Piracy, Preservation, Polarity: Over-Regulation of ROMs Could Damage Video Games in the End

by Jillian Caulfield, posted July 24, 2019

The future of online video game piracy is beginning to look pretty bleak. In August, EmuParadise, one of the most popular places to get ROMs (digital copies of video games often shared illegally), shuttered its ROM distribution operations in response to increasing legal pressure after 18 years of operation, and just a few months later, "Nintendo and the operators of two ROM sites it sued [that] summer [LoveROMs.com and LoveRETRO.co] ... reached a proposed settlement" requiring the defendants to pay out more than $12 million and turn over all their Nintendo games. It seems likely given the severity of the LoveROMs case that other hosts both large and small will disappear as well in the next few years.

On the surface, this may sound like a positive or at least reasonable development, but if you care about video games, these changes and what they could mean in the long run should concern you. Nintendo's actions against ROM hosts, while certainly well within their legal rights, are ultimately damaging to gaming as a whole because these sites and their users are doing very important work in game preservation.

Just like any art form, games can and do touch people deeply, shaping who they are and bettering their lives. They offer fun and entertainment, inspire creativity and connect family members, friends and vast, wonderful worlds. Sometimes, they fill a more serious role, acting as an escape or support system for people in bad situations. In his heartfelt article about how Legend of Zelda: Breath of the Wild helped him avoid suicide, Derek Buck writes:

"When you're depressed, the world around you tightens and constricts until it feels like you're locked in a closet with a burned-out light. Even though you know what things are around you, you can't see those things the way you used to. You can't see anything the way you used to, and the the world becomes a dark, suffocatingly small place.
But Hyrule [Breath of the Wild 's setting] is the opposite. In Hyrule, the light is so bright, it seems to come from everywhere, shooting like beams from each blade of grass. In Hyrule, I was always on the verge of something new, a promise of discovery that freed my spirit from the two-ton anchor of my own thoughts. In Hyrule, if only for a few hours, I could breathe ... It provided me with a sanctuary from myself, allowing me to to interrupt the pain and anxiety with comfort and peace; the hopelessness and defeat with courage and optimism.

In a similar vein, a comic by DeviantArt user cocoaowls depicts a child escaping their rough home life through Animal Crossing for the GameCube. In the description, the artist comments, "I've always wanted to make comics about how video games affected me as a kid ... [Animal Crossing] gave me a hell of a good time and got me through some lows." And in the post announcing EmuParadise's closure, founder MasJ says, "We've had emails from soldiers at war saying that the only way they got through their days was to be lost in the [retro games] that they played from when they were children. We've got emails from brothers who have lost their siblings to cancer and were able to find solace in playing the games they once did as children."

These aren't a cherry-picked few, either -- a little digging will turn up mountains of testimonies describing experiences that vary in exact detail but are, at their core, the same. The deep, positive ways that video games touch peoples' lives make games worth preserving. And even if you turn your nose up at the concept of games as sometimes profound art, it's important to preserve these works on the basis of their historical meaning for our culture alone. As with almost anything we create, games reflect the beliefs and circumstances of the times, places and people involved in their creation. They can tell us a lot about the world they were developed in and released into, acting as pixelated and polygonal artifacts of our lives and contexts.

Regardless of the reason for preservation that you find most compelling, we need game piracy to ensure that it happens. Piracy keeps games (and other media) around and accessible when it may otherwise be out of reach or lost forever -- which many titles already are, or will be soon.

Why? The fact of the matter is, physical games and their hardware are not infallible. Most if not all players can tell you from experience that cartridges, discs, cords, consoles, controllers, memory cards, drives and TV hardware do not last forever, degrading or becoming completely unusable over time regardless of how well-kept they are. It's a bummer when this happens, but it's also worrying. What happens when the games you love become unplayable on a broad scale, when there are no more (also inevitably failing, increasingly expensive and difficult to obtain) replacements to be found? That's not even thinking about compatibility issues with modern computers and screens. The thought is hard to shake -- and I don't think it's one we can afford to shake.

Digital games aren't safe either. Consider how many digital-only games end up "delisted," erased from digital storefronts forever with no physical counterpart to buy second-hand, leaving players that didn't buy them on their current console when they were listed with no legitimate options should they wish to play them. Delisted Games, a website that chronicles digital games and related software that have become unavailable, currently lists over 250 titles as "extinct," including the beloved Scott Pilgrim vs. The World: The Game. Another delisted game of note is P.T., an impressive demo for a new Silent Hill game called Silent Hills that remains a big name in the horror world, often talked about wistfully even years later. It was pulled from the PlayStation store in 2015 shortly after Silent Hills's cancellation, and has since become extremely difficult to obtain despite its importance. Before eBay started removing listings that advertised still possessing the demo as a selling point, some users were buying PlayStation 4s just on the basis that P.T. was still installed on them (and, again, the inevitable fallibility of the physical console plays a worrying role here). Fans continue to "remake" the game in order to try and preserve it in an interesting new mutation of piracy I can't help but hope eventually succeeds.

The unfortunate reality of technological imperfections and digital storefront pitfalls would be less worrying if older games were made legitimately available again in practical ways, but that's just not happening. It's true that some games get rereleases, ports, etc. and become newly playable on modern hardware -- and I firmly believe that when this is an option, players should take it rather than pirating -- but there are some games that will never get this honor. Some are in whatChris Kohler refers to as "copyright limbo,"where, for some reason or another, there is a rights issue preventing the game from being released again. "Perhaps the publisher shut down, leaving the question of who owns the copyright up in the air. Perhaps the game uses licensed characters or music, meaning that it could not be published again without multiple rights holders working out a new contract." Games in copyright limbo are likely to never be released again because it would be more trouble than they're worth, if not impossible. (Piracy has saved films in similar positions -- famously, every copy of Nosferatu was supposed to be destroyed because it was an unauthorized retelling of Bram Stoker's Dracula, but is still alive (undead?) almost a century later thanks to "duping.") And there are some games where the source files are partially or even completely lost. Some of these instances are documented -- during the development of Silent Hill: HD Collection, a remastered release of the first three Silent Hill games, the team only had partial code to work with for the second and third games. Something similar happened with the first Kingdom Hearts game,and CEO Matsuda admitted during E3 this year that though Square Enix is working to make their full catalog of games available, it's proving difficult because most of its NES era code is missing. But there are even more rumored victims on forums across the web (Bubble Bobble, House of the Dead, Panzer Dragoon Saga, and even the original Sonic the Hedgehog for Genesis), though such claims should be taken with a grain of salt. True or not, these rumors bring up an interesting point: it's unfortunately likely that game companies have lost or will lose source files for at least one of their games at some point, whether due to computer failure, theft, moving or even just digital spring cleaning, if they even exist to hang onto this code at all. By and large, these games are unlikely to be released again as a result.

Even if a company does have the rights and files for a game, it will probably never be made available again if it doesn't seem like it'll turn a profit. This is the driving force behind releases. Companies are businesses, not friends, and their primary goal is to make money. This is especially unfortunate for obscure or critically unsuccessful works because they have a much smaller chance of making money, even though they should be preserved too. But even for games that seem like a shoe-in, publishers seem to underestimate how much they could make if only they offered legitimate, practical ways to buy and play these games again. A peek into the comments section of articles covering the legal fight against online game piracy highlights this. One user says, "I never pirate something if I can get it legally without going on [eBay] for hundreds of dollars," [1] further elaborating that:

I want Nintendo to make it possible for me to buy quite a large number of games I really, really love, and play them in a reasonable way (ever hook a pre-HDMI console up to a modern HDTV? [Even] if the hardware still works, without basic upscaling the picture is un-fucking-tenable), I've wanted that for a long time now, and I think it's stupid, annoying and dickish that they clearly have no intention of doing that but are spending millions of dollars on lawsuits to try and shut down what is currently the only way for most people to play those games period, regardless of how willing those people are to give Nintendo money. [2]

A comment by another user shares a similar sentiment:

If I could pay to have these games on my modern hardware, then I would ... I don't want this stuff for free. I know upgrading this stuff takes time, energy, and manpower, so I am fully willing to pay reasonable prices. Our only current recourse is jury rigging the old hardware to modern TVs, or hunting down old CRT televisions to hook the old hardware up to ... I generally don't [pirate] as I have gone with the jury rigging option myself, but it would be nice if I didn't have to have the fire hazard mess of wires sticking out the back of my TV. [3]

In the end, we have to accept there are many games that just aren't going to be rereleased legitimately, leaving their existing copies to rot away with no guaranteed safety net to keep them from being lost forever.

Let's talk about the Legend of Zelda franchise.

Even within this single well-known, well-loved franchise, you can find numerous examples of content at risk of disappearing that could benefit from piracy. Perhaps the most intriguing are the spinoff BS The Legend of Zelda titles. These unique "broadcast satellite games" were only playable during live broadcasts using an obscure Super Famicom peripheral called the Satellaview, [4] doomed to the sands of time when the broadcasts came to an end in 2000. [5] Thankfully, fans have somehow scrounged up the files for these unusual games, translated them and made them available online with instructions on how to play them in emulators in an act of blatant but heroic copyright infringement. Four Swords Anniversary Edition, an updated version of Four Swords with new levels, a new single player mode, [4] anda multiplayer mode that works wirelessly rather than relying on the GameBoy Advance link cable like the original,could also benefit from being pirated. It was only available between September 2011 and February 2012, [4] and then January 30th and February 2nd in 2014. To legitimately play the original Four Swords instead, you'll need to scrounge up at least two GameBoy Advances, a GameBoy Advance link cable and a Link to the Past and Four Swords cartridge. Good luck! And we can't forget Collector's Edition, a now-rare disc distributed by Club Nintendo in 2004 loaded with four full classic Zelda games (the original Zelda, Adventure of Link, Ocarina of Time and Majora's Mask), a special demo for the then-upcoming Wind Waker, and two special video reels. [5] [6] And what of Ocarina of Time Master Quest, a special, more difficult limited edition version of Ocarina of Time available only as a preorder bonus for Wind Waker? [5] What might happen to those rare games and materials if they're not preserved with piracy?

I have to admit with relief that it's going to be near impossible to stamp out online piracy completely due to the vastness of the internet, so perhaps our future isn't as gloomy as I'm painting it. But a blow is a blow, and legal actions against ROM sites means it's going to get harder to continue these efforts. When a collection is easy to find, games reach places they never could before, and people from all over the world with a variety of resources can contribute, making it easier to compile collections and boosting the chances that rare, at-risk titles will make it into them. This is preservation at its best -- accessible to almost everyone, improved with incredible ease. That's what these actions are threatening. If these sites have to slip under the radar to stay afloat, they are inherently less effective because their collections are under the radar, too.

Online piracy fills a real need that developers won't or can't, in a world of broken copyright law that asks us to rely on sometimes uncertain, sometimes uncaring copyright holders to save critical works of art. I'm not advocating for blatantly unreasonable piracy of games that are still easily legitimately available in ways that compensate their creators, and I implore you to obtain your games this way whenever possible. But many games can and will disappear without piracy, and to pretend otherwise is disingenuous. It's Nintendo's legal right to challenge piracy of their games, but, as so eloquently put in an earlier quote, "that doesn't make [these actions] less stupid, annoying and dickish," [2] nor does it mitigate the damage they could do to gaming in the long run. They stand firmly in the way of preserving video games and their history. We don't have answers for this complex problem yet, but it's one that we need to be aware of. Its consequences could be disastrous.

Note: Citations listed here are only for non-linkable sources, but a full list of citations including the linkable sources is available to the public on my Patreon for posterity. Behind-the-scenes content for this article is available on my Patreon as well for patrons.

This article's title originally featured the phrase "seriously damage," not just "damage" -- this change was made after a Wix update limited title length.

Citations (MLA)