Despite their reputation as a family friendly gaming company that prioritizes fun over commercializing, Nintendo, their litigation practices are notoriously coldblooded when it comes to protecting their multitude of intellectual properties. This is in contrast to other gaming companies who’ve embraced the expansion of their fan communities and the profits that come with it, such as Sega inviting fan developers to make Sonic Mania, a unanimously well received main series instalment of the series. Even when their hands are tied and they have to shut down fan games, companies like Capcom showed their care and appreciation by politely asking the developers behind a Resident Evil fan game that was in direct competition with one of their own games to shut their project down, and even invited them over to Japan to have a pre release experience with the game they were in competing with. But Nintendo seems to view any use or inspiration of their intellectual properties to be direct threats to be taken down.
A little over a year ago, Nintendo took down two ROM sites and sued their owners for millions of dollars, which resulted in hundreds to thousands of games that are no longer available in the market for sale to be completely lost. Of course, it’s easy to see that Nintendo has every right to do so to protect their IP. ROM sites are distributing Nintendo’s games without compensation or permission, which is obviously not legal with no ambiguity but what is legally right is not always morally right. The situation with ROM sites and similar operations gets complicated as they are as much about preservation as it is about piracy.
Companies can’t be trusted to preserve their work or make them easily available. The BBC has lost nearly a hundred episodes of their hit TV series, Dr Who and movies like Star Wars have been mutilated with CG in later released special editions, with the original versions made completely unavailable. In the case of Star Wars, fans have laboriously restored these movies to their original state and sometimes even improving on it. Games are in a similar state. Always moving onto newer and more profitable systems, game companies don’t care about the games they leave behind. Modders fix up older games to higher fidelity and emulators allow fans to play any game they want on whichever consoles you wish. These are herculean tasks, oftentimes even more difficult than making that game they wish to emulate or mod, but they do so not out of any desire to pirate games for free but because they care about them and wish to see them preserved. A desire clearly not shared by the developers.
By taking down ROM sites, companies like Nintendo are erasing gaming history and fail to provide an adequate substitute. Their latest halfhearted attempt to show their care was the Nintendo Switch Online subscription service that provided just over 60 classic NES and SNES titles to enjoy. This is almost humiliating compared to the nearly 1,500 games released on those consoles. Admittedly, not all of them are hits but every one of those games is someone’s favourite and by letting them be lost to time, companies like Nintendo are preventing them from being someone else’s favourite too. Nintendo isn’t losing anything by allowing the free distribution of games they weren’t distributing in the first place.
Not just obscure games but games like Goldeneye 007 for N64, which set the standard for multiplayer FPS and was even the third best selling game on the console but will never be remade or re-released thanks to the legal deadlock between Nintendo, EA and the James Bond License. One of gaming history’s most important games would be lost to time if not for emulation, the only way for anyone to play it anymore. Similar reasons have prevented a whole host of Japanese or foreign games from ever being translated. The only way to play such games for the average person would be to download an English patched ROM.
In the digital age, one would think it impossible for data to be permanently lost anymore but soon we won’t remember what we’ve lost. Spanning over eight console generations, there are hundreds of thousands of games available to legally play right now, but this is just a fraction of the number of games that no longer exist, or as fans call it, abandonware. Continuing to play on those consoles isn’t a viable solution either, as hardware deteriorates overtime and has become redundant many times over, making it completely incompatible with most entertainment systems. Emulation is not just an option to keep games alive, soon; it will literally be the only way.