“You wouldn't download a car!”
August 9, 2018 4:38 PM   Subscribe

What Does Nintendo's Shutdown Of ROM-Sharing Sites Mean For Video Game Preservation? [Nintendo Life] “The recent news that Nintendo is taking legal action against two sites which illegally distributed ROMs has been met with an overwhelmingly positive response, and rightly so. The individuals sharing these files online care little for the intellectual property rights of the developers who slave away to make the games we get hours of enjoyment out of, and instead leverage the growing interest in retro gaming purely to plaster their sites with garish advertisements for mail-order girlfriends and other dubious businesses. Nintendo – a company traditionally very protective of its IP – has struck a blow which will hopefully have long-term ramifications for the entire industry.”

• Nintendo Suing Pirate Websites For Millions [Kotaku]
“On July 19, Nintendo filed suit in an Arizona Federal Court against the operator of two popular retro gaming sites, which had been hosting ROMS of some of the company’s most famous games. The suit alleges that the two sites, LoveROMS.com and LoveRETRO.co—both owned and operated by Jacob Mathias—are “built almost entirely on the brazen and mass-scale infringement of Nintendo’s intellectual property rights.” “In addition to Nintendo’s video games”, the suit says, “Defendants reproduce, distribute, and publicly perform a vast library of Nintendo’s other copyrighted works on and through the LoveROMs and LoveRETRO websites, including the proprietary BIOS software for several of Nintendo’s video game systems and thousands of Nintendo’s copyrighted musical works and audio recordings.””
• Lawsuit threat shuts down ROM downloads on major emulation site [Ars Technica]
“In the wake of Nintendo's recent lawsuits against other ROM distribution sites, major ROM repository EmuParadise has announced it will preemptively cease providing downloadable versions of copyrighted classic games. While EmuParadise doesn't seem to have been hit with any lawsuits yet, site founder MasJ writes in an announcement post that "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." EmuParadise will continue to operate as a repository for legal downloads of classic console emulators, as well as a database of information on thousands of classic games. "But you won't be able to get your games from here for now," as MasJ writes.”
• Emulation isn't a dirty word, and one man thinks it can save gaming's history [Polygon]
“"According to the Film Foundation, over half the films made before 1950 are gone," Cifaldi said. "I don’t mean that you can’t buy these on DVD. I mean they’re gone. They don’t exist anymore." For films produced before 1920, Cifaldi said, that number jumps to 80 percent. "That terrified me. I wasn’t particularly a film buff, but the idea of these works just disappearing forever and never being recoverable scared the crap out of me. So I started wondering is anyone doing this for games. Is anyone making sure that video games aren’t doing the same stupid shit that film did to make their heritage disappear? "And yeah, there were people doing this. We didn’t call them archivists. We didn’t call them digital archeologists or anything. We called them software pirates." It's emulation's long association with piracy, Cifaldi said, that has given it a bad name. Nintendo in particular seems to have a particular aversion towards it, he noted, pointing to their official statement on the issue which has been available at their corporate website for the last 16 years.”
• Nintendo vs. Emulation: The difficulty of archiving games [Nintendo Enthusiast]
“Creating and using ROMs/ISOs and emulators is not inherently illegal. The thing is, there’s a very thin gray area between the border of legal and illegal in this case. For someone to play classic games completely legally without it being on the original hardware with the original software, they would need to be using an emulator that’s running on custom code and doesn’t use BIOS files obtained from an external source. As for the games, they would need to be backups created by the user, who would have to create them by dumping the data from their own original copies of said games. Thus, emulation becomes illegal as soon as file-sharing is involved, and the vast majority of folks using emulators is doing so thanks to file-sharing. This is why Nintendo has constantly been trying to take down emulation hubs as it considers them to be centers for piracy promotion.”
• Yes, Downloading Nintendo ROMs Is Illegal (Even if You Own the Game) [Tom's Hardware]
“For the most part, emulators in and of themselves do not fall under any copyright infringement, depending on their purpose. And, as mentioned before, it’s unlikely a firm will call copyright infringement on a game if no company own the rights to it, or if no one really cares about the game. But what about the games people and companies do care about? It turns out, you’re welcome to emulate any game for backup, so long as it’s not used for commercial use. Check out what the U.S. Copyright Office has to say about it:
“Under section 117, you or someone you authorize may make a copy of an original computer program if the new copy is being made for archival (i.e., backup) purposes only; you are the legal owner of the copy; and any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.”
But selling that backup copy is another story, according to the U.S. Copyright Office:
“If you lawfully own a computer program, you may sell or transfer that lawful copy together with a lawfully made backup copy of the software, but you may not sell the backup copy alone. … In addition to being a violation of the exclusive right of distribution, such activity is also likely to be a violation of the terms of the license to the software. … You should be wary of sites that offer to sell you a backup copy. And if you do buy an illegal backup copy, you will be engaging in copyright infringement if you load that illegal copy onto your computer …””
• The retro gaming industry could be killing video game preservation [Eurogamer]
“The convoluted nature of the video game emulation sector means that emulators rarely stand still for long; like any other program they are iterated upon, improved, modified for different tasks and generally tinkered with endlessly, creating development forks which branch off in multiple directions. It transpired that the fork of Snes9x used in the Retron 5 could be directly attributed to De Matteis himself. "Snes9x Next/2010 was a speedhack-focused fork that I personally developed, open sourced and published on Github," he says. "I had to perform heavy alterations to this core to get it to run acceptably well on old hardware. It is likely they used the software for this exact reason; that the others were not up to par performance-wise and it offered a good balance between performance and compatibility. Needless to say, I was never consulted beforehand; software was simply taken and sold in spite of its license that expressly forbids this." In Hyperkin's defense, it's not like the company simply downloaded the code from the web and installed it on the Retron 5; like many firms of this type, it didn't develop the software in-house but instead purchased it from an external contractor. De Matteis knows who this individual is - and has informed Hyperkin that he is aware of their identity - but doesn't wish to name them here. Nonetheless, this contractor has profited off the hard work of the RetroArch team.”
posted by Fizz (68 comments total) 25 users marked this as a favorite
 
Until recently, it was not possible to buy many or most of these games on the marketplace.

Abandoned works, "orphaned" works, and products which the copyright holder has the means but chooses not to make available on the market -- all these should revert to the public domain. The same goes for patents. A patent which goes unimplemented and unmarketed should be null and void.

If a company has determined that they cannot make money by putting the product to market, then they are losing no money when it's hosted by archivists, fans, and yes, even pirates, so it should revert to the public domain.

This goes for out of print books, movies, and music, unavailable games and gaming systems, and abandoned software. Want to make money on your intellectual property? Put it to market, and you'll then get IP protection.

I'm well aware that this is not the world we live in
posted by tclark at 4:55 PM on August 9 [83 favorites]


And let's remember that there's no shortage of games that are being completely lost. Think of all of the digital-only games that have disappeared off of mobile marketplaces, WiiWare titles, Xbox Live Indie Games, and so on. MMORPGs - and any other titles that were entirely dependent on online servers - that have shut down.

All of these creations that are not only going to be lost, and deprive society of their value in the future. What good is that theoretical date when copyright expires (even if Disney and congress have effectively destroyed any real possibility that will ever actually happen anymore) and the work falls into the public domain if nobody has it anymore?
posted by evilangela at 4:59 PM on August 9 [5 favorites]


I'd download the shit out of a car if I could
posted by thelonius at 5:02 PM on August 9 [60 favorites]


First up though, let's discuss why Nintendo bringing the hammer down on ROM-sharing sites is a good thing. The sites tackled by the company in its recent legal actions were typical of this kind of operation; they hosted thousands of ROMs (most of which were taken from other sources online) and offered them for free download, with the money-making part of the setup coming from the floods of dodgy adverts. In short, these sites were profiting from handing out copyrighted material which they had absolutely no ownership of; from a purely legal perspective, it's an open and shut case.

The author does not make an even-slightly compelling case for why this is a good thing.
posted by Greg Nog at 5:04 PM on August 9 [56 favorites]


I hear there's been an overwhelmingly positive response, among publications with "Nintendo" in their name.
posted by sfenders at 5:11 PM on August 9 [63 favorites]


The author does not make an even-slightly compelling case for why this is a good thing.

I mostly wanted to use the Nintendo Life article as a spring-board for the discussion. I'm not really surprised (or convinced) that someone who writes for Nintendo Life is going to side with Nintendo.

Upon preview: what sfenders said.
posted by Fizz at 5:13 PM on August 9 [2 favorites]


*(or convinced they'd be sympathetic with the pirates/preservationists)
posted by Fizz at 5:21 PM on August 9 [1 favorite]


The author does not make an even-slightly compelling case for why this is a good thing.

I get that this thread is most certainly going to have an anti-copyright bend given the works involved are pushing 40 (!) years old and they should really be in the PD by now but if infecting less knowledgeable people with drive by malware for profit using stolen IP as bait is right then I'd rather be wrong.
posted by Definitely Not Sean Spicer at 5:36 PM on August 9 [2 favorites]


The whole NES library is ~ 250Mb or so. Good luck banning transfers which can take place in a few minutes. Nintendo's main profit from these titles is likely selling retro shirts at Hot Topic.
posted by benzenedream at 5:45 PM on August 9 [13 favorites]


Until recently, it was not possible to buy many or most of these games on the marketplace.

Until recently? It's still not. Go buy Super Mario Sunshine. That's a mainline game, a flagship first-party title for a main console, it won awards. Go buy it right now, on any service. Nintendo's eShop is miserably incomplete.

You can still connect a Wii U to the eShop and download Super Mario Galaxy and Galaxy 2 - also flagship first-party titles for main consoles - but they haven't manufactured Wii Us for 19 months. Can't download those for the Switch.

I get that this thread is most certainly going to have an anti-copyright bend given the works involved are pushing 40 (!) years old and they should really be in the PD by now but if infecting less knowledgeable people with drive by malware for profit using stolen IP as bait is right then I'd rather be wrong.

[citation needed]
posted by kafziel at 5:46 PM on August 9 [18 favorites]


There is so much stuff I want to buy that I legally can’t. My wife wants to play original Final Fantasy games. Short of finding ancient gaming systems and working CDs I can’t do that legally. I want to play certain old Nintendo games, I can’t. A lot of British TV shows? Maybe it’s on DVD, and maybe I have a region unlocked player, but I can’t legally watch anything recent. Canadian shows? Same thing. Old PBS shows? Same thing.

You could take these things that apparently have very little value to you, put them online and charge enough to make it worth your while so you have at least some plausible excuse for shutting down pirates, but you won’t do that.

I believe in IP rights and I want to give you money. Why can’t I do that?
posted by mikesch at 5:53 PM on August 9 [23 favorites]


Until recently, it was not possible to buy many or most of these games on the marketplace.

But they are now. And as long there is demand, we'll see more of them submitted to the ESRB and republished. It's long been known that the future of video games is digital distribution and these sites will directly and negatively impact publishers' income in the future. And we see that every time there is a discussion on products such as the NES and SNES classics or collections like Mega Man there are always commentators bragging about their Raspberry Pi or their PC emulation.

Imagine if Hollywood had given up the rights to movies prior to the advent of VCRs or television shows prior to the DVD format. Nintendo is in the unique position that they can actually see the future of their industry and they have not only an opportunity to be part of that future but a responsibility to itself.
posted by dances with hamsters at 5:53 PM on August 9


Strongly recommend watching Cifaldi's GDC talk from a few years back on this issue.
posted by Four String Riot at 5:57 PM on August 9 [4 favorites]


Well, the NES mini and SNES mini, which come with a couple dozen old games, have been selling like hotcakes smeared with hotsyrup, so I expect they do intend to monetize the nostalgia.

They're just slower than we would like.
posted by rokusan at 6:03 PM on August 9 [1 favorite]


Imagine if Hollywood had given up the rights to movies prior to the advent of VCRs or television shows prior to the DVD format.

I think it's more like, imagine if Hollywood hadn't lobbied to distort the purpose of our IP laws and extend copyright to effectively be infinite. By the time the VCR came along most of these things would have been public domain anyways.

Anyways: bleh. I like Nintendo a lot. I buy basically everything they make. I still will download ROMs to my heart's content, because seriously this stuff would not even still exist in some cases unless people who didn't "own" the works cared enough to preserve it.

I mean for god's sake, the version of Super Mario Brothers they sold on their own virtual console was actually a "pirated" ROM!
posted by tocts at 6:03 PM on August 9 [19 favorites]


Imagine if Hollywood had given up the rights to movies prior to the advent of VCRs or television shows prior to the DVD format.

My comment is relevant to the modern era where distribution of IP is trivial, and I also specified that the IP owner has the means to bring something to market and chooses not to. It's also only relevant to items that have been previously marketed and no longer available, so I don't mean leaked/never-sold IP.
posted by tclark at 6:04 PM on August 9


One of the things Cifaldi's GDC talk makes clear, just after the 15 minute mark, is that Nintendo has been downloading their own ROMS from the internet and selling them back to you via the Wii Console.

I feel like that part should be made explicit.
posted by mhoye at 6:06 PM on August 9 [50 favorites]


But they are now. And as long there is demand, we'll see more of them submitted to the ESRB and republished.

Tons will never be, because the rights issues are too tangled or the games are too obscure to justify it. The public domain should be rolled back to its original period. It should have been long ago.

You want to know what the effect would be, if NES games were in public domain, on Nintendo's bottom line? Not a damn thing. People constantly buy and rebuy things they already have access to anyway. I can always play The Legend of Zelda via emulation, but that didn't stop me from buying five other completely legal copies from Nintendo anyway: on a Gamecube disk, on a GBA cart, and three copies on various virtual consoles. All because it's just more convenient to play it on those systems.
posted by JHarris at 6:36 PM on August 9 [17 favorites]


And as long there is demand, we'll see more of them submitted to the ESRB and republished.

Licensed games, games that incorporate likenesses of real people, and games that have licensed music soundtracks cannot be distributed in their original form without re-upping those agreements. It's simply not profitable. The market isn't going to do the job of preserving the history of the medium.
posted by Merus at 6:38 PM on August 9 [6 favorites]


tclark: I keep wishing we had an intellectual property tax to discourage hoarding. Some sort of annual growth factor so it’d start out low but by the time it’s a decade or two out only the major hits are going to be worth keep restricted. I’d accept the Beetles and Mario never hitting the public domain if that meant all of the obscure things were free to preserve.
posted by adamsc at 6:39 PM on August 9 [11 favorites]


One of the things Cifaldi's GDC talk makes clear, just after the 15 minute mark, is that Nintendo has been downloading their own ROMS from the internet and selling them back to you via the Wii Console.

I feel like that part should be made explicit.


Yep.

Look, I'm not a copyright lawyer, but I'm going to put out there that in some of these cases, Nintendo can't even be truly sure that they have the right to publish this stuff either. They've been shown to be taking ROMs from the internet and just taking it on faith that it represents their IP. For all they know, even if the graphics are the same, the code may not be. It could be a total rewrite, or a substantially modified version of the original. The rights might actually be in a complicated state that would require serious disentanglement.

But of course, Nintendo doesn't actually believe in copyright law when it comes to restraints on them.
posted by tocts at 6:40 PM on August 9 [23 favorites]


You want to know what the effect would be, if NES games were in public domain, on Nintendo's bottom line? Not a damn thing.

Eh, not so fast there. Wider distribution of some of their originals could very well stoke interest in their recent software and hardware.
posted by ODiV at 7:00 PM on August 9 [5 favorites]


I'll just repeat what I said last time: without mame.dk, home of the underdogs, and whatever site you used to download console ROMs in the early to mid 00s, you wouldn't have virtual consoles, retro compilations and GoG now, or they would exist on a very different form. Videogame preservation made 20-25 years showed there was an interest in the old stuff released since the mid 70s, when almost every company was moving away from 2D or abandoning classic franchises altogether.

Nintendo didn't care about these games until years after some nerds managed to dump binaries from the ROMs and wrote emulators to run them. Side with them by all means if that's where your schoolyard loyalties lie, but don't pretend like the companies are those who kept the flame alive, and this is a good thing.
posted by lmfsilva at 7:06 PM on August 9 [36 favorites]


I think it is also worth highlighting that piracy is what enabled a generation of kids who grew up on the internet to get interested in Nintendo's catalog in the first place. For me, at least, being able to play these games I'd only read about and growing up on them was a huge factor in my current Nintendo loyalty.
posted by LSK at 7:25 PM on August 9 [9 favorites]


It this where I get to say private property is theft? Or perhaps: La propriété, c'est le vol!
posted by evilDoug at 7:44 PM on August 9 [4 favorites]


ROM sites? I thought everyone who wants to pirate these days just downloads readily available torrents with names like "6,453 Turbografx 16 ROMs (full collection including English fan translations and bootleg porn parodies)"
posted by naju at 7:56 PM on August 9 [9 favorites]


if you want to play a copy of EarthBound or Super Mario World, then there are perfectly legal options available...

There are NOW. There weren't, four years ago when I was liveblogging Homestuck and people were telling me there were lots of allusions to EarthBound. And as mentioned, there's still no re-release of Super Mario Sunshine, which is the only Mario game I've ever had an interest in playing.

I'm pretty sure I know why the re-releases of older games: while Sony BMG v. Tenenbaum was ruled in favor of Sony (because Tenenbaum was an idiot and a jerk, among other reasons), it contained a bit that had to terrify publishing houses of all sorts:
As it made clear previously, the Court was prepared to consider a more expansive fair use argument than other courts have credited -- perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense.
Emphasis added - so the judge basically said, "if there's no legit version available for purchase, proving damages and infringement becomes much, much harder."

Soon after that ruling the near-entire back catalog of Marvel and DC comics became available on Comixology. I wasn't surprised to see Nintendo realize they'd need to do something similar to go after emulator sites.
posted by ErisLordFreedom at 8:13 PM on August 9 [11 favorites]


I'm well aware that this is not the world we live in

In practice it kind of is, due to the "fuck you, you can jail me but you can't jail everybody" defence.
posted by flabdablet at 8:26 PM on August 9 [2 favorites]


Also it's a little weird that people seem to misremember that anti-piracy commercial as saying "download" instead of "steal". Funny story about that commercial: the music was used without proper license.
posted by ODiV at 8:29 PM on August 9 [11 favorites]


It’s within Nintendo’s right to do that. That said, I love my RetroPie but only made it after I couldn’t buy either of the Nintendo throwback consoles.
posted by furtive at 8:58 PM on August 9 [3 favorites]


Videogame preservation made 20-25 years showed there was an interest in the old stuff released since the mid 70s, when almost every company was moving away from 2D or abandoning classic franchises altogether.

Nintendo didn't care about these games until years after some nerds managed to dump binaries from the ROMs and wrote emulators to run them.


I'm not sure how much this applies to Nintendo, who has historically shown a lot of interest in mining its own IP and history. Even in the N64 era, Donkey Kong 64 included an emulator to run the arcade game (one of the few faithful emulations at the time), the N64 Animal Crossing included an emulator to run NES games, and they've recreated versions of World 1-1 in several of the Mario RPG games. They were also one of the first companies to do a remastered version of their old games: the Super Nintendo hosted a couple of compilations of the NES Mario games with Super Nintendo-era graphics.

The disdain for 2D was primarily from Sony and the games press.
posted by Merus at 9:07 PM on August 9 [1 favorite]


TECHNICAL INFORMATION ABOUT NES ROMS:

The reason we know Nintendo downloaded pirated NES ROMs is because the pirates standardized the NES ROM format. Why would it need to be standardized? Because not all the information needed to any given NES game is on the ROM. There's also the way the on-cartridge hardware - typically extra RAM - was wired. There were many configurations, which have been turned into standardized memory mappers by the pirates who figured it all out. These mappers have assigned numbers which are stored in special headers in ROM files. You literally can't emulate a NES game unless the emulator knows how its in-cartridge hardware was wired (if it doesn't know about a given esoteric configuration, it will spit out a 'mapper not supported' error upon discovering its mapper number in a ROM header).
posted by BiggerJ at 11:17 PM on August 9 [24 favorites]


Nintendo didn't care about these games until years after some nerds managed to dump binaries from the ROMs and wrote emulators to run them.

It's even worse than that. One of those nerds, the creator of the iNES emulator, was actually hired by Nintendo to write one of their earliest emulation products, the Famicom emulator in Animal Crossing. He actually made it a general purpose emulator, and if you put an NES rom on a Gamecube memory card in just the right format, then when you interact with a "plain" NES object in your house in-game, it will detect that file on the card and offer to play it. This is in the release version of Animal Crossing, no one knew it'd do that for years because Nintendo never made any roms available on memory cards. Even now, Nintendo's Virtual Console emulation of Famicom software make use of the iNES file format that most NES/Famicom roms are distributed in.

It’s within Nintendo’s right to do that.

YES YES WE KNOW. As the first comment said, "I'm well aware that this is not the world we live in." We're not talking about current legal facts, we're talking about what the law should be.

Copyright law has been horrible for decades. I remember people (including myself) angry about this 20+ years ago. It's not gotten better in all that time; indeed, it's gotten worse, due to stupid things like the DMCA.

Until people make it a voting issue, or at least a call-your-congressperson issue, this is not going to get fixed. It's not enough to just loudly say things should be different. We have got to agitate, and agitate a lot too, because it's got to make up for the well-heeled corporate interests lobbying congresspeople to keep the law the way it is (when they're not actively making it worse).
posted by JHarris at 12:03 AM on August 10 [13 favorites]


Also it's a little weird that people seem to misremember that anti-piracy commercial as saying "download" instead of "steal". Funny story about that commercial: the music was used without proper license.

Or maybe Fizz, like many, is making fun of the idea that downloading a file is the same as stealing a car.
“You wouldn't download a car!” isn't a misremembrance, it's an intentional mockery.

posted by ActingTheGoat at 1:14 AM on August 10 [12 favorites]


People constantly buy and rebuy things they already have access to anyway. I can always play The Legend of Zelda via emulation, but that didn't stop me from buying five other completely legal copies from Nintendo anyway: on a Gamecube disk, on a GBA cart, and three copies on various virtual consoles.

This.

I believe in IP rights and I want to give you money. Why can’t I do that?

Also, this. I've triple dipped video-games that I love on multiple systems and some part of me is like: “Why are you paying for this again because you already have it on PC, Vita, and now the Switch!! This is madness!”

I also recognize porting a game to a new system/platform does require work, work that someone is doing, and I also just want to have the game in my hands in whatever format and platform I want it in. So I'm willing to pay for the things I want, just let me have access to them in a reasonable way.

*sighs*
posted by Fizz at 5:00 AM on August 10 [2 favorites]


ROM sites? I thought everyone who wants to pirate these days just downloads readily available torrents with names like "6,453 Turbografx 16 ROMs (full collection including English fan translations and bootleg porn parodies)"


Last night I was trying to find a torrent of the apk of an Android game that I had bought years ago and is now no longer on the Google Play Store (a whole nother thing) and I almost downloaded a NES emulator and literally 1000+ games just because it came up in the search results and was only a couple hundred megs.

Yo, if you have a Shadowrun: Dragonfall apk, hook me up.
posted by Rock Steady at 6:15 AM on August 10 [2 favorites]


I'd download the shit out of a car if I could

My friend I have a printer to sell you.
posted by Going To Maine at 7:15 AM on August 10 [1 favorite]


Or maybe Fizz, like many, is making fun of the idea that downloading a file is the same as stealing a car.

I don't doubt it, sorry for the implication. Still, many people I've talked to about this over the years are surprised to find out the commercial actually said "steal" and I thought it was interesting. I had one such conversation recently so that's why I brought it up here.
posted by ODiV at 7:25 AM on August 10 [2 favorites]


And let's remember that there's no shortage of games that are being completely lost. Think of all of the digital-only games that have disappeared off of mobile marketplaces, WiiWare titles, Xbox Live Indie Games, and so on. MMORPGs - and any other titles that were entirely dependent on online servers - that have shut down.

I haven't touched my 360 in years but I'm not getting rid of it because it has quite a few download only games that had a limited-time licensing agreement that has since expired and will never, ever be sold again on any future system. Scott Pilgrim vs The World (a side-scrolling brawler that goes through MY neighbourhood!?!?!), X-Men the arcade game, Turtles Through Time, etc etc.

Nintendo's position - we SELL these games now - is fine as long as you don't look at it closely. I'm good with saying downloading something that can be readily purchased = piracy. But games that aren't for sale any more really shouldn't be the focus of anyone's lawsuits. And Nintendo, with their supply constrained retro mini consoles and lack of Virtual Console on their newest and fast selling console is still making it too hard for people to just go out and buy the old games they want to play.
posted by thecjm at 7:36 AM on August 10 [1 favorite]


I'd download the shit out of a car if I could

My friend I have a printer to sell you.


Funny story: the Aston Martin they blew up in the Skyfall movie was a 3D-printed replica. They did, in fact, download a car.
posted by mhoye at 7:44 AM on August 10 [12 favorites]


I've triple dipped video-games that I love on multiple systems and some part of me is like: “Why are you paying for this again because you already have it on PC, Vita, and now the Switch!! This is madness!”

Triple is starting to seem more reasonable than the number of times I've purchased Chrono Trigger and Secret of Mana in order to keep playing them in a "legit" way. Even for the games that are available, at some point, at some point, dear god isn't there some point where we become entitled to access the game permanently because we've poured enough money into the damn thing. I can't be the only one who has not only bought many games two or three times but more than one four and at least one five, and yes sometimes new versions have provided stuff like the ability to access it on a handheld, etc, but for the most part the "features" added by ports are dumb and useless and all I want is to play again the thing I did actually pay for.
posted by Sequence at 7:49 AM on August 10 [2 favorites]


downloading is stealing... "and there will be consequences"...

Definitely a meme-parody. (My favorite is the link above from "The IT Crowd")

And, eventually when the commercial world catches-up to the reality of 3dprinting, everyone will be downloading "physible" cars (maybe toys) - legally and for sale from one corporate marketplace or another. It will be the same evolution as the ability to purchase downloadable games and the overall shift away from physical media.
posted by jkaczor at 8:05 AM on August 10


I've triple dipped video-games that I love on multiple systems and some part of me is like: “Why are you paying for this again because you already have it on PC, Vita, and now the Switch!! This is madness!”

Sometimes it's to inflate sales figures and signal to execs that yes, we're fucking desperate for more of this. I bought Sonic Mania on three platforms because I wanted more of it.
posted by Definitely Not Sean Spicer at 8:07 AM on August 10 [1 favorite]


I've triple dipped video-games that I love on multiple systems

I literally just bought a Flashback Portable so that I have Yet Another Working Version of Atari Adventure.

I wish I could say I was kidding.
posted by hanov3r at 8:21 AM on August 10


I almost downloaded a NES emulator and literally 1000+ games just because it came up in the search results and was only a couple hundred megs.

Oh yeah, that's a thing on phones I've discovered lately. It's almost worth buying an Android phone solely for the easy access to emulators. I have a Gameboy Advance emulator called My Boy! on mine with completely customizable/movable/shrinkable controls to fit my hands and screen exactly as I want, and it's an interesting quandary to figure out which GBA games are best playable on a phone:

1) No action or twitch stuff - my reflexes are bad without joysticks and buttons
2) Turn-based, so I can take my time
3) Deep and complex enough that it can hold my interest
4) Preferably playable with one hand if I need to, on standing-room-only train commutes or while my baby sleeps on my chest

So far, likely candidates are: the Advance Wars and Fire Emblem series, Final Fantasy Tactics Advance, Riviera: The Promised Land, the Golden Sun series, Chu Chu Rocket, and (the following are Japan-only releases with English fan translations) Mother 3, Magical Vacation, Dragon Quest Monsters: Caravan Heart.

Definitely not spoiled for choice. It's not like NES is deeply monetizing the back catalogue of Gameboy Advance games at the moment. People are clamoring for both Advance Wars and Mother 3 on modern Nintendo consoles and they've been completely deaf to those requests. So I can't say I feel too bad. I've spent hundreds on my Switch over the past year and evangelized the system to everyone I can, so I think I've more than made up for a few transgressions.
posted by naju at 8:36 AM on August 10 [1 favorite]


Good thing I have the Goodsets downloaded for NES, SNES, GB, GBC, GBA, Sega Master System, Sega Genesis, and a few other odds and ends, and got em all down a couple years ago...

Just give me a way to play the old games I want to, and you'll get my money. And Microsoft, find a way to digitize and emulate the Dreamcast since its your underlying OS. I'd give you ALL the money to play some of those games again without hooking up another box.
posted by deezil at 9:06 AM on August 10 [4 favorites]


Nintendo's position - we SELL these games now

That's not quite it. They sell some of those games now. A very very small proportion. They aren't asking for just their first-party titles and the few they've worked out licensing with the still-extant developers on to be removed. They're going for the whole sites.
posted by Dysk at 9:58 AM on August 10 [2 favorites]


And Microsoft, find a way to digitize and emulate the Dreamcast since its your underlying OS

Wow... TIL... Well, while it might have been a "failure" long-term for Sega, the lesson learned by at least Microsoft was to try and use as much commodity hardware in consoles as possible. Except, the 360 had that odd deviation into the PowerPC realm... then again, I guess 'everyone' was dabbling with RISC during that console generation.
posted by jkaczor at 10:19 AM on August 10


The Dreamcast didn’t come with Windows CE and it wasn’t the underlying OS. Of the 636 Dreamcast games, 75 of them used Windows CE as their base and booted into it from the disc.
posted by Definitely Not Sean Spicer at 10:36 AM on August 10 [3 favorites]


So far, likely candidates are: the Advance Wars and Fire Emblem series

I keep expecting re-releases of the older Fire Emblem games given how much they're promoting all of them via Fire Emblem Heroes, but it doesn't seem to be happening. So many characters in the mobile game from older games that just aren't available for sale: are they trying to get people to download them through other channels?
posted by asperity at 10:52 AM on August 10


The Dreamcast didn’t come with Windows CE and it wasn’t the underlying OS. Of the 636 Dreamcast games, 75 of them used Windows CE as their base and booted into it from the disc.

One of the zillions of things about the history of video games that almost certainly would not be known without the emulation scene and ROM-dumping/preservation. If anybody at Sony had ever kept track of those stats, they probably weren't retained any longer than that person's job.
posted by straight at 10:57 AM on August 10 [5 favorites]


Except, the 360 had that odd deviation into the PowerPC realm... then again, I guess 'everyone' was dabbling with RISC during that console generation.

The biggest thing with that generation is that we were just embracing the nascent embarrassingly parallel GPU implementations. Keep in mind a Xenos only had 48 vector pipes and topped out at around 240 GFLOPS. The Xenon CPU had monster vector hardware, had six of them and ran at 3.2GHz. It backed up Xenos with another 90 GFLOPS of horsepower. Cell was even more so, pushing past 200 GFLOPS and able to handle stuff for the GPU when it was running flat strap.

These days we have pretty shitty CPUs in consoles but the GPUs are mini monsters. The 8 core Jaguar in these machines are barely more powerful than Cell but the GPU in even a base PS4 is now a teraflop and a half. A PS4 Pro is over 4 teraflops and the the Xbox One X is 6 teraflops. There’s just nothing the CPU can do to appreciatively help graphics performance so there’s no point in putting in a blisteringly fast CPU so we head back to commodity hardware that’s cheaper but still capable.
posted by Definitely Not Sean Spicer at 11:49 AM on August 10 [1 favorite]


I haven't touched my 360 in years but I'm not getting rid of it because it has quite a few download only games that had a limited-time licensing agreement that has since expired and will never, ever be sold again on any future system. Scott Pilgrim vs The World (a side-scrolling brawler that goes through MY neighbourhood!?!?!), X-Men the arcade game, Turtles Through Time, etc etc.

At least for now, the games you've purchased are tied to your account, and even the delisted ones are available for re-download for people who have purchased them.

But it's safe to assume this won't be the case forever, and because of the way the purchased games have the licenses, you can't just transfer them to another console if the one they were last downloaded on dies. Unless someone figures out how to crack that licensing, they'll slowly disappear.

(Interesting fact is that at least one de-listed XBLA game was updated to work on the Xbox One X. I can't recall which one offhand, but I remember seeing something about it and find it interesting.)
posted by evilangela at 11:59 AM on August 10


dear god isn't there some point where we become entitled to access the game permanently because we've poured enough money into the damn thing

It's a teeny, tiny baby step, but Steam automatically comped me the remastered version of Bioshock without me noticing at some point, because I owned the original. that's certainly different from owning a perpetual, cross-platform license for a decades old classic, but it's a gap in the mortar at least.
posted by Lentrohamsanin at 12:06 PM on August 10 [2 favorites]


Sega comped me a free upgrade from its poorly emulated Sonic The Hedgehog for Genesis on iOS to the modernized update from Taxman and his team which is a wonderful improvement, but then it later upgraded me again when it changed the app from paid to free, jamming ads into a game I had previously paid for, and of course the button to restore my purchase doesn’t work, so this stuff cuts both ways.
posted by Servo5678 at 12:27 PM on August 10 [2 favorites]


I'm good with saying downloading something that can be readily purchased = piracy.

There's even a problem with that, which is that Nintendo sells locked-off games stuck on their systems. You can't easily install romhacks into those games, and you can's easily play randomized versions either.

There is a ton of energy in the game randomization scene right now, it has injected new life into dozens of different games. The act of speedrunning The Legend of Zelda, and that of speedrunning a custom-randomized version of it, is completely different. If NES games were public domain by now, all of that fun would be completely legal and okay, instead of something in danger of being destroyed every time Nintendo shifts its weight.
posted by JHarris at 4:50 PM on August 10 [1 favorite]


Nintendo in particular seems to have a particular aversion towards it, he noted, pointing to their official statement on the issue which has been available at their corporate website for the last 16 years.

This is a very bad statement, choosing its words carefully to make the guilt-by-association claim that software emulation itself is an illegal activity. The NES in particular contains no copyrighted software or other technology that could convincingly be protected, so no NES emulator sans ROMs is illegal. It's clear that Nintendo would love to successfully make this legal argument, though.
posted by RobotVoodooPower at 5:15 PM on August 10 [2 favorites]


> I'd download the shit out of a car if I could

Wasn't there a torrent floating around for a while that was called "A Car", but it was something like half a petabyte?
posted by lucidium at 6:15 PM on August 10 [1 favorite]


So Four String Riot, that GDC talk starts with 'man, I wish there had been a gaming culture when I was a teen' and then moves smoothly on to 'and I looked like a girl!' with a lol photoshop. At the moment I am noping out of this as it front loaded with not for me messages.

Does it get better or this tone a constant drip drip drip for a hour?
posted by hfnuala at 12:03 AM on August 11 [1 favorite]


I keep expecting re-releases of the older Fire Emblem games

seriously, seriously, seriously, these aren't even obscure games. Fire Emblem is a popular franchise, it's a tentpole franchise. It's got seven characters in Smash. The most recent console game (Echoes) hit #1 in sales in three fucking countries. Used copies of these games go for hundreds of dollars. Nintendo could price a Path of Radiance ROM at $200 per download, and they'd still get some takers. it. is. insane. it's insane. It's insane!!
posted by Rainbo Vagrant at 8:02 PM on August 11


Hum. I don't really see much to these arguments other than "I have a right to your video game, because I LIKE it!" But then again, I'm coming from the perspective of the literary world, where authors who supported taking the piracy site oceanofpdf down, got accused of elitism.

I honestly don't see that much difference between wanting to download an out of print video game, and pirating an author's work. The arguments for copyright expiration still end up as "Pick this arbitrary point of time which is convenient for me, so that I can take your work." If I create something, and I want to choose how and when it's available, don't I have that right?

Then again, I ALSO come from an archaeologist point of view that everything put online is going to be lost to history. I don't see these materials existing a hundred, much less a thousand years from now.
posted by happyroach at 8:27 PM on August 11


Hum. I don't really see much to these arguments other than "I have a right to your video game, because I LIKE it!" But then again, I'm coming from the perspective of the literary world, where authors who supported taking the piracy site oceanofpdf down, got accused of elitism.

I honestly don't see that much difference between wanting to download an out of print video game, and pirating an author's work. The arguments for copyright expiration still end up as "Pick this arbitrary point of time which is convenient for me, so that I can take your work." If I create something, and I want to choose how and when it's available, don't I have that right?

Then again, I ALSO come from an archaeologist point of view that everything put online is going to be lost to history. I don't see these materials existing a hundred, much less a thousand years from now.


This is so fundamentally absurd. Libraries engage in digitizing and archive work for out-of-print books all the time, because they just can't be had any other way. Original media is restored or preserved, and the contents transferred, because paper is too fragile to keep things. And still so much is lost or unavailable.

Games? You don't have to go back a hundred years. People have been pointing to Fire Emblem: Path of Radiance a lot. It was a big release, on a big console, only 13 years ago! The main character has been in the last two Smash Bros games, and is gonna be in the next one! And yet look at how much a copy costs, because it's never been reprinted or rereleased. And it's cost that much for years. There's a market, there's been a market for a long time, but there's no way to get it for less than a truly outrageous secondhand price, none of which goes to Nintendo.

This isn't the same as an in-print, for-sale book being pirated, at all. There's no such thing as generations of books coming out where you need special hardware to play books that were published in a certain small timeframe of years and then new hardware for the new books, and the old hardware stops getting made. Games are not the same as books. Your bad analogy doesn't work.

And, y'know, if a book is out-of-print and literally impossible to buy firsthand anymore, then there's really no good argument against pirating that either. The authors who claim that reading a book more than once without buying a second copy is piracy and stealing from them are just full of shit.
posted by kafziel at 10:27 PM on August 11 [2 favorites]


If I create something, and I want to choose how and when it's available, don't I have that right?

You do. Should you have that right is a different matter, though.
posted by Dysk at 12:36 AM on August 12


The arguments for copyright expiration still end up as "Pick this arbitrary point of time which is convenient for me, so that I can take your work."

I suppose you view Project Gutenberg as basically equivalent to the Pirate Bay then? Or do you accept that copyright expiration is a good, natural, and necessary thing?
posted by Dysk at 12:37 AM on August 12


If you don't want people to "take your work", don't publish it or otherwise make it public. It is the default and natural state of things that anyone can copy anything they see, read, or hear; it is what we have done for thousands of years. Copyright was invented as a recent and very specific bargain: artificially prevent said natural state for a period of time so as to encourage more people to produce work that will eventually join the great sea of common culture. It is, in fact, at this point a wildly overgenerous bargain, so the fact anyone is whining about a copyright expiration that takes place nearly a century after the creator's death is lunatic.
posted by tavella at 1:26 AM on August 12 [3 favorites]


We really need to get away from the concept of ideas and speech being “owned” like chattel and this all being an issue of a rights-holder having a government-enforced ability to control what others read or think or do. Our society devotes enormous amounts of money to this and most of it doesn't go to the actual inventors and creators and authors.

I'd be totally okay with the authors and creators of games being compensated for the rest of their lives in proportion to the consumption of their works, with no middlemen involved siphoning off money. We're already beyond any costs involved in physically manufacturing copies—which would tie compensation of authors and creators to the owners of the infrastructure for that production—and the ubiquitous surveillance we'll eventually have will enable directly measuring how much a work is read or viewed or used. We have to decide whether that surveillance system, which should operate in service to society, will be used in service of actually compensating authors and creators, or whether it will (among other things ubiquitous surveillance will be used for, and currently is used for) simply serve as a cog in a DRM machine for funneling money to “rights-holders” who may have no relation whatsoever to the actual creation and development of the “intellectual property”.

Mary Lou Jepsen is a former Vice President of Intel's display division, executive at Facebook / Oculus VR, and a founder of the One Laptop Per Child project. She gave a Google Solve For X talk in 2012 and a TED talk in 2013 during which she displayed some video of what a subject was seeing out of their eyes reconstructed from MRI scans of their brains. (Research produced by someone else, a group at Berkeley.)

Now she has a tech start-up trying to create “optical MRI” technology, providing even better 3D tissue scans but based on cheap consumer electronics camera sensors. She seems certain that if the technology continues to prove more viable not only will the medical applications she's working on be possible but so will some level of insight into what a person being scanned by the sensor system is actually thinking about.

So in our brave new surveillance panopticon, not only will our personal pile of consumer electronics and smart bangles—and maybe some sensors an environmental scientist has scattered in a nearby tree to count and observe a particular species of caterpillar—record every sound we make and our every facial expression, they may well record what we're thinking about all the time. And hence, it may be possible for the “owners” of ideas to meter their fees based on how often everyone is thinking about the owned works from moment to moment. If Drake can trademark the phrase “God's Plan” he could feasibly get royalties every time anyone thinks about God's plan.

The ownership of ideas and speech in the era of ubiquitous surveillance we have ushered in is a real societal issue we will need to deal with. (Or, more likely, suffer from without really dealing with like we do for most problems.)
posted by XMLicious at 3:53 AM on August 12 [1 favorite]


Copyright just needs a one year free for everyone then registration fee with Fibonacci progression. First year, one dollar. Second year, two dollars. Third year, three dollars. Fourth year, five dollars.

Anticipate money from it? Pay the fee. Still making money off it? Pay the fee. Want to keep it? Pay the fee. Done with economic exploitation of a monopoly? Into the PD it goes. Twenty years in? $6,700. Thirty years in? $832,000. It's a tax on hoarding IP and also a strong incentive to pass it into the PD.

It'd stop this fucking madness of life + a billion years.
posted by Definitely Not Sean Spicer at 7:24 AM on August 12 [6 favorites]


As I saw recently pointed out on Twitter all copies of the film Nosferatu were ordered destroyed because of a copyright infringement suit from Bram Stoker's estate. Thankfully, one copy made it out so we can still watch and study it today.

There are also several stories out there, some of them very recent, of rights holders appealing to the public and past employees for copies of the works they've somehow lost.
posted by ODiV at 8:02 AM on August 13 [2 favorites]


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