Video Game Emulation: Piracy For Preservation

For the computer user that spends their time playing old Mario games or speedrunning DOOM in their downtime, the shutdown of the website Emuparadise likely sent a shock to the system. Emuparadise was one of the foremost distributors of digital copies of video games that are otherwise only available for purchase on consoles. Much to the dismay of the companies that sell the games, sites like Emuparadise allow users to download games like the old Marios or Tetris free for use on their computers. In a continuing fight against them, Nintendo, much loved purveyors of jumping plumbers and other electronic joys, threatened to sue the website for distributing copyright content. To be entirely fair, they were, but is the reasoning for distribution purely nefarious, or do websites like Emuparadise hold a more important place in preservation of a medium that’s not properly archived?

Emulation, as defined by game developer and archivist Frank Cifaldi in “‘It’s Just Emulation!’” The Challenge of Selling Old Games, is one computer imitating another computer. For video games, this is done through the use of an emulator, a program that mimics the hardware of a video game console. In other words, emulators are the reason you can play DOOM on your new computer, your graphing calculator, and even some ATMs. The popularity of emulators spread through online forums in the 1990s within communities that reveled in being able to play games, even if they were a decade old, on their computers. And oftentimes more importantly, games that were only accessible through obscure arcade cabinets or never released in America were now accessible thanks to other users providing the files completely free of charge.

Due to technical limitations, the history of video game emulation on computers is not that old. Computers have hardly been powerful enough to run console video games for two decades. 1997 was an especially big year, as it marked the release of one of the first widespread NES (or Nintendo Entertainment System) emulators: NESticle.1997 also saw the release of another important emulator: MAME, the Multi Arcade Machine Emulator. MAME and NESticle (among others) were passed around online forums and chatrooms at a time when new games on the Nintendo 64 (released in 1996) and the Playstation (released in 1995) were completely revolutionizing what the medium was capable of with 3D graphics and cinematic storytelling.

However, the importance of emulation was not in graphics, but in accessibility. Even if computer users were playing decades old 8-bit games, being able to play and modify games on computers meant that they didn’t have to go out and spend several hundred dollars on old consoles. Similarly, David Murphy points out in his piece about MAME that arcade machines were originally based around a players skill and players that were not as good at games simply had to pay more. MAME allowed for computer players to fully experience games that would have been a much larger time/money sink were they to play on an actual arcade cabinet. Most importantly, it meant that users could experience the history of video games up to then from their computer desk, free of charge. However, this was exactly why the emulation scene managed to attract the attention of big video game companies.

Emulation has stood trial in court a few times, most notably in the 1999 case SONY COMPUTER ENTERTAINMENT v. CONNECTIX CORP. In the case Sony went after the Virtual Game Station, a commercially sold Playstation emulator designed for Macintosh computers that allowed for Playstation games inserted into a Mac’s CD drive to be played as if on a console. The kicker? VGS cost roughly half of what a Playstation console did. Ultimately, the Ninth District Court of Appeals ruled that emulators were protected under fair use and selling a console emulator presented no threat to Sony. VGS was technically doing no wrong as they were still requiring people to purchase the actual games legally. With their loss in court, Sony took matters into their own hands and bought VGS to shut it down. As such, while emulation itself is legal, proliferation of a game’s files (typically referred to as a ROM, named after the file type) does violate copyright law.

This verdict was reinforced in the 2000 case SONY COMPUTER ENTERTAINMENT AMERICA v. BLEEM. Similar to VGS, Bleem produced commercially sold Playstation emulators for other consoles like the Sega Dreamcast, a competitor to the Playstation, while still requiring purchase of the Playstation games. Using Sony v. Connectix as precedent, the court upheld that emulation software was free to use, but usage of the ROM files inside of a video game cartridge (the inside of a Nintendo 64 cartridge pictured) or on a game disc was copyright protected. Bleem was off the hook legally, but the fees of the court case put them out of business. With the legality of emulation protected by the court, companies looking to curb its usage have had to focus on sites distributing ROM files like Emuparadise. Unfortunately, this continued venture to protect intellectual property is making archiving very difficult.

Regardless of its questionable legality, emulation serves an important purpose for video game archivists and casual fans alike. Preservation of video games is not great. Old video games that do not receive an official re-release or distribution on computers or new consoles fall to the wayside, only playable by collectors with old consoles that still function. Cifaldi makes the point that if you wake up tomorrow and decide you want to watch the 1989 John Candy flick Uncle Buck, you could just peruse Netflix, Amazon Prime Video, Hulu, etc. until you find the platform that the movie is available on. Failing that, the movie is readily available on Blu-Ray and DVD either in retail stores or online.This system isn’t perfect; lots of movies aren’t available to stream and according to the Film Foundation, an archival organization headed by director Martin Scorsese, about 90% of the films made before 1929 no longer exist anywhere. But for the most part, movies, books and music have online storefronts where they can be accessed easily for purchase or online use. Video games aren’t so easy. Most popular games like your Marios, your Final Fantasies, and your Call of Duties are available either virtually on the newest generation of consoles or on rerelease packs that are available physically. But what if you want to play something more obscure, less popular, or never officially released outside of Japan? Chances are there’s no way to do so legally.

Nintendo keeps their feelings towards emulation displayed prominently on their website’s legal page and these feelings are almost universally the industry standard. 

But Nintendo’s recent attacks on ROM distribution websites brings into question the future of video game preservation. Studies have found that video game piracy doesn’t hurt video game sales, but actually helps it. With no Blockbuster on every street corner to rent out video games, it can be a hard decision to shell out $30-60 for a new release without knowing how you’ll feel about it. And for older releases with no reissues, there is no way to directly pay a company for its obscure back catalog games. At the end of the day, eBay sales don’t help Nintendo, so the difference between a download and a used sale mean nothing to the company, but to the consumer: one is free.

In fact, companies are having a hard enough time keeping track of their games between licensing problems and pure preservation issues. The creator of the original Prince of Persia lost the source code for the 1989 game until his father found the floppy discs containing it in the back of his closet in 2012. Even Nintendo, with all of the work they put in to preserving their own old games, has a difficult time. 721 games were commercially released for the Super Nintendo Entertainment System (SNES) in North America. In total, 74 of these titles were sold on the Nintendo Wii’s now defunct Virtual Console–a digital storefront for purchasing old games on the Wii–in North America. History hasn’t been kind to Nintendo’s well-known franchises either: the official release date for the original Super Mario Bros. on the Nintendo Entertainment System (NES) is unknown. Nintendo has made clear its feelings about the ownership of its ideological property, but the precedent that it has set has made its history inaccessible, and other companies like Sega, Microsoft, and Sony have largely followed suit. Old video games, unless they are incredibly popular, rarely get released again and this means that even if deemed bad or historically insignificant by companies, a large portion of old created content is rapidly vanishing.

Efforts are being made to preserve video games and make old games more accessible, but copyright law is a fickle beast to wrestle. Emulation has come a long way from the days of Nesticle, but the takedown of Emuparadise spells trouble for the distribution of ROMs everywhere else on the internet. Copyright is one thing, but where does this leave the already deteriorating annals of video game history and the guerilla activists being forced to work outside of the law to preserve it? It took too long to come to the decision to preserve films and music to prevent everything from disappearing and this history is already being repeated with video games. Efforts are being made to change this; the Library of Congress accepts video games into their stacks as does the Smithsonian and digital storefronts like Steam and GOG (Good Old Games) for computers are selling more old games. But if companies continue to attack the infrastructure that allows fans to discover their history, that history might just disappear.