After All That, Nintendo Can't Even Get $50 A Month Out Of RomUniverse

from the time-and-money-well-spent dept

The saga of how RomUniverse, a site dedicated to offering ROMs for classic Nintendo games, came to its end is both frustrating and very dumb. Back in 2019, Nintendo launched a massive war on ROM sites, coinciding with the release of a mini version of Nintendo's NES console. Eventually, the company's sights turned to RomUniverse. Run solely by Matthew Storman, the site first tried and failed to crowdfund its legal expenses, made the lame argument that somehow the first sale doctrine meant that Storman could legally offer up digital versions of bought Nintendo games, only to see Storman represent himself in court and eventually lose. While Nintendo always had the law on its side, it was also true that sites like RomUniverse existed for a long, long time and Nintendo wasn't injured enough by any of this for it to be on the radar prior to the ROM War of 2019. In fact, I would argue that ROM sites for a long, long time kept up the interest in these classic games that created a market for Nintendo's classic console releases.

I would also argue that the whole thing was a giant waste of time and money, an assertion backed up by the fact that the victorious Nintendo reportedly can't even get $50 a month out of Storman, despite court orders.

You can’t get blood from a stone, and you can’t squeeze a relatively measly $50 payment out of a guy whose primary source of income was the video game rom site you sued into oblivion. Earlier this year Nintendo’s 2019 lawsuit against website RomUniverse concluded with the site being shut down and Nintendo awarded $2.1 million dollars in damages. That’s $35,000 for each of the 49 Nintendo games found on the site plus $400,000 in trademark damages. The chances of Matthew Storman, who defended himself in court and whose only source of income was the now-defunct rom site, being able to pay those damages are incredibly slim. In a recent court filing obtained by Torrentfreak, Nintendo complains that Storman hasn’t made his court mandated monthly payment of $50.

As a result, Nintendo is seeking a permanent injunction against Storman to keep him from ever re-launching RomUniverse. That, frankly, may be what the company was after this entire time.

But that doesn't make the futility of this whole legal enterprise any more sensical. Nintendo managed to legally pummel a single man who was, admittedly, infringing their copyrights. But one is free to wonder aloud if this legal route was really the only method Nintendo had for getting the site shut down. If Storman truly cannot manage a $50/month sanctions payment to Nintendo, there is no hope of them recovering the $2.1 million awarded in court, an amount that Storman also appears by all accounts to be unable to pay.

And so Nintendo has a legal victory without any monetary award, Storman's own actions have resulted in his fiscal life likely being in shambles, and we all go on our merry way. Again, this is really how this had to happen?

Filed Under: classic video games, copyright, matthew storman, nes, old video games, roms, trademark, video games
Companies: nintendo, romuniverse

Unknown Nintendo Game Gets Digitized With Museum's Help, Showing The Importance Of Copyright Exceptions

from the lost-history dept

Roughly a year ago, we wrote about how museums were requesting an exception to the DMCA's anti-circumvention provisions in order to preserve online games. While the Librarian of Congress has already allowed for exceptions for preserving non-online games, the request led to pushback by the Entertainment Software Association, which indicated preserving online games would be copyright infringement. Nintendo is a member of the ESA and the gaming giant was at the same time going around to ROMs sites all over the internet and either threatening them with legal action or scaring them into shutting down. This happened all while Nintendo also released several retro consoles, essentially cashing in on the nostalgia that the emulation sites had kept alive for the past decade or so.

All of which is to say this: Nintendo is not generally friendly to the idea of preserving Nintendo games via digitization that it does not control itself. Standing in contrast to that is the recent discovery of an otherwise essentially unknown Nintendo game from 30 years ago that, upon discovery, was swiftly digitized for posterity.

When UWC—a NES game that had been hidden from the world for 30 years—was uncovered last week, one of the first orders of business was getting the game off a cartridge and into the digital realm so that it could be properly preserved.  The new owner of the game, Stephan Reese, aka Archon 1981, said as much last week, and that job has now been completed thanks to the efforts of the Video Game History Foundation.

Saying “we were more than happy to lend our expertise and digitize the game for its owner”, the VGHF haven’t just ripped the game, but also went and finished it (as in, played to the end, not finished development), uploading gameplay footage to YouTube so we can all see some more of UWC in action.

Were it not for the exceptions that allowed the VGHF to have helped Reese out, the game could quite easily have been lost to history. Perhaps more importantly, if the general posture of companies like Nintendo led someone like Reese to believe the illegality of this wasn't even worth questioning, the world may never have seen this game at all. And, whatever you think of the importance of gaming to our culture, it cannot be argued that this would have been a cultural loss concerning the history of a popular entertainment medium.

These exceptions to copyright law are very, very important. This is just one of many examples as to why and yet another reminder that the pervasive culture of ownership and restriction carries with it a danger to literally everyone else who is living or will live. That danger is the potential to lose parts of our culture and history.

Filed Under: archives, copyright, copyright exceptions, digitization, lost content, lost games, nes, uwc, video games
Companies: nintendo

Nintendo Using Copyright To Erase Video Game History

from the wrong-lesson dept

Just recently, Tim Geigner wrote about how Nintendo's success with the relaunched Nintendo NES Classic showed how the company successfully competed with free, because there are plenty of NES emulators that can play ROMs for free. And yet, the NES Classic comes in a neat, easy to use package. And it's worth buying if only because it looks cool -- just like the original, but... tiny. I should know: I have one and it's great. And my wife can't stop playing Mario Bros. on it, though she keeps complaining about other games from her youth that are missing.

But, of course, this is Nintendo we're talking about, so it's been busy, busy, busy suing a bunch of ROM sites and scaring others into shutting down. The site EmuParadise shut down recently with the following as part of its farewell message after 18 years in operation:

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.

Motherboard has an excellent article pointing out that while Nintendo may be legally correct, the whole situation is ridiculous and offensive. And also counterproductive. Having emulators and game ROMs around is what has enabled many of these games to live on (there are even some rumors that Nintendo has used the ROMs itself). The Motherboard article has a number of different stories about how the whole thing is tragic, but one area where I think it's important culturally, is the historical aspect of it all:

"As a professor, I very frequently see students spinning their tires trying to solve problems that were already solved in 1985," Bennett Foddy, who teaches at New York University’s Game Center and is the developer of games like QWOP and Getting Over It, told me in an email. "And just as you would if you were teaching painting or music (or math), what you do as a teacher is you send them to the library to study the old classics, to see what they did right and wrong. That’s the only way we can make progress in the sciences, the humanities, or in the creative arts."

The problem is that even though NYU has a good collection of classic console hardware and games, it only covers a minuscule proportion of the total history of games. It doesn't include 8- and 16-bit computer games, which were distributed on magnetic media which has long since been corrupted. It doesn't include coin-operated games, which are prohibitively expensive for a library even today, and which are harder to access than ever now that arcades are practically gone. And, of course, most people who are getting into games don’t have access to NYU’s library at all.

"If I was teaching poetry, I could send a student to read nearly any poem written since the invention of the printing press, but in games my legal options limit me to, I would guess, less than 1 percent of the important games from history," Foddy said.

And while the article insists that Nintendo completely taking down these sites is perfectly within its purview as the copyright holder, I'm not convinced that's fully the case. They certainly have the right to get ROMs of games they hold the copyright on to be taken down, but killing the entire sites, even though they have plenty of non-Nintendo games feels like it's going too far.

And the problem here isn't necessarily Nintendo (though, it partially is). It's really a copyright problem. Any sane copyright policy would have allowed most of these games to enter the public domain by now. The games I played in 1984, which then spent decades completely abandoned, should be in the public domain for anyone to make them useful again. That's what's mostly happened informally, and as the Motherboard article notes, that's likely what has helped create this kind of interest in Nintendo's retro gaming platforms today:

Frank Cifaldi, the founder of the Video Game History Foundation, told me he believes that the popularity of these ROM sites is the only reason Nintendo is selling the Nintendo Super NES Classic Edition and old games on the Switch in the first place.

"I don't think the business I'm in exists without emulation," Cifaldi told me in a phone interview. "I think the video game community would have totally moved on if it wasn't for easy access to old games. I don't think the Nintendo's Virtual Console [the official portal to buy old Nintendo games on Wii U, Wii, and 3DS] would exist. It proved the market was there."

But rather than recognize that community and support them, Nintendo is suing and shutting them all down. And it's truly a shame. Basically, thanks to insanely long copyright, and oppressive copyright holders like Nintendo, we're seeing copyright being used to eat away at our history. I talked about this back when the Internet Archive started putting up historical software (including lots of games) that actually could be played in your browser. It's great that the Internet Archive is able to do this, but at this point, the Archive appears to be the only one able to do such work without the threat of a destructive copyright lawsuit.

I know that some will point out that Nintendo has this copyright and has every right to do what it wants, but that doesn't mean we shouldn't lament the actual way in which this is happening. Fans built the community around emulators and ROMs, and Nintendo abandoned them for decades. And now that the company feels it can cash in on the nostalgia that others helped build and cultivate... it's destroying those sites in the process. That seems like something copyright shouldn't enable.

Filed Under: competition, copyright, culture, games, nes, nes classic, roms
Companies: nintendo

You Can't Compete With Free Meets Its Ultimate Counterexample In The NES Classic

from the the-end dept

Of all the frustration-causing mantras of stupidity we here at Techdirt have combated over the years, none is quite as annoyingly wrong as: "You can't compete with free!" There are many reasons why it's so frustrating, but basic economics essentially shows that this is a loser's argument for an inability to compete. Given that there are many examples of competing with free, and the fact that the response to these counterfactuals is generally, "nuh uh, you doody head!" it's time that the myth of not being able to compete with free be put to rest. For years, we've highlighted folks pretty easily competing with free versions of their products, typically by either connecting with their fans in a way that causes them to want to buy the authentic version, or else competing by offering something free versions can't, be it convenience, authenticity, or included options for purchase. But what we've always needed to finally put this stupid mantra to rest is a completely pure counterexample showing that it is flatly, plainly, painfully not true.

Allow me to paint you a picture of the world as it exists today. You will recognize this world, because it is reality. It's a world in which for thirty years, video gaming has become a staple of our entertainment culture. Those of us that have reached middle age will tell you that gaming has essentially always been a part of our lives. We love it, and we particularly love going back to the olden days of gaming and re-enjoying the games we played in our youth. It's also a world in which emulators of early game systems are widely available, as are ROMs for the games we played long ago. We can get them literally any time we want, on everything from our personal computers, to our mobile devices, or on cheap computer systems that come fully stocked with these emulators and games. This is all insanely cheap or, more commonly, completely free.

And it's also a world in which Nintendo's NES Classic retro console was the best selling console for the month.

That’s the word from retail analyst NPD Group, which reports that “the NES Classic was June 2018's highest unit-selling hardware platform, while the PlayStation 4 led the market in dollar sales” for the period between June 3 and July 7.

The NES Classic, which costs $60 and emulates 30 games from Nintendo’s first home console, launched in November 2016 to mass shortages as Nintendo underestimated demand. Although the publisher announced that it was discontinuing the device, it later committed to bringing the NES Classic back to stores in 2018. Starting on June 29, the system returned. And then it beat up all the other consoles.

We talked about that shortage ourselves as an indication that the kind of convenience and retro-feel Nintendo could offer with its console competed well with the various free versions online. But even this writer read in shock that this NES Classic was outselling the current iteration of gaming consoles.

Let's put this plainly: if the "You can't compete with free!" mantra had even a shred of validity, then we could not live in this reality. It would be impossible. The NES Classic offering from Nintendo is actually in some ways inferior to the free options, given the smaller number of games it offers and its lack of portability and modability. But it offers something the free versions don't. It offers nostalgia in having a console. It offers having that NES Classic sitting in your entertainment center, serving as a conversation piece along with being a gaming console. It lets fans of Nintendo reward the company for serving them well. It offers legitimacy.

It competes with free and is apparently doing so in record numbers. Whenever someone shouts "You can't compete with free!" at you, it should henceforth be a simple matter of replying "But the NES Classic," and walking away. Because this is as good of an example of how dumb that mantra has always been as we could have hoped for.

Filed Under: compete, compete with free, copyright, free, nes, nes classic
Companies: nintendo