Retro game preservation in limbo after Nintendo files lawsuit

In a lawsuit filed in late July by Nintendo of America against two ROM distributing websites, the company states that the sites are “built almost entirely on the brazen and mass-scale infringement of Nintendo’s intellectual property rights.”

Those who run the sites though, have a different story.

By law, Nintendo is well within their rights to defend their property when someone else is distributing it without permission. What the lawsuit doesn’t touch on, however, according to those who run these sites, is the value that they have when it comes to the preservation of older video games.

A ROM is essentially a copy of the video game software that can run on a computer with the help of an emulation program. Emulators are legal as they don’t actually offer the games themselves, just a way to play them. People can also “dump” their games in order to play them on the emulator, as long as they own a physical copy. Distributing those dumped ROMs is the illegal part.

The lawsuit, which asks for $150,000 for each game ROM that was hosted on the site and $2 million for infringing on the trademark, has caused other sites to disable access to their ROM library.

One such site is EmuParadise. Founded in 2000, the site’s goal, according to the founder, has been the preservation of old games to give people the opportunity to enjoy the favourites of their youths. The site’s founder, who goes by the username MasJ, says the consequences now far outweigh the benefits when it comes to hosting ROMs.

“It’s not worth it for us to risk potentially disastrous consequences,” said MasJ in a post on the EmuParadise website. “I cannot in good conscience risk the futures of our team members who have contributed to the site through the years.”

Video game preservation has always been a tough beast. In the early 1980s there were more video games than people playing them, causing a crash in the market. A large portion of the games released at that time were lost as companies folded and their archives were deleted. Now, when a copy of an old game is found, people upload the game data to sites like EmuParadise in order to preserve the games on them.

“We’ve received thousands of emails from people telling us how happy they’ve been to rediscover and even share their childhood with the next generations in their families,” said MasJ. “We’ve had emails from soldiers at war saying that the only way they got through their days was to be lost in the retrogames 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. There are countless stories like these.”

This has been an issue in the past with music and movies, as well. Previously it was a lot cheaper and easier to just download your favourite album or film and consume it free of charge. Now, with the invention of Spotify and Netflix, it’s a lot easier and legal to watch movies and listen to whatever you want. It’s not free, but you won’t get sued for it.

Video game companies have begun to copy that formula, though it’s a slow process. Playstation has begun to make older games available through their Playstation Now streaming service, and Nintendo will soon be implementing their Nintendo Switch Online, which will open up a library of retro games to stream to the Switch console.

For those who do enjoy playing retro games, all is not lost. Though not as robust when it comes to choice of games, there are several options to legally purchase and play them, such as Nintendo’s recently-released NES classic and SNES classic consoles and other retro consoles which feature old games from Sega and Atari.

These consoles can cost upwards of $100, though, so there is a bit of a cost commitment, but they are legal.