Nintendo is trying to crack down on people using virtually emulated retro games distributed online in a morally gray area of copyright law.

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Nintendo’s war on Retro games.

Connor James Ibbetson, Editor-at-large
@connoribbetson

The Japanese game giant is cracking down on people using emulated games.

Last week, Nintendo, makers of the beloved Super Mario and legend of Zelda franchises brought a multi million dollar lawsuit against two well known emulation websites LoveRETRO and LoveROMs.

The websites were accused of “conducting their online piracy business in willful disregard of Nintendo’s rights… and trafficking in pirated copies and making unauthorised use of Nintendo’s video games, other copyrighted works, and registered trademarks.”

Nintendo is asking for $2 million for illicit use of their trademark, plus $150,000 for each Nintendo game the websites have hosted.

But what is emulation? And is it piracy?

A video game emulator is a piece of software designed to mimic and replicate a video game consoles hardware and software in order to run that consoles games, usually on a PC.

This has many benefits, such as allowing people to play games that are no longer available on the market, or play on virtual versions of rare and expensive consoles.

The Nintendo Entertainment System, released in 1983, is one of the consoles popularly emulated.

The Nintendo Entertainment System, released in 1983, is one of the consoles popularly emulated.

Emulators are also a tool used by people developing homemade games for these older consoles, these are often called ‘home-brew’ games.

Emulation is often cited as being a source of piracy by video game companies, and there have been many large lawsuits in the United States between the giants like Sega and Sony, and those producing emulation software.

These lawsuits had the opposite effect than intended however, with the video game companies losing. Emulation of console and game software is completely legal in the US, as long as the user of the software owns the hardware in real life.

Some users have developed functional emulators, such as for the GameBoy, that run without the copyrighted code to avoid this. However, the copying distribution of the copyright game files is another matter, and remains very illegal under copyright law.

Emulators have become so popular that many games companies, most notably Nintendo, include them as part of their modern consoles. Nintendo’s emulator is known as the virtual console, and allows players to pay for digital copies of older games – however not all titles are available on this service.

Nintendo took it one step further, and actually developed new versions of its classic Nintendo Entertainment System (1983) and the Super Nintendo Entertainment System (1990) that have been sell out hits. However these new devices only run a small selection of their games.

The NES Classic is a release of the Nintendo Entertainment System, released in 1983, and can play just 30 games of the 714 officially licensed Nintendo games for the original. Image: nintendo.com/nes-classic/

The NES Classic is a release of the Nintendo Entertainment System, released in 1983, and can play just 30 games of the 714 officially licensed Nintendo games for the original. Image: nintendo.com/nes-classic/

Is Nintendo in the wrong?

There are many who would say that emulation is a moral issue, but under the law, Nintendo is well within its rights to sue these websites distributing their intellectual property – but should they?

With the release of these refreshed retro consoles by Nintendo, emulation is even more of a competitor in the retro gaming market.

In PC Worlds article, Hayden Dingman argues that emulation of older software is akin to ensuring its survival and proper archival. Dingman argues that although many companies are remaking and remastering their games, many may be lost to history:

“Remasters cost money though, and are (understandably) meant to make money. Thus we get the one-percent—the games so notorious or so beloved they’ll sell a second, a third, or even a fourth time.”

Dingman goes on to liken remasters to those ‘Greatest hits of 80’s’ compilation albums that all contain the same 100 odd songs.

Wrapping Up.

Nintendo almost certainly won’t see the money they are after in this lawsuit, and even if they did, its a drop in the ocean for the company.

To put that in perspective, according to Nintendo Gaming Magazine, Nintendo could make a $257 million every year until 2052 before it went bankrupt. If you count real estate in that, the company could go until 2075.

Nintendo does benefit from the emulation community. Enthusiasts playing emulated games will still purchase newer Nintendo consoles, games and merchandise. While Nintendo is completely within the law to sue these distributors, it feels like more of an attack on their fans.

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