A major hosting site took down all its ROMs. What’s going on?

EmuParadise, for 18 years a go-to site for emulators and ROMs to play hard-to-find, if not ancient video games, announced last week that it would no longer offer its vast library of ROMs. The legal exposure, the site’s founder said, was simply too great a risk to himself and those who have supported EmuParadise’s efforts.

Though EmuParadise did not name Nintendo, much less any legal threat from the console-maker, as the reason, many have tied that company’s vigilance and willingness to take legal action to this development, which seems like another setback to ROMs, emulation and video games preservation.

What’s going on? Who’s to blame? What is the solution, if any? We’ll try to explain all of the issues in play here — some going on for decades — and why emulation is about more than snagging free copies of old games.

What happened, exactly?

On Wednesday, MasJ, who founded EmuParadise in 2000, announced that all links to download ROMs would be removed. ROMs are, generally speaking, game files pulled from other media, whether an arcade cabinet’s motherboard or a chip inside an old cartridge. MasJ obliquely mentioned that those who host ROM downloads are in a position more precarious than before, and that the trend does not show the situation resolving or getting any better.

What’s he getting at, really?

MasJ was most likely referring to this development, from mid-July, in which Nintendo filed a federal lawsuit against the owner and the business behind the LoveROMs and LoveRETRO websites. Nintendo’s complaint branded the defendants an “online piracy business,” and whose operators are “sophisticated parties with extensive knowledge of Nintendo’s intellectual property.”

But Nintendo’s always been aggressive against this kind of thing, right?

Mainly, Nintendo’s legal action in this realm has been the so-called C&D letter, and it’s been most visibly sent to the creators of fan-made works, demanding that they take down files that infringe on Nintendo’s intellectual property. (It’s even gone after a trove of Nintendo Power magazines hosted on the Internet Archive.) Nintendo has also been aggressive against outright piracy, but generally the company has targeted companies that sell or distribute game-copying devices.

What’s different now is, this is a lawsuit against a ROM hosting site, not a nastygram sent to the maker of a fan game. The $100 million in damages that Nintendo could claim (based on statutory damages for the dozens of Nintendo titles on the sites) were probably threatened in order to shut the sites down. In fact, both have since been taken offline. This all likely played a role in EmuParadise’s decision regarding ROMs, too.

Why is Nintendo going after ROMs now?

Nintendo’s standard response when asked about takedowns, C&Ds or copyright matters is usually a statement about it respecting other creators’ rights to their work, and expecting the same in return, and its obligations to defend its work.

But Nintendo’s movement into — and enviable success with — retro gaming in its NES Classic and SNES Classic mini-consoles may have something to do with it. There’s also Nintendo Switch Online, which is expected to go live next month; that service will give subscribers access to 20 old NES games. And Nintendo’s been in the business of selling its vintage library of games under the Virtual Console banner since the launch of the Wii in 2006.

So, a case against ROM owners is certainly a lot stronger — if not also more necessary — if a site is giving away the same Punch-Out!!, Metroid and Donkey Kong Country games that are available on or through current Nintendo products.

Are emulators and ROMs legal?

Emulation advocates have pointed to a 2000 ruling by a federal court of appeals as holding that the creation and use of emulation software is legal. (In that case, Sony had sued Connectix Corp. over a Macintosh application called the Virtual Game Station.) This is probably why EmuParadise is continuing to host updated versions of those applications, which probably still have value to users who still have libraries of ROMs (or can find what they need elsewhere).

ROMs are rather clearly a matter of copyright. Attorney Michael Lee of Morrison & Lee, a Los Angeles-based law firm whose work includes matters related to video gaming, copyright and the Digital Millennium Copyright Act, among others, blogged about this last week. “Don’t use other people’s IP without permission,” he wrote flatly. “Yell fair use all you want but this is not fair use, it is just copying someone else’s work.”

So how could EmuParadise go on for 18 years if hosting ROMs is so obviously unlawful?

MasJ, in the note on EmuParadise, indicates that the site “receiv[ed] threatening letters in the early days,” and even had hosts shut down their servers because of complaints. EmuParadise said it had also complied with takedown requests. But for whatever reasons, it’s never faced anything as big as what Nintendo has brought against Love ROMs. In copyright law, it’s often a matter of how far the copyright owner is willing to go and how satisfied they are if lower-level demands are met.

Does this mean there are no ROMs still available?

Hardly. There continue to be forums, sites and other means of sharing the same files that got LoveROMs and EmuParadise in trouble. Some of these sites are stocked with ads or gate their downloads with accounts or time delays, but we found a ROM for Super Mario Bros. 3 on the first page of a Google search.

There’s also The Internet Arcade, though the now more than 1,700 games offered are playable only through a web browser — meaning they cannot be downloaded and distributed. The Internet Archive, a non-profit organization, hosts the games as part of its mission of preservation and providing access to knowledge.

What does all this mean for video games preservation?

Preservation advocates have lamented EmuParadise’s self-imposed shutdown of offering ROMs, calling it a blow to those interested in finding, preserving and examining old video games. There is The Internet Arcade (which hosts browser-playable games); The Video Game History Foundation (which collects, catalogs and distributes to other institutions gaming related specimens, and not just code) and The Strong museum in Rochester, N.Y., which showcases many in interactive exhibits for its patrons. But the reality is most old video games are preserved on ROM sites that don’t have any outwardly stated mission of preservation — not that it would be a legal protection anyway, if the material is being made available for download.

A huge part of the problem is simply U.S. copyright law. For works made for hire created after 1977, the copyright term is now 95 years from first publication. Works created between 1964 and 1977 got a 28-year original term and a 67-year renewal term. Thus no video game’s copyright has expired, even if the companies that published them are now defunct and the actual rights holders either don’t exist or can’t be found.

Regardless, ROMs seem like an increasingly problematic way of preserving video games. Writing for Ars Technica, Kyle Orland called on “classic gaming’s gatekeepers,” meaning the copyright-owning businesses themselves, “to sort out the rights issues and loosen their grip on these legacy libraries.” He argued that unless they do so, piracy will have a “de facto monopoly on much of gaming history.”

Frank Cifaldi, founder of The Video Game History Foundation, also laid blame at publishers’ and rights-holders feet, in an expansive Twitter thread. However, he carefully pointed out that he is not arguing for the piracy of ROMs, and noted that many ROM sites monetize the work by selling advertisements.

Chris Kohler at Kotaku argued yesterday that ROMs even seem to be more of an antiquated file format, like MP3s, whose relevance has largely been ceded to streaming music. Streaming or web-hosted archives would therefore be a naturally analogous solution to this problem. The question, again, is whether the rights-holders — profit-making and profit-motivated businesses — are interested in such things. For as Nintendo so clearly demonstrates, there are 30-year-old video games viable as commercial products today.