Court Orders Injunction Against RomUniverse To Permanently Shut Down, Destroy Nintendo ROMs

from the the-end dept

What a ride for RomUniverse and its owner, Matthew Storman. By way of background, 2019 saw Nintendo start an all out assault on ROM sites, websites where users could download ROMs of old Nintendo games to play on emulators. When the company set its eyes on RomUniverse, Storman attempted to crowdfund a legal defense, which failed, only to represent himself in court and make a lame argument that somehow first sale doctrine allowed him to commit mass copyright infringement. When that all failed miserably and RomUniverse lost in court, Storman was ordered to pay $2.1 million in damages in monthly $50 installments. He failed to make even those payments.

And so now this all comes to an unceremonious end, with Nintendo asking the court for a permanent injunction on RomUniverse and that injunction being granted.

A California court has ordered RomUniverse owner Matthew Storman to keep the website permanently offline and to destroy all illegal Nintendo ROMs.

As reported by TorrentFreak, he has until August 17 to comply with the order. The publisher had filed a request for a permanent injunction in May to keep the website offline, but the court at the time denied it. Nintendo however asked that the decision be reconsidered in June as Storman didn't specifically dispute that the website would be revived.

To be clear, everyone in this story is somewhere on the spectrum of dumb. Storman's defenses were laughable and the fight he attempted to put up in court pitiful. When Nintendo specifically brought evidence that Storman had been directly involved in some of the infringing content either appearing on his site, or with him pushing rewards for uploaders to induce them, his argument of first sale doctrine was incredibly weak.

Nintendo, for its part, has buried what mostly amounts to a current non-threat. Nintendo's sales of older consoles and older games, including on new consoles, has been wildly successful. It buried this site not because it acted as some major threat to Nintendo, but rather because it could. That is very much the Nintendo way, as is the total lack of acknowledgement as to how ROM sites like this, whatever you might want to say about their legality, certainly served for decades to keep interest in classic Nintendo games alive.

But instead, Nintendo has gone through this entire process, spending whatever money it had to and cannot extract from Storman, just so RomUniverse is no longer online. If that's how the company wants to spend its money, mission accomplished, I suppose.

Filed Under: classic video games, copyright, matthew storman, permanent injunction, rom sites, roms, video games
Companies: nintendo, romuniverse

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

Bold: Matthew Storman, Sans Lawyer, Counter Sues Nintendo For False Allegation Of Copyright Infringement

from the rom-com dept

The ongoing fight between Nintendo and RomUniverse continues! While most of the targets of Nintendo's ire in its war on ROM sites folded to the company fairly quickly, RomUniverse's Matthew Storman boldly chose to fight in court. That led to Nintendo suing the site for copyright infringement. Storman attempted to crowdsource his legal defense, failed at that, and has been fighting this battle without legal representation. That likely explains the site's lame argument that somehow first sale doctrine makes the Nintendo ROMs on its site non-infringing, as though owners of game cartridges could copy the content to the site and resell or give them away there. The court saw through Storman's argument and allowed the trial to move forward.

Which brings us to the present, in which Storman has not only responded to the lawsuit by claiming, again, that first sale doctrine protects him, but has now added a claim that he had no idea infringing files were on the site at all, and has demanded that Nintendo pay him for false claims of infringement. This reply was supposed to be due to the court in January, but the judge delayed that due date... so that Storman could attend a Federal Pro Se Clinic, where he got advice on how to represent himself.

After the brief delay, Storman filed his answer to the complaint at the California federal court. Still without an attorney, he maintains his innocence and denies all allegations of piracy and infringement.

The site operator states that he is unaware of any infringing content that was uploaded to the website. And if there is any, these uploads may be legally protected by the first sale doctrine.

This is not going to work. Claiming ignorance as to the infringing material is fairly laughable. The first sale doctrine argument is a likely loser as well. And the fact that RomUniverse sold memberships in order to get around download limits makes it so as Storman was profiting off of the infringing material. That Nintendo didn't request takedowns of infringing ROMs, giving Storman a chance to comply and stay on the right side of the law, is annoying, but it doesn't suddenly make his other legal arguments any more valid.

Storman goes on to claim, perhaps not entirely without merit, that RomUniverse is actually good for Nintendo.

In an attempt to turn the tables, Storman argues that Nintendo profited from his site. RomUniverse.com and the associated NDSUniverse.com, serve as free advertising vehicles for the gaming company which generated profit from it, for which the site owner never received a penny.

“Copies on the Website originally from Nintendo when seen by users is a positive advertising asset to Nintendo. It is part of an implied contract with Nintendo over the last 10 years. This advertising asset can be calculated and measured by Nintendo in cooperation with Defendant,” Storman adds.

It's an argument we've made ourselves and it probably has some legs. The problem here is that there is no implied contract and Nintendo is well within its rights to sue for copyright infringement, even if that infringement has benefits for Nintendo.

The real bonkers part of this, however, is Storman's counterclaim for damages from Nintendo.

Instead of compensating Nintendo, Storman wants the gaming company to pay up instead. He demands $150,000 per copyrighted work for the false allegations of infringement, as well as $2,000,000 for each false counterfeiting claim.

On top of that, Storman also wants Nintendo to “permanently approve all copying, distributing, selling, performing, displaying, playing, or otherwise using any copy of an [Nintendo] copyrighted work, or any derivative thereof.”

I don't even know where to begin. Storman's play isn't going to work. Whatever lessons he learned in the Pro Forma classes, his actions aren't a good advertisement for those classes. RomUniverse, whatever its benefits to Nintendo, pretty clearly was a purveyor of infringing material. The site made money off of it. Nintendo, whatever you think of the company, is well within its rights here.

It'd be best if Storman would realize he's digging his hole deeper and cut his losses.

Filed Under: copyright, first sale doctrine, matthew storman, pro se, roms
Companies: nintendo, romuniverse

Court Sides With Nintendo Over RomUniverse In Atttempt To Dismiss The Former's Lawsuit

from the ninten-did dept

As most of you will know, a year or so ago saw Nintendo suddenly flip a litigious switch and begin going after all the ROM sites that had existed for a decade or more. The timing suggests that the company may have made this move out of a misguided attempt to support its release of several retro consoles that contained many of the games that the public could also simply get for free on these ROM sites. I say misguided because it's not as though Nintendo's aggression suddenly made free online ROMs unavailable. They are all still very much there through various means, but Nintendo's retro consoles sold like gangbusters anyway, because half the appeal in the product is the ease of use and the other half is in having the cool looking retro console next to the television.

Most sites simply folded up and caved. RomUniverse, run by Matthew Storman, was one of the few that attempted to fight back. Despite the site making not just Nintendo Roms available, but also all kinds of other copyrighted media, Storman tried to crowdfund his legal defense before pivoting to representing himself in court. We're still in the early stages of the litigation. Storman sought a dismissal of the case by arguing that First Sale doctrine meant Nintendo had no claim to the Roms being offered on his site coupled with claiming to be a neutral service provider protected by DMCA safe harbors. We said at the time that the move was unlikely to work.

And we were right. The court has now ruled for Nintendo against the motion to dismiss, stating that at best the claims that Storman makes are not properly made at this stage of the litigation, along with some comments that the claims probably aren't going to get Storman where he wants to go anyway.

After considering the arguments from both sides, US District Court Judge Consuelo B. Marshall has sided with Nintendo. In a ruling released yesterday, she denies the various arguments presented by Storman. RomUniverse’s operator wanted the case dismissed based on failure to state a claim, lack of jurisdiction, improper venue, insufficient service of process, and failure to join a party. None of these arguments convinced the court.

Storman, for example, argued that Nintendo is not the owner of previously purchased games because consumers have the right to sell, destroy, or give them away. The Judge didn’t address this in detail but concluded that Nintendo’s copyright registrations are sufficient at this stage.

On the DMCA safe harbor claims specifically, the court acknowledges that it cannot determine whether RomUniverse meets the criteria for those provisions at this stage of the trial, at which no evidence has been presented. Nintendo's entire case here is that Storman's site doesn't act as a third party service provider. Asking the court to find otherwise when Nintendo hasn't been allowed to present evidence yet would make no sense. And, as the court goes on to note, Nintendo sued for trademark infringement and unfair competition claims as well, and DMCA safe harbors don't protect from those claims.

Therefore, the Court would be required to look beyond the pleadings to determine whether Defendant is a service provider who satisfies the statutory requirements for protection pursuant to the DMCA's safe harbors, which is improper on a Rule 12(b)(6) motion to dismiss.

As to Storman's claim that First Sale doctrine means that Nintendo failed to join the actual owners of the games that are the basis of the ROMs on his site, the court points out that's not how any of this works at this stage. Nintendo has alleged that Storman's site is liable and arguing that Nintendo also has to sue everyone else isn't very convincing.

Defendant argues Plaintiff has "failed to join the true and essential owners of copies known only to Plaintiff, or unknown." As discussed supra, Plaintiff sufficiently alleges ownership and "the owner of copyright ...has the exclusive rights to ...reproduce the copyrighted work in copies [and] to prepare derivative works based upon the copyrighted work." 17 U.S.C. § 106(1)-(2). Therefore, Defendant fails to demonstrate there are persons subject to service of process which, in their absence, would prevent the Court from providing complete relief among the existing parties or persons claiming an interest in the subject of this action. See Fed. R. Civ. Proc. 19. Accordingly, the Court denies Defendant's motion to dismiss based on failure to join an indispensable party pursuant to Rule ~12)~b)~~)•

And so the motion to dismiss is denied. We've made the point several times now that Nintendo has better ways to deal with ROM sites than this sort of litigation. That is still true. But none of that changes the fact that Storman and RomUniverse have a mountain to climb if it wants to successfully defend itself from this lawsuit.

Filed Under: copyright, dmca, first sale, liability, matthew stroman, roms
Companies: nintendo, romuniverse

Nintendo Responds To RomUniverse's Lame Argument That First Sale Doctrine Makes The Site Non-Infringing

from the that's-not-gonna-work dept

You will recall that Nintendo, as part of its sweeping new war on ROM sites initiated a year or so ago, went particularly hard at RomUniverse and its site operator, Matthew Storman. Differentiating RomUniverse from other ROM sites is some combination of the fact that it's run out of California as opposed to overseas, that the site is also a place to go get lots of other media that sure looks to be infringing on copyright, and Storman's verbose attitude in making public comments that don't paint him or his site in the best light. At the onset, as part of an attempt to crowdfund its legal battle with Nintendo, RomUniverse trotted out the claim that it was offering ROMs in an attempt to preserve video gaming history. It wasn't a particularly believable argument given the rest of the site's behavior and RomUniverse quickly opted for other legal arguments in court.

Storman appears to be defending himself in the matter and attempted to have the case dismissed on two grounds. The first is that Safe Harbor protections extend to RomUniverse, which Storman claims is simply a service provider and not participating or reaping commercial benefit from infringing material. Storman claims that Nintendo has acknowledged RomUniverse as a service provider by sending DMCA takedown requests to the admin for the site, at least some of which have been complied with. That, unfortunately, is not really how any of this works, as Nintendo details in its own response to Storman's motion.

In 2009, Mr. Storman emailed members of his website that he would be adding new content including ROMs for various Nintendo game systems. In 2018, when Nintendo was successfully enforcing its intellectual property rights against other pirates, Mr. Storman bragged that he would continue to offer copies of Nintendo’s games.

Mr. Storman directly profits from this infringing activity by allowing users to sign up for “Premium Memberships.” While non-members are limited to one free download through the website, premium members pay $30 per year to Mr. Storman to download an unlimited number of pirated games, and at higher speeds than non-members.

That seems to be evidence of Storman and the site participating in the infringing activity and somewhat directly profiting from it. Whatever the DMCA safe harbors protect, that ain't it. Nintendo goes on to argue that this sort of affirmative defense is not one to be made in preliminary motions, either, making one wonder if it isn't time for Storman to get himself some actual professional legal counsel.

Storman's latter claim doesn't assuage that concern. In his petition for a dismissal, Storman claims that Nintendo actually has no standing to make the infringement claim, arguing that the uploads of the game content to the site were done by those that had legally purchased copies of these games. As such, Storman claims that First Sale Doctrine makes that game code the property of the purchaser of the game, who can resell it at will without it being infringing. As Nintendo again claims in its response, nah, dawg.

The first sale doctrine does not permit mass distribution of copyrighted works, copying of the copyrighted works or distribution of those copies, or the creation and sale of derivative works based on Nintendo’s copyrighted video games. See 17 U.S.C. § 109(a) (“the owner of a particular copy [of a copyrighted work]. . . lawfully made . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.”) (emphasis added). Indeed, Mr. Storman’s actions fall well outside of the first sale doctrine. The first sale doctrine only allows an owner of a lawful copy of the copyrighted work to dispose of that individual copy.

We have argued in the past that Nintendo, and other gaming companies, should really find better routes for mitigating or even making good use of the effects of piracy...but none of that makes the company's rebuttal to Storman's claims any less valid and correct. These are claims made at the improper time, that don't seem to comport with the site's behavior, and that represent a misreading of the law. That isn't going to be good for Storman's legal outcome prospects.

Again, to reiterate from our last post on this matter, it's time for Storman to go into damage control mode. And for the love of god, get some professional legal assistance.

Filed Under: copyright, dmca, dmca safe harbors, first sale, matthew storman, roms
Companies: nintendo, romuniverse

RomUniverse To Attempt To Crowdfund Legal Defense, Which Isn't Going Well At All

from the lie-with-infringers... dept

We recently discussed Nintendo's lawsuit against RomUniverse, part of a longstanding war on ROM sites that seems less than absolutely necessary given just how much cash the company is raking in from its retro consoles and titles. Several commenters pointed out that RomUniverse, while proclaiming that it's a source for those who long ago purchased Nintendo games to preserve those purchases, also engages in plenty of other less than ethical behaviors. This includes offering up books and movies alongside the ROMs, for which it can't really make the same claims. In other words, while Nintendo itself might not be the best paladin to slay RomUniverse, it's not as though the site is on the side of the angels.

Given all of that, you would expect the operator of RomUniverse, Matthew Storman, to try to limit the damage here. That certainly doesn't seem to be Storman's plan, however, as he has both publicly stated he will fight the suit and is attempting to crowdfund his legal expenses.

The operator has added a donation option to the RomUniverse homepage and also launched a crowdfunding campaign on GoFundMe, setting a goal of $100,000 to assist with the defense.

“RomUniverse.com was founded in 2009 under the notion that users like you should have easy access to the content that you purchased and the ability to relive those childhood moments. It is because of this, that I am asking for your help,” Storman writes.  “Now I know what you’re thinking, this one person is going to take on one of the largest console/gaming manufacturers in the world? And the short answer is YES,” he notes.

To be clear, he's probably wrong. There is a multitude of risk factors here. For starters, ROM sites have always operated on the wrong side of copyright law. Even if we would advise companies like Nintendo that they should leave them alone, they certainly don't have to. RomUniverse can put up as many banners as they like stating that downloads should only occur if the user has purchased an actual physical cartridge previously, but that doesn't suddenly make offering the copyrighted game content not copyright infringement.

Add to that the possibility that the owners of the other types of media RomUniverse makes available might see all of this going on and decide to get their own piece of the lawsuit pie and this huge Nintendo lawsuit could suddenly morph into a multi-plaintiff apocalypse for RomUniverse. That's all the more so possible given Storman's public statements.

And, finally, if RomUniverse is really relying on crowdfunding to power its legal defense, it seems that nobody bothered to show up to its fundraiser.

On the GoFundMe page, Storman notes that he’s not “greedy” or a scammer. He merely wants to defend his rights and those of others in this “unknown” landscape. In the meantime, the site remains online.

While some people may have donated to the site directly, thus far, the crowdfunding campaign on GoFundMe hasn’t gained any traction. After two days, the donation counter is still at $0.

For perhaps other reasons, the page for the GoFundMe for RomUniverse now returns a "Page Not Found" splash page. RomUniverse's site now is soliciting direct donations instead.

There are enough clouds on the horizon here that Storman should probably go into damage control mode.

Filed Under: copyright, crowdfunding, matthew storman, roms, video games
Companies: nintendo, romuniverse

Nintendo Gets Huge Settlement Against ROM Site Probably Just To Scare Other ROM Sites

from the make-believe dept

A couple of years ago, we first discussed how Nintendo, long-time maximalists on intellectual property concerns, decided to open up a new front against ROM sites. What at first looked like it might be something of a surgical strike mission-creeped this past summer into a full war on ROM sites generally, with Nintendo using a buckshot lawsuit approach. Many sites simply voluntarily shut down, sweeping away decades of video game history to be once again locked up by Nintendo, while others stared down the company's legal guns. All this, of course, as Nintendo was showing how silly this all is given the insane performance of its Nintendo retro consoles.

Well, it looks like the output of this effort is going to be Nintendo playing games with at least one of these suits, getting a settlement that nobody thinks it's actually going to pursue in full just to have a multi-million dollar number to threaten other sites with. The husband and wife operators of LoveROMS.com have agreed to a $12 million settlement they can't pay, and likely won't have to, to have Nintendo call off its dogs.

Today we can report that both sides have indeed reached a deal. They agreed to a consent judgment and a permanent injunction that will resolve all outstanding disputes. Paperwork obtained by TorrentFreak shows that Mathias and his wife admit that their involvement with the websites constituted direct and indirect copyright and trademark infringement, which caused Nintendo irreparable injury.

However, on paper, the married couple won’t be getting off cheaply. On the contrary, they actually agreed to a judgment that exceeds $12 million.

“Plaintiff is hereby awarded judgment against all Defendants, jointly and severally, in the amount of $12,230,000,” the proposed language reads.

To be clear, nobody is saying the settlement is invalid or anything like that. In this case, the couple has admitted to infringing Nintendo's copyright rights, has agreed to hand over any emulators and ROMs it has, and has agreed to the amount in question. On paper at least. But that agreement likely comes with the understanding that after this is all inked with signatures and the blessing of the court, a separate deal will be worked out for the payment of an entirely different amount.

We can only speculate but it’s possible that Nintendo negotiated such a high number, on paper, to act as a deterrent for other site operators. In practice, the defendants could end up paying much less.

It wouldn’t be the first time that a judgment in court is more than what the parties agreed to privately. This happened before in the MPAA’s lawsuit against Hotfile, where a $80 million judgment in court translated to $4 million behind the scenes settlement.

In other words, Nintendo pushed for a settlement amount it wouldn't have gotten at trial not as an act of justice, but to use as a bludgeon against other ROM sites. It will be used either as a way to force voluntary shutdown of those sites, or as a template for settlement demands in the future. Either way, it makes a game out of the legal system, rather than trying to get to a just result.

And it has to be pointed out again that this is all happening as Nintendo competes with these sites perfectly well with its very cool retro consoles. Because control is what matters.

Filed Under: copyright, emulators, roms, video games
Companies: nintendo

And Now Comes The Pushback As One ROMs Site Is Challenging Nintendo's Takedown Of ROM Sites

from the rom-com dept

Over the past few weeks, we've discussed Nintendo's tortured relationship with fans of its retro offerings. As a starting point, after years of pretty much ignoring the demand for retro games offered for earlier versions of its consoles, Nintendo finally produced an offering for retro consoles loaded with some but not all of the games from the eight and sixteen bit eras. Before this official offering, Nintendo's ignoring the market had for years produced a wide range of websites that allowed gamers to engage in their nostalgia by playing old games no longer available via emulators and ROMs of those games. Nintendo's retro consoles successfully competed with these free games by producing a great product. Despite that success, Nintendo has since gone on a campaign against some of the highest profile ROM sites out there, suing some and allowing that lawsuit to serve as enough of a threat to simply get other sites to voluntarily take Nintendo ROMs down. These sites, which had essentially served to compile and record video game history that Nintendo refused to do itself, suddenly began disappearing.

There was always going to be some kind of a backlash to this. And, now, one site is signaling that its ready to fight Nintendo, going so far as to taunt the company with a forthcoming offering for retro game ROMs.

While these decisions are understandable, not everyone is equally impressed by the show of legal force. The niche pirate site ‘Good Old Downloads,’ for example, sees the ROMs controversy as a good opportunity to expand its catalog. With retro games.

The new section is “coming soon” according to the site’s homepage. While no further details are listed, it is now linked to a Tweet which makes it rather clear what motivated ‘Good Old Downloads’ to add retro-titles. The tweet embeds a video showing recent press coverage of the Nintendo lawsuit and the related shutdowns. Towards the end, it shows a clip from “Age of Ultron” where Thanos’ face is replaced by the site’s logo.

“Fine, I’ll do it myself,” he says.

Now, let's be clear about a couple of things. First, Good Old Downloads is absolutely a site for pirating video games. It's unambiguous in that. Nothing in this post is to suggest that what the site is doing is legal, or even morally okay. It isn't. What should be clear is that the site's move comes as the we're still waiting for a settlement between Nintendo and the ROMs site and in the immediate wake of other sites taking their own ROMs down. In other words, this is the first but almost certainly not the last site to dig its heels in and challenge Nintendo's takedown efforts.

Which is ultimately the point of this post: Nintendo's focus on putting a genie back in the bottle when that will never happen is both futile and pointless. Pointless because Nintendo is already successfully competing with these ROM sites. And futile because these files are still available roughly everywhere on the internet.

That said, ROMs haven’t been particularly hard to find through traditional pirate sources. For example, shortly after Nintendo announced its lawsuit, one Demonoid user uploaded torrents featuring thousands of ROMs to the site, including tiles belonging to the Japanese game giant.

This isn't even whac-a-mole. It's more like trying to fill up the ocean with all the grains of sand on the beach. There's a great deal of work to be done to keep you busy, but you'll never achieve your goal. So why bother?

Filed Under: copyright, emulators, enforcement, roms, video games
Companies: good old downloads, 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