For 18 years, EmuParadise and sites like it have provided vibrant game resources for console emulators and associated ROM files. Legally speaking, these sites have always existed in a deep gray area. Emulators are perfectly legal in and of themselves, but running third-party games on them via downloaded files from the ‘net is still illegal. Devices like the Retrode attempt to get around this problem by allowing you to plug a cartridge directly into an emulator and then communicating with your PC via USB. But the question of whether it’s legal to make backup copies of ROMs and use them for that purpose has never been directly settled in court.
Emulator sites have existed in this gray area for decades, but recent moves by Nintendo are sending shockwaves through the scene. There’s no ambiguity over how Nintendo views ROMs, modding, and third-party emulators. The sole purpose of an emulator, according to Nintendo, is to “allow gameplay on a platform that it was not created for,” and the company believes the right to back up a work is solely to ensure you still have it if the original is destroyed (downloading a copy off the internet, according to Nintendo, is not equivalent to backing up a cartridge you physically own).
Nintendo’s stance on this topic hasn’t changed, but its willingness to take action against infringing websites definitely has. Several weeks ago, Nintendo hit loveROMS.com and loveRETRO.co with a massive lawsuit, as opposed to the typical cease-and-desist letter. The two sites were apparently massive distributors of Nintendo-themed ROMs, and Nintendo is asking for $ 150,000 in statutory damages per hosted game and $ 2 million for each trademark infringement. It also wants permanent injunctions on both sites, ownership of the domain names, and source records on where all of the ROMs were downloaded from. Theoretical maximum damages from the case could hit $ 100M, though there’s little chance of a verdict that large. Still, Nintendo obviously wanted to send a message — and it has.
EmuParadise hasn’t commented on the situation directly, but it’s not hard to connect the dots on this. Earlier this year, hackers demonstrate that the Switch isn’t impenetrable and can be modified. Worse, it found flaws in already-shipped models that Nintendo can’t correct. The company’s solution, it seems, is to crush the emulators that might otherwise be used to play earlier Nintendo games on the Switch.
At the same time, we do have to acknowledge one fact about the abandonware debate that is a little different in Nintendo’s case. There are hundreds of games, including some classic titles, that have effectively been left to rot or are now orphaned thanks to a snarl of bankruptcies, asset transfers, and licensing ambiguity that leaves nobody quite sure who owns a property. Downloading a game that you literally can’t buy may not be a legal defense against copyright infringement, but it makes sense on a practical level. Nintendo, however, is less susceptible to these charges than most companies. Nintendo has built its entire virtual console business around selling its own retro titles, it’s selling new Classic Edition models, and it continues to develop franchises that are, in some cases, 30-40 years old. Given the long-term care Nintendo has lavished on many (though of course, not all) of its franchises, it’s harder to argue that the company won’t monetize old characters again in future titles.
We won’t be surprised if this bloodbath continues. Console manufacturers tend to move aggressively to protect their platforms. Other ROM and emulator sites will eventually rise to replace the lost, but Nintendo seems determined to take some whacks at this particular mole.