Nintendo has laid the smack down on a couple of popular emulation websites. Of course, while emulators are legal software, rom distribution is not, although most efforts to stamp them out have proved futile. Nintendo chose to nuke LoveROMS and LoveRETRO from legal orbit, with millions of dollars in damages at stake. While Nintendo is within its rights to take such an action, it comes off as performative, and the results of the lawsuit could set a troubling precedent with a nasty ripple effect.
Like I said before, Nintendo is well within its rights to go on the attack against a site hosting Nintendo roms. Copyright law insists that companies take action to protect their intellectual properties in order to maintain those rights. These sites in particular were based in Arizona, and the US is notorious for having the most aggressive and corporate-friendly copyright legislation. These sites likely had a huge target on their backs once discovered.
But the damages Nintendo is asking for are ludicrous. We’re talking millions of dollars, potentially upwards of $100 million if Nintendo is awarded its full demands by Arizona courts. This, and even smaller numbers, will likely ruin the site owner’s life. Rom sites in 2018 are no MegaUpload, and the owner of LoveROMS is likely no Kim Dotcom.
This reminds me, somewhat, of the Hulk Hogan/Gawker lawsuit. Obviously, the particulars are different, but especially if you consider the involvement of Peter Thiel, what we’re looking at here is a wealthy party seeking to make an example out of a weaker, subversive party. Roms and emulation are legally debatable sure, but they’re also disruptive. That’s what makes the larger interests go on the attack, not the dubious losses from decades-old software.
If Nintendo succeeds, we could potentially see the floodgates open for this sort of suit-filing, and other companies could follow the company's example once the precedent is set. We’re already living in a world that has allowed Net Neutrality to be rejected. This could be the first step of the power balances online shifting even further to corporate interests over individual users. But the other thing I’m worried about is history.
Roms and emulation is often the only front of preservation for video games. Many companies do the bare minimum of preserving art, projects, and the memories of creators and their efforts, some don’t even bother at all. If it wasn’t for the efforts of hackers and coders cracking games for free play, these titles would be lost forever, or stuck in some vault somewhere until the carts and discs rot.
Nintendo obviously re-releases old games all the time. But its efforts have been inconsistent at best. The Virtual Console has been unstable for years, and doesn’t even exist anymore. Licensing issues plague re-release efforts, and we often see the same small handful of titles come back over and over, while less protected works continue to fade into the distance. If efforts to shut down emulation progress, that’s actual history on the line regardless of the laws.
Cases like these are always full of conflicting feelings on my part. There's always that nagging feeling that defending a scene so linked to piracy could come back to bite me. Then there's the part where I like Nintendo, and enjoy supporting efforts like Virtual Console, frustrating as they mey be. Finally, there's the more rebellious part of me that thinks rom files are an overall benefit to the gaming community. I care about things like preserving history, especially in a medium in which it should be a no-brainer. The fact that games are lost is shameful, that data just sits in storage until it's lost or destroyed when backing up data is one of the easiest things to do is baffling. Sure, curation takes effort, but when the community is doing it for you, for free, why stamp it out? Is money actually being lost here on a grand scale? I have my doubts. You do you, Nintendo, but I wish corporate decision-making would be a little less short-sighted.