Google Drops Legal Emulators to Appease Copyright Holders

I’m a big fan of retro gaming. Not because I think it’s cool or because the games were especially good, but because there’s such an enormous wealth of games available that have been made in the past. (I’ll admit, there’s a strong sense of nostalgia in there too.)

But other than that, there’s something particularly satisfying about the simplicity behind these old games. From plain text adventure games to 2-D platformers, there’s not much you need to know about the games in order to play them. This way you don’t need to invest a large amount of brainpower into playing a game; you just need to hit buttons and have fun.

I’m not the only one. There’s an ever-growing community of people who are discovering and re-discovering the seemingly endless back-catalog of old games and the entertainment they provide—especially now that most of us carry little computers in our pockets. More about that in a minute.

Big game companies have recognized the potential these old games have for profitability. Dozens of websites feature the ability to play these retro games, from arcade classics to Sonic the Hedgehog and beyond. Flash technology allows us to recreate and play the games of our childhood from any modern computer, albeit with occasional glitches from improper porting.

Game companies, most notably Sega (the makers of that ultra-profitable Sonic series), have finally caught on to this and realized that their entire catalog, even the oldest and most outdated games, are still worth something. Not the hardware or the merchandise—just the programming. These companies are finding ways to re-release these games to the public at affordable prices that rarely exceed $5. Nintendo’s Wii allows you to download and install games from several different consoles, including the Sega Genesis and the TurboGrafx-16.

Being overly nostalgic and a bit rom-savvy, one of the first things I did when I got my G1 phone was find out if I could run an NES emulator on it, and sure enough, I can. Not only that, but I’m running a C-64 emulator, an Atari 2600 emulator, and even ScummVM, an application that assists in the loading of LucasArts video games like The Secret of Monkey Island. Normally I don’t install applications that I have to pay for, but all of this was worth $3 per program, and ScummVM was, and still is, free.

My thinking: Who wants Solitaire when you can play Battletoads while waiting for your to-go order at the local deli? Apparently a lot of other people feel the same way, which is exactly why the emulators are so popular. Actually, a lot of those people are in the industry themselves.

And those people up in the industry just got Google to pull most of those emulators out of the Google marketplace, so you can no longer download them through that method. However, you can still manually install the emulators on your phone anyway, so this is really just a way for Google to say “Not my problem!” But why would this happen? Why would Google decide to disallow emulators in their marketplace just now?

It probably has nothing to do with the retro-gaming boom. It’s probably not related at all to Nintendo selling old games through Wiiware. I doubt it’s connected in some manner to the brand new Sony Ericsson Xperia Play gameplay-oriented mobile phone. Couldn’t be. Google must have just now decided to pull emulators just because they don’t like them.

Is the problem that emulators are illegal? Nope, because they’re not. No more illegal than a DVD player, even though you can put copied DVDs in it.

Is it that the ROMs are illegal? Possibly, but that still shouldn’t have any impact over whether or not the emulator should be available. Since its launch, Google’s market has been praised for its openness. Anyone can submit just about anything, and the best just rises to the top of the ranks. Very few apps have been pulled and the developers banned.

Do the game makers care about ROMs being traded freely on the Internet? Yes, but they’ve historically ignored it since the games haven’t been profitable for years. In other words, trading ROMs on the Internet didn’t translate into a loss of revenue—until recently.

Now, with the popularity of emulated gaming on mobile phones on the rise, these companies want to take back their intellectual property. Nintendo’s got a lengthy writeup on their website explaining their position on the topic, including this section on the legality of the possession of ROMs:

There is a good deal of misinformation on the Internet regarding the backup/archival copy exception. It is not a "second copy" rule and is often mistakenly cited for the proposition that if you have one lawful copy of a copyrighted work, you are entitled to have a second copy of the copyrighted work even if that second copy is an infringing copy. The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet.

I’m a supporter of the point of view that I can own a copy of particular media if I’ve paid for the content or if I’m currently a subscriber to a service that allows me access to the media. Therefore, if I’ve paid for Battletoads, I should be able to put a port of Battletoads onto my phone and play it anywhere I go, right? Wrong, according to Nintendo.

I understand their interpretation. They are pointing to the limitations of court cases which say that a single copy can be made by the owner for the sole purpose of protecting the owner from loss of the media in case the original is rendered unusable. This came about when MP3 rippers became popular, and people were using them to make copies of the CDs they’d buy so that they could protect the original in a bulletproof CD case while the expendable CD-R went in the car, ready to fall out of a visor disc holder and crack on the center console. Of course, most people were using MP3 rippers to copy their friends’ CDs.

As DVDs became more popular, this school of thought expanded to include the same protection for copies of that format of media as well. Therefore, I see no reason why this viewpoint can’t include video games as well. In 1994, my next door neighbors moved away at the same time that my Game Genie and eight of my favorite NES games disappeared forever, including TMNT 2: The Arcade Game. I was the owner of that content; should I not be allowed to download the ROMs and play the games from my childhood without having to pay for them again?

Nintendo’s opinion is that I should pay them for games from my youth. It’s like my parents paying to watch seasons of Mork and Mindy on DVD: Just because it’s nostalgic doesn’t mean you get it for free. And since you didn’t take your original NES cartridge of TMNT 2 and pull all the sprites, music sequences, sound effects, and programming and reassamble them yourself, you didn’t make the copy. And since you didn’t make the copy, it’s illegal.

But hey, those legal CD copies? I had to use tools to make them happen. No such tool exists for ripping a cartridge. Someone else making the ROM takes the place of me using an MP3 ripping program. Therefore, it’s legal if I own the game.

So why is Nintendo so defensive? Here’s their explanation:

The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers. As is the case with any business or industry, when its products become available for free, the revenue stream supporting that industry is threatened. Such emulators have the potential to significantly damage a worldwide entertainment software industry which generates over $15 billion annually, and tens of thousands of jobs.

Hey, I get it. Nintendo’s making $5 a piece selling Wiiware versions of these games from my childhood, and they want to get into the mobile phone scene as well. If I can just play these games for free with my legally paid-for emulator, then that’s a big problem for them.

The real offender here is Google, who have decided to change the rules. Now emulators are seen as a bad thing, a criminal’s tool. They can do this, since they own the entire system and have reserved the right to change the rules whenever necessary. However, this is just another chapter in the digital rights battle.

There’s a lot of grey area here, and we’re going to need to define the legality much more clearly in the near future. Google probably shouldn’t have dropped the emulators from their market, but it doesn’t change a thing. Only one thing’s for certain: We’ve finally reached a point where retro gaming is as nostalgic as retro-television. Follow @torqtorq