One of the most popular jokes on the internet right now is Nintendo sending out a “Cease and Desist” letter to anyone who even thinks the word “emulation” and “Nintendo” in the same sentence. People are even joking that this will be the title of the next generation of Pokemon Games.
Nintendo has always been the company that has had the strictest policies regarding emulation, sharing content on the internet, and really anything that they could make a case is copyright infringement. This is especially true when it comes to emulation of their games.
Before I go any farther, I want to make perfectly clear. Artists, developers, animators, etc. should be paid for their work. Theft of intellectual property is not a victimless crime. It’s easy to take swipes at big publicly traded companies or big developers and say “well they have enough money” but forget about the thousands of hours of work from regular people working regular jobs that it took to make that game possible, between the software development, storyboarding, marketing, even the guy that cleans the offices of those departments is depending on the success of the games being developed.
Despite this, I believe there is nothing morally wrong with emulation, to a certain extent. Regardless of legal precedent that has been set, I believe it’s far more important to look at the moral side and work backwards from there, letting the legal sort itself out.
Emulation is perfectly ok in my mind, especially when the developer has not made a good faith effort to make the game continually available.
A few years ago, I got really into retro gaming. I sunk A LOT of money into it. Because of the craze in the late 00’s early 2010’s started by channels like the Angry Video Game Nerd and ScrewAttack, retro game prices ballooned out of control. This was not do to any supply shortages, but an artificial scarcity caused by the games being labeled as “collectors items”
I loved collecting the games, but only because I loved playing them so much. I eventually sold everything off when my interest in the collecting side of things waned, but my love for playing these games never did.
My favorite system of all time is the Super Nintendo, it has literally hundreds of games sitting on my list of “games I want to finish before I die.” But, dear lord is it expensive to buy cartridges for it.
For starters, unless you want to buy a knockoff system that can play SNES cartridges, you’re looking at $80-$100 dollars for a console depending on where you live, unless you get lucky and can score at a garage sale or something, and the games can get absurdly expensive.
Yes there are a million fluff games you can find in the bargain bin at any local game store for under $5, but most of the classics that you’d really want to play are ballooning out of control. Some of the most popular games of all time like Super Metroid, Legend of Zelda: A Link to the Past, Final Fantasy III, etc. have gotten as high as $60+ for a loose cartridge.
As expensive as those are, there are a million alternative ways to play those games. Heck for like $4 a month you can get access to a good chunk of them through Switch Online, so maybe don’t emulate those.
But where the SNES gets out of control is the hidden gems that weren’t immediate “classics” that Nintendo has repackaged another times.
Example: (Link to article)
Here’s the thing. Let’s say you just really wanted to play Hagane, let’s even say you own a Super Nintendo so you go looking for a cartridge. One look at that price point and you’d immediately say “No way in hell am I paying $600 for 25 year old game, I could buy a PS5 for that!” So you download a SNES emulator and a rom for Hagane and playing it.
Are you stealing someone’s intellectual property? I’m sure you could make that case in a court of law if you really tried, but let’s think about this for a second.
This game was developed by a studio named Hudson Soft, a company that has been defunct for 8 years (see wikipedia page). There are zero, and I mean zero “legal” methods of playing this game besides obtaining a cartridge.
Let’s say you buy a cartridge, where does that money go?
The developers? No.
Some random dude on eBay artificially jacking up the price for it as a “collectors item?” Most likely.
So who exactly are you stealing from? Especially if you’re not a collector, we all know some collector will be willing to pay that price, eBay dude is gonna get his money. So now what?
In this case the only feasible legal option is to not play the game, at least for an overwhelming majority of the population who don’t have the money to drop $600 on a retro game cartridge. So is this game supposed to just never be played again?
I can’t prove this, but I’m willing to bet that the developers, the individual people who made the game, would much rather see you “pirate” the game through emulation than let their hard work die on the scrap heap of history. Emulation, in many cases is a way for games that wouldn’t otherwise get a chance to have a legacy once they’re no longer in production.
To be fair, Hagane is clearly a relatively unknown game, how does this apply to bigger, more well known games? Like, let’s say, the DS and GBA Pokémon games.
Still a relatively simple answer. At this point it’s pretty clear that Nintendo has made their money off of those games and has made no good faith effort to provide an opportunity to play them (like they have with Gens 1 & 2).
The same principle applies here. Essentially, in my view (again morality not legality) when a developer makes the choice to no longer provide a sanctioned avenue to play these games, or actively discontinues a product and no longer sells it directly to consumers or retailers, that game should be viewed as a sort of “public domain” at that point.
I would even go as far as to argue that by not making these games available to the public, the developers are actively encouraging emulation. Fans of older game content want to be able to play those games, that demand is incredibly high, and when developers don’t provide sanctioned avenues to do so people are going to turn to emulation.
If virtual console sales and demand for things like the NES, SNES, PS1, GENESIS classic consoles are any indication, if you provide easily accessible ways for gamers to access this content, they will, for the most part, stay within those boundaries.
Quite honestly, Nintendo, you’re reaping what you’ve sowed over the past 30 years by creating artificial scarcity on your products, not encouraging western localizations of top 3rd party games, delaying the international release of games, and putting fan favorites into the vault with no indication that they’ll ever see the light of day again. You’ve provided gamers with little alternative, and they’re taking the most accessible path to experiencing these old games.
So, back to the original question about emulation. To put it simply, as long as you’re making a good faith effort to find the game through proper channels, it’s my opinion that you are perfectly in the right to pursue emulation as a method of playing games.