By Justin Sanders

For adults of a certain age – whose formative years included uncountable hours of mashing primitive controllers in pursuit of 8- and 16-bit pixelated glory – there are few things as nostalgic as Nintendo and Super NES games. So, it’s not surprising that on the internet – where nothing ever dies – there is a thriving underground market for digital replications of those ‘80s- and ‘90s-era relics.

Known as “ROMS,” these pirated game files can be downloaded and played through emulator programs, which allow modern computers to mimic the video game consoles of decades past. There are many websites that host emulators and ROM games for download. Some are run by hobbyists or video game historians who provide the old and often obscure titles altruistically. Others are run by people looking to make money off of the enterprise. In either case, it is illegal to provide free copies of copyrighted materials without the owner’s permission, and recently, Nintendo has been pushing back against it. In July, the company filed a lawsuit against the operator of two of the most popular console ROM sites, and

“[The offending sites] know or should know that Nintendo continues to produce, market, and sell many of the video games that appear on the LoveROMs and LoveRETRO websites,” the company wrote in a preliminary statement suing the sites’ owner, Jacob Mathias. “Yet Defendants continue willfully to infringe Nintendo’s highly valuable intellectual property rights and, in the process, to enrich themselves through, among other things, donation requests and the sale of advertising space on the LoveROMs and LoveRETRO websites.” 

Piracy in the video game industry, as in film and television, is extremely harmful. According to data firm Tru Optik, 2.5 billion pirated games were downloaded in 2014 alone, equating to approximately $74 billion in lost revenue. For years, the revenue from vintage video games wasn’t really affected by that annual piracy carnage – not because vintage video games weren’t being illegally exchanged on ROM sites and elsewhere, but because their owners, like Nintendo, weren’t manufacturing or selling them anymore (that’s what made them vintage).

In recent years, however, a retro-revival has hit the marketplace, and sales of classic products from Nintendo, and other game makers, are once again big business. Nintendo re-released its original NES system during the holiday season of 2016, and the console has since sold more than 3.6 million units. It continues to be available for purchase through the company’s website and elsewhere, along with 30 classic games ranging from Super Mario Bros. to Final Fantasy

Nintendo also offers dozens of vintage titles through its Switch online subscription service – which is all to say that, clearly, the company is once again making good money off their classic products. So, it isn’t shocking in the slightest that Nintendo has taken legal action against websites that are pirating these items, and it is perfectly within the company’s rights to protect their intellectual property. As attorney Michael Lee put it in an August blog post, “Illicit websites cannot just let people play them without authorization from the copyright owner, Nintendo. This is classic infringement, there is no defense to this, at all.”

What is shocking, however, is the blowback from the video game community over this “affront” to their illegal transactions.

“Nintendo’s ridiculous war on ROMs threatens gaming history,” howled PCWorld, when the lawsuit emerged over the summer. “If Nintendo’s lawsuits keep coming, there may be no future for an online community striving to provide a free way to enjoy cherished games of the past,” added Wired, who went on to provide sad quotes from MasJ, the founder of a popular ROM host site called EmuParadise.

“Through the years I’ve worked tirelessly with the rest of the EmuParadise team to ensure that everyone could get their fix of retro gaming,” MasJ told the publication, a single tear almost definitely rolling down his quivering cheek. “We’ve received thousands of emails from people telling us how happy they’ve been to rediscover and even share their childhood with the next generations in their families.”

With all due respect to MasJ and the rest of the ROM pirates – CRY US A RIVER. Yes, there are thousands of classic games – for many different systems – that are no longer available for purchase and that should be archived for posterity. But, archiving historical materials is not the same thing as duplicating them at will without permission from the owner. The Metropolitan Museum of Art preserves art history by protecting and displaying original worksby artists – it doesn’t mass-produce those works and pass them out on the street.

But, “there’s no reason for it,” complained PCWorld. “Nintendo gets almost nothing out of these sites shutting down, and what’s potentially lost is priceless.” 

In fact, that’s patently untrue. “The second-most popular site when searching for ‘Nintendo Entertainment System ROMs’ states that its most popular ROM, Super Mario Bros., has been downloaded 766,525 times,” reported Observer in its recent piece about video game piracy. That’s a figure pulled from oneNintendo title on onesite – where it had been pirated more than 750,000 times. As we’ve already discussed, Nintendo has officially brought back Super Mario Bros.and has the game for sale on its website. So, yeah – the company is getting plenty out of these old games and it has a lot to lose when people are choosing to steal that title hundreds of thousands of times rather than pay for it.

Video game pirates have convinced themselves that their actions don’t harm copyright owners and are even good and necessary for video game preservation. They behave as though they have a rightto do this. In a sense, that’s good news for Nintendo – it means their products resonate so deeply that fans feel ownership over them, and feel protective of them. But, there’s a difference between passionate fandom and entitlement. Protecting a historic artifact is one thing. Mass producing and distributing it online is quite another.

“Yell fair use all you want but this is not fair use,” concluded Michael Lee in his post about ROM piracy. “It is just copying someone else’s work.”

We couldn’t agree more.