>”How about any porn movies you produced and starred in, should those be archived for posterity too? Family movies? Vacation shots? How about BIOS code? FPGA code? Dolby algorithms?”</i>
Once information’s become publicly available actual control over what happens to it is, for all intents and purposes, gone.
And that’s a good thing.
Forced archival? Only in the mind of a raging pro-copyright fanatic would “people voluntarily keeping copies” be conflated with anyone being “forced”.
Re: Re: Re:7 Re:
…and of course, this:
–remove their legal right to control their own products in favor of archivists and preservationists.–
I think you’ll find that constitutional and first-tier legislation mentioning copyright (such as the 14th amendment or the UN human rights charter, as well as the EU charter) in EVERY instance has words to the effect that the only reason a “right” to control copies is implemented is as part of it’s role in furthering and progressing science and culture.
Basically if you decide to erase the old media you lose every backing of the principle rights copyright relies on.
Re: Re: Re:6 Re:
As has been stated many times, Copyright’s purpose is about enriching the public. The mechanism is the monopoly power. The argument is that the action being committed, taking down a ROM site, is contrary to the purpose of copyright, because the culture represented on that site is not being preserved by the Copyright Holder (evidence exists that some ROMs used by Nintendo in re-releases came from ‘pirate’ sites). So issues develop that the culture that was supposed to be provided to the public, for the enrichment of the public, may no longer exist when the monopolistic power exists.
Furthermore, there is a question of the value of many ROMs being taken down. If you subscribe to the assertion that copyright is only about the financial benefits, then the current state of copyright comes into question. If it is only about money, Nintendo clearly sees no financial benefit in most of their retro library, as evidenced by the lack luster, drip-fed Virtual Console releases, lack of a virtual console on the switch, and the frankly minuscule library on the NES and SNES classic. And lacking financial value, why enforce copyrights? This goes back to cost-benefit analysis.
Re: Re: Re:7 Re:
While there certainly are a lot of games that haven’t been preserved by their rightsholders, I am extremely skeptical of your implication that Nintendo didn’t have a copy of the ROM for Super Mario Bros., of all things, in its archives somewhere.
The presence of an iNES header in the Wii VC version of Super Mario Bros. doesn’t imply that Nintendo didn’t have a copy, just that it was much easier to get one from the Internet.
Re: Re: Re:8 Re:
I actually agree, but it must be noted that what you are saying is that Nintendo, who has repeatedly re-released SMB for multiple consoles, is actually doing a poorer job archiving a ROM they must have already used 3 or 4 times in the last decade than hobbyists who have no profit motive?
Kinda makes my point. If going through the hassle of bringing up that ROM from official storage for that release so quickly after the release of the big anniversary collection is just too much work, they aren’t effectively archiving it. A number of games were thought to have been archived, only to find out mistakes were made and images and source code lost (Kingdom Hearts).
They likely have some original cartridges (why I agree with you). But Given their actions, they might not have an ‘official’ copy on their servers. And given the apparent difficulty of accessing any copy they might have, it may not be properly stored at all.
Re: Re: Re:9 Re:
No, merely that their internal process for gaining access to said ROM is less convenient than just grabbing it off the Internet.
Or, more precisely, that it was in 2006.
Re: Re: Re:8 "it was much easier to get one from the Internet"
In other words, the Internet’s doing a better job of making accessible archive than Nintendo is of its own stuff.
Re: Re: Re:9 "it was much easier to get one from the Internet"
Well, obviously.
Re: Re: Re:6 Re:
Are you being intentionally this daft? Let me spell something out for you.
What Nintendo has done as collateral damage is cause video game history to be erased. You could argue that you could get them from other ROM sites who are bolder than Emuparadise is, but what made Emuparadise so loved is it wasn’t a minefield of viruses and malware like a lot ROM sites tend to be.
These ROMs and ISOs that have been ripped are by and large games from generations past that would have to be be played on modern consoles via emulator chips or programs to be played properly, or that the company no longer has them so reviving the games is impossible. Shit like corrupted master ROMs and ISOs can still happen.
The vast majority of these ripped games however are for systems that are no longer on the market, and are either impossibly hard to come by, prohibitively expensive to buy,or require being hooked up to a type of TV no longer available (SNES and NES, and the SEGA Genesis come to mind).
Emulation allows these games of the past without being restricted by any of that, allowing them to be analyzed from a gameplay perspective, among other things.
Using the argument about whether or not Nintendo should have control of the product or not is basically asking why we don’t let ourselves stay in Nintendo’s walled garden, and we don’t do that because some older games are just as good as the newer ones, if not better on some levels.
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Historical preservation isn’t about whether old games are better than modern ones.
I mentioned Socks the Cat Rocks the Hill downthread. Well, what’s appealing about the game sure as hell isn’t that it’s a great game. It’s exactly what it looks like: a middling 16-bit mascot platformer (albeit with some lovely sprite work and some genuine laughs).
Socks the Cat isn’t important because it’s a great game. It’s important because it was a lost game for so long.
There are other examples of games that are historically significant but not good. ET and the Atari 2600 version of Pac-Man are historically significant because they’re infamously bad.
Even among games that aren’t historically important, they’re all worth saving. They all provide historical context. The good, the bad, the mediocre. The games that are in the most danger of being forgotten are, after all, the ones that are the most forgettable.
All that said: there are a lot of obscure, older games that aren’t commercially available and are fun to play. That’s great, and I don’t have any problem with people playing games because they enjoy them. But that’s not the purpose of preservation. Preservation is an end in itself.
Re: Re: Re:8
The same could be said of movies, too.
Re: Re: Re:9 Whether or not old is better than new...
The histories of both literature and cinema have shown us that films go through eras of rising and lowering quality. The 60s and 70s were a period in which Classical Hollywood production was failing and independent artists were rising. This made for the Film-School era of the 80s which gave us Star Wars, and the film-as-franchise movement that produces the cinema-as-product schlock that we see coming out of the big studios today.
Heck the rise of the SNES was boosted by the failings that made for the great video game crash of 1983, and we’re seeing the same classical / indie trend now as AAA games cling more and more tightly to best practices as their production value budgets soar, and their games become blander and blander.
Meanwhile indie dev teams are making games with lower production values but more play value (the Bullwinkle and Rocky formula) so you have games that are pretty enough to sell and keep playing, but have deep levels of content.
Media history, like other history, rhymes. So yeah, it’s good to preserve everything, to be analyzed and see where the patterns match the old.
Of course, the big companies like Nintendo don’t want their end users to learn from history, but to think that their new product is more golden and less shlocky than everything before it.
So they’re motivated to bury the past.
Re: Re: Re:10 Whether or not old is better than new...
I don’t think that’s an accurate read.
Nintendo’s still got a reputation for making excellent games. It has a negative reputation in some areas — online functionality, hardware performance, third-party publisher participation — but it’s still widely viewed as a company that makes very good games.
Breath of the Wild isn’t considered a great game because everybody’s forgotten about The Legend of Zelda and A Link to the Past — my God, how many platforms has Nintendo rereleased those games for? Breath of the Wild is considered a great game on its own merits.
Similar story on the Mario franchise and, starting with the Wii, it’s also been easy to get past entries from the Mario Kart series on current Nintendo consoles and handhelds. (That the Switch doesn’t have them available yet speaks to a failure on Nintendo’s part to get its digital distribution platform together, not to an intent to bury those games.)
Nintendo doesn’t want people to forget about old Mario and Zelda games. It wants people to buy them again every 3-5 years, over and over again.
And the games it doesn’t try to sell, the ones caught in the crossfire when emulation sites go down? Nintendo doesn’t care about those games. The company’s motivation is to make money, not to preserve history.
Re: Re: Re:9 Re:
Indeed.
Here’s what I had to say about the Manos restoration project in 2012 (note, for context, that I wrote that post before it became evident that Rupert Talbot Munch was a nut and likely con man).
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Yes. That’s what you wanted, wasn’t it Hamilton? For all your the “censored” dreams and fanfiction you wrote here to be submitted to the judge so he would raise a rallying cry for Shiva?
You took a dump in your bed. Now you have to lie in it. Sucks to be you!
Re: Re: Re:3 By the same objectivity...
…we could argue that by the same position of power, the Taliban was in the right to dynamite the Buddhas of Bamiyan no matter the reasons they had for doing it, and no matter the reasons others might have objected to it.
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Censorship is undesirable regardless of who is doing it. Just ask Alex Jones. (Whether he is actually being censored or not, he certainly agrees it is undesirable.)
The company is within its rights. Does that mean we should not discuss, or deplore, what is doing within its rights as a public policy issue?
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Moderating*
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In fact, even the "protect your trademark or lose your trademark" excuse is just bogus. The trademark law refers specifically and quite literally to illicit COMMERCIAL use of one’s trademark. You only risk losing ownership rights over your trademark if you fail to legally dennounce and claim damages over any other parties’ attempts to COMMERCIALLY exploit it, which, allegedly, might be technically argued if the disputed content is making a profit somehow -like, for example, monetized YouTube videos, or ad-ridden websites that allow you to play roms- but allowing any source of access/distribution of discontinued material that is clearly altruistic and upfront about Its operative policies and end goal isn’t going to make a trademark owner lose control over his brand under any sane judge’s scrutiny in any courtroom under US rule -and even if they did, an appeal should fix that quite swiftly-.
There’s a reason why CBS/Paramount never went against any derivative works made by Trek fans before the whole Axanar debacle, and I, for once, feel like siding up with the trademark owners here… they had a long history of being lenient and quite gracious with the fandom before, but a huge quickstarter asking for hundreds of thousands of dollars to shoot a Trek "fan" film where there were quite a few names involved that were experienced, even if small-game-ish, Hollywood players? That was ludicrous by any sane standards.
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There’s so many games that I grew up with that you can’t find or get to work anymore. Windows 95 games, or games that came with 8 discs, or games that were so rare when they came out that you have to spend over $2k on if you wanted to play them. Legally.
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See also: games that cannot be re-released in their original forms because the source code is lost and the developer is out of business.
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Those are a couple of excellent examples. I’d also add games where the publisher is defunct and it’s unclear who owns the rights.
Neither would Earthbound.
Nintendo has that special place in my “don’t buy” list for a while now because of these copyright fuckeries. Seems it won’t be leaving anytime soon.
I’m fairly sure these roms will live through the pirates in magnets and other less known places and will make a comeback as soon as Nintendo loses interest again. Nintendo should have lost copyrights the moment the consoles and titles were not commercially available anymore. As always, pirates saving culture from a completely broken copyright system.
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Any company that has an IP will do this exact same thing. Not out of greed necessarily, out of legal requirement. The IP law is extremely broken, if Nintendo is aware of someone using their IP unlawfully they have to defend it. If they don’t it’s the same as giving up on it. I.e.: I make a small stupid game using Mario, it becomes popular, Nintendo ignores it because they don’t care about a small free game. Six months later EA releases a game with Mario claiming it’s in the public domain and if they can prove Nintendo was aware of my game and did nothing, they have a case.
Copyright laws work on a “use it or lose it” basis. If you don’t enforce all infringements, you lose the right to enforce any. They key to keeping these places alive is keeping them small.
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That’s maybe halfway/barely true in the case of trademark.
It is not at all true in the case of copyright.
There are multiple types of things which fall under the umbrella of “intellectual property”, and they are not all subject to the same rules.
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I mentioned it before, will do it again: that legal requirement to act in order to retain ownership of IP’s only applies to cases where someone is making or intends to do money off the brand. If there’s no profit planned and obtained from the brand’s unauthorized use that means no commercial activity was involved, so that means no argument for a judge to rule that the IP owner doesn’t care about it and its commercial viability, which is the logic sustaining the US trademark protection laws, specially if the IP owner is not sitting idle on its properties – which Big N is obviously not doing.
Nintendo is not on nearly as solid a legal ground as is being pretended here.
Most of the sites I’ve looked at have clear language saying you are only allowed to download ROM’s for games you actually own, which puts the usage of the site well within the realm of fair use.
But of course Nintendo doesn’t have to care about fair use when issuing legal threats thanks to the courts refusing to punish anyone for doing that without having at least considered fair use first.
Bring on the digital apocalypse.
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I doubt any court in the US would look at that warning and agree that it makes downloading any ROM for a game you own a legal. Besides, everyone treats those warnings like most people treat the simple “Are you 18?” warning on porn sites: as a minor inconvenience.
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I think they would have had a really strong chance in the past, but not with the toxic copyright environment today for sure.
In Canada, backups and format shifting are specifically protected.. but only if you don’t need to break any TPMS.. basically it translates to: none of the lawmakers wanted to give up format shifting and backups for their stuff but they were fine if none of the kids could do it.
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Same in the US. It’s legal to make a backup, but it’s not legal to circumvent an anti-copying measure.
But what we’re looking at here isn’t making a copy; it’s making a copy legal for download to any rando on the Internet. That’s (generally) not legal.
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We never made a law about this in Canada.. As far as I can tell the courts kinda cheated and pretend that making something available for download is a performance so they wouldn’t have to make a new law to cover it.
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Which of the four factors of fair use do you believe this satisfies?
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Actually, that legal theory has never been tested. The ‘archival copy’ standard comes as an extension of settled law, it isn’t settled law itself. The idea that a site can distribute the copywritten material as ‘archive copies’, with the pinkie promise that the downloader owns the original is most certainly on shaky legal ground.
These sites only functioned because there was no money in shutting them down. But with Nintendo monetizing its back catalog, that is no longer the case.
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I would note the recent case of Eric Lundgren, who was convicted for distributing windows restoration media, which is not only freely available on Microsoft’s website but is only operable if you already own a windows license.
Considering this precedent, downloading a ROM for a game you own might be legal, but it is almost certainly illegal to distribute ROMs to other people who own the games (and that assumes that you have perfect knowledge of who owns the game, which is blatantly untrue). So the sites have basically no ground to stand on.
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That is an excellent observation, and proves my point. Thank you.
new marketing scheme
I would like to see a system in which these new tiny units that come with a limited number of titles, can have new titles downloaded to them. Use a system similar to iTunes. Each title costs $0.99 or $1.99 and is downloaded to the unit and stored in flash memory. Also, have bundle sales.
The Konami Kollection. Life Force, Contra series, Castlevania series, and more for a discounted price. The roms take up so little space that you could easily store the entire library of Nintendo games in one unit
Re: new marketing scheme
Sega and SNK have both started selling old games as straight, unencrypted ROMs packaged with emulators. If you don’t like the emulator they provide, you can easily run those (legally-purchased) ROMs in another emulator, or copy them to a flash cart to play them on authentic hardware if you’ve got it.
I think that’s a great system, that respects customers’ rights instead of treating them like criminals. I also don’t see Nintendo ever going for it.
Re: Re: new marketing scheme
Consumers have a demand. The owner refuses. The consumers seek other sources (ROM sites) And thus the owner is creating that which they seek to destroy.
Re: Re: Re: new marketing scheme
That’s a bit of an oversimplification.
Nintendo could, if it wanted to, sell all the games it owns the copyrights to as ROMs, playable on a device of the customer’s choosing. It doesn’t. That much is true.
But Nintendo can’t actually make every game released for its consoles available for sale, because it doesn’t own all of them. For third-party titles, it would need to reach an agreement with the rightsholder. For licensed titles, it would need to reach an agreement with the licensor. And that’s before we even get into the complexities of fan modifications — think unofficial translations, ROM hacks, etc.
Nintendo could do more than it’s doing to appease fan demand for ROMs; that much is certainly true. But the full range of options that ROM sites provide simply can’t be provided legally. That’s not Nintendo’s fault (though Nintendo isn’t helping); it’s a flaw in copyright law.
Add to that, Nintendo has made an effort to make a good big portion of its back catalog available, especially its most popular titles. Those efforts have often had issues — $20 per game for NES ports on the GBA, inferior emulation on the Wii U VC, scarcity of the NES Classic during its original manufacturing run, and even the original Wii, which represented Nintendo’s best foray into emulating old games, still had some noticeable holes in its selection (coughcoughEarthbound) — but it’s not as if Nintendo has completely ignored demand, either.
I’m not defending Nintendo’s behavior here, and I think the company’s going about this all wrong and has been for 20 years. But I still think it’s a little more complicated than simply "Nintendo isn’t meeting demand."
Re: Re: Re:2
And as proven with the NES Classic and Super NES Classic, getting that third-party approval is not that hard. Nearly half of the games on the NES-C and a third of the games on the SNES-C are third-party games.
As pointed out by Jim Sterling, it would likely need to reach an agreement with the IP licensor and the game’s publisher—and, if necessary, the current licensee of the IP. (Sterling’s example of Alien vs. Predator would require the Alien and Predator licenses, so the studio that owns them both would need to approve, as would Capcom, and the deal might still require Sega, which currently owns the rights to make Alien games, to sign off.)
And yet they still will not release MOTHER 3, so the excellent fan translation is still the only way to play it outside of Japan (and knowing Japanese).
The biggest one being price. I refuse to pay more than two dollars for games from NES, SNES, Game Boy, and Game Boy Advance, no matter how good they are. I could be convinced to pay more for N64 and Gamecube games, but not by much.
For third-party games that have nigh-impossible licensing demands/copyright ownership issues? Absolutely. But virtually nothing is stopping Nintendo from both selling the games it owns the rights to distribute and getting licenses for popular third-party games like Chrono Trigger or the pre-PSOne and GBA-exclusive parts of the Castlevania franchise. Nintendo did not adequately meet demand for the best games of its first three home console generations and Game Boy-branded portable consoles; the company has no more excuses now that it knows the demand exists for those games. It does not need to distribute every game that it possibly can—I doubt anyone is aching for Renegade (NES) or Mario is Missing (SNES)—but at the very least, consumers deserve more than the currently-available 50 games or so out of the 700 or so games released for the NES. Hell, if Nintendo really wanted to make some dosh, it would help release classic games that never got out of Japan (coughsweethomecough). I would buy games like that in a heartbeat…provided they were any good, of course.
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…I…think you may be overestimating the market demand for Sweet Home.
Which is kind of my point: there are a lot of games where there’s probably no good market justification for their legal release. (And I say that as someone who recently paid $60 for a copy of Socks the Cat Rocks the Hill with box and manual.) And in those cases, the emulation community does a valuable service.
In some cases, the emulation community even creates that demand; Earthbound’s original North American release was greeted with middling reviews and poor sales, and Nintendo didn’t even release it on Wii VC. If it hadn’t been for illegal distribution of the ROM, the game wouldn’t have gotten the cult following it now has, and I doubt we’d have ever seen it on the Wii U or 3DS VC, or on the SNES Classic.
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Eh, they could market it as “the game that inspired Resident Evil” to lure in at least a few people.
I agree wholeheartedly.
The same thing happened with Windjammers: It was ignored in its time of release, but emulation and word of mouth over the years led to it becoming a cult classic that is now available on modern consoles (with a Switch version coming soon) and had a special side-stream tournament at EVO just a week ago.
Nintendo exploited emulation—possibly even literally—until it was no longer necessary. That Nintendo would risk the efforts of archivists and preservationists to keep those games around and available just so the company could make a quick buck is truly disgusting.
Re: Re: Re:5 Re:
Frankly, a lot of copyright holders do this. Hasbro and D&D 4e power cards is a great example. Hasbro had feedback from playtesters that they would actually make little cards with the details of each power on them. The fans built a massive framework to quickly create such cards in a universal format, and distribute card collections easily.
These options were threatened and slowly shut down when Hasbro finally got their commercial product to market over a year later. Several kept working but never were able to reach fans. Hasbro let fans develop the market, and then injected themselves into the primed market and used questionable copyright claims (the rule-based nature with only incidental creative naming of the cards creates questions in copyright law) to shut down the competition.
Nintendo has definitely lost any possible future sales from me. I will never buy anything from then, ever.
There are many old games that are abandoned, the companys that made them no longer exist,
or games cannot be re released as they contain characters or music tracks that are owned by other companys and were only licensed for a limited time.
Nintendo could set up a service online,
you can download any game from the nes or snes
if you pay a few dollars a month.
The trend is for longer terms of copyright ,companys like disney don,t want any ip to go into the public domain.
Nintendo does not believe in fair use,
it issues dcma,s notices on youtube videos that contain
parts of trailers for games .
Even if the trailer is just a small part of the video.
Most of the games released on the nes were mediocre ,
people just remember the good games they played
when they were children.
Even if the trailer is only a small part of the video.
I don,t think any nes game is worth more than 10 dollars.Most nes games are less than 1 megabyte in size.
Jason Scott has said that the Archive does get takedown notices (i.e. threats of destructive lawsuits), and that Nintendo’s lawyer is one of the less pleasant ones to deal with. This is why, for example, you can’t view Nintendo Power on archive.org—they had them up for a day or two, then Nintendo put a stop to it. You may also notice some games, particularly first-party games, are missing. They have them all, but have had to block public access to some.
Nintendo trying to stay relevant for bad reasons.
The dumbocrats had PLENTY of time and power to reverse this dumb stuff but instead all they care about is electric cars and living in a dream world or in their minds we will all die in X amount of years.
They recently just said we will all die in 10 years so they are pushing that again.
This is the end result where it goes.https://www.amazon.com/Myth-Capitalism-Monopolies-Death-Competition/dp/1119548195/ref=sr_1_9?ie=UTF8&qid=1543332882&sr=8-9&keywords=capitalism
The liberals also have done this for a long time and are now just getting called out but is Trump really any better? https://www.amazon.com/Crapitalism-Liberals-Millions-Swiping-Dollars/dp/1476750424
The problem with electric cars is the insane amounts of coal needed to burn in order for everyone to plug them in. These cars require a LOT more electricity we don’t have under normal conditions. Also there is a legit shortage of the materials that make the batteries.
There is attempts using “Geo Engineering” schemes since the end of the Bush era to try and melt the North Pole because there is lots of resources trapped under there plus a north shipping lane would be installed for Russia but all it does is heat up our planet in some areas and make other areas frigid.
They use fly by coal ash for example to spray our skies with heavy metals.