Why piracy is the best way to archive old-school video games

This summer, video game company Nintendo sued several sites that let users download and play video games. Instead of fighting, many of the sites shut down instead.

These sites offered ROM (read only memory) files, that let their users play games on their computers through software called an emulator. An emulator makes a computer able to act like another computer, allowing it to access files meant for older video game consoles.

Frank Cifaldi is the founder and director of the Video Game History Foundation. According to Cifaldi, "the typical use of emulation in terms of video games is for playing older games that are on hardware that's not really accessible anymore. I'm 36 years old, right, so I grew up with the Nintendo Entertainment System, the Super Nintendo, Sega Genesis, etc. And typically the use of an emulator, especially for me, is for playing these older games without having to maintain this vintage hardware required to play them otherwise."

Nora Young: OK, so as far as I understand it most of these games are pretty old or their own consoles that aren't even made anymore. So why is Nintendo doing this now? 

Frank Cifaldi: Well, Nintendo does its own commercial emulation which is kind of interesting historically because Nintendo was the company that in the late '90s called the notion of emulation the biggest threat to the console industry. So they wrote this legal text in the late '90s, and it's still on Nintendo's corporate website if you go look.

That was sort of in reaction to the emerging emulators in 1997 to emulate what was then their current console, the Nintendo 64. So Nintendo demonized the notion of emulation at first but then sort of came around to realizing, "no wait this is a tool. This is a way to run our games on modern hardware without having to recreate them from scratch."

Nintendo itself adopted emulation starting in about 2006 for what was called their Virtual Console service, which was a digital service for downloading older Nintendo titles and they're continuing that on their current platform, the Switch. They have a platform coming out soon to play older Nintendo titles on the Switch. And my assumption is that all of this recent legal action is directly related to their strategy going forward of offering their old titles on the Switch. 

The unfortunate part I think is that we're not just deleting easy access to Nintendo's property — which, you know, totally fair. That's their stuff. But along with that is the 99.9 per cent of video game history that Nintendo doesn't own at all. And that stuff is becoming much harder to access.

So then, what's Nintendo's argument been for shutting down these sites? Like first of all are they actually illegal and what has Nintendo actually said?

Yeah, [there's] no doubt these sites are distributing illegal copies of software. There's no grey area here. That's what's happening.

But the thing is there's no other way to access these games. I don't think a lot of people understand how dire the situation is for accessing old video games. It would be the equivalent of if movies that came out on VHS tape never made the jump to DVD or Blu ray or Netflix or anything. It would be like the only way to watch Back to the Future is to have a VCR and an old tape that you had to buy on eBay. That's the current situation for almost every video game.

Do you think there's something at risk by depending on the sort of more informal piracy, or whatever, to make these games accessible and to preserve them? Are we at risk of losing something here? 

I think it's it's incredibly risky and it's really unfortunate. Traditional piracy through websites has just been the way that people can access games for a really long time now. There's just been no other alternative that's come up. I think there's a danger in relying on that. 

But I also think there's a danger in relying on the commercial world actually selling these things again, because so many of the weird interesting games — that have zero commercial potential now — would actually be lost if our only option were purchasing games that had some commercial value. And so I think there needs to be some kind of middle ground for people to be able to access the material that isn't commercially viable, but also buy the stuff that is. I don't know what that is yet.

That's something that at the Video Game History Foundation I hope to make some inroads on, but there's no clear solution for that yet. I think there needs to be a hybrid approach where people like me can "pirate" things that are old and forgotten and the commercial industry can sell the stuff that they want to sell and then everything is accessible to everyone. 

So then what's the best solution to preserving and making these games accessible then?

The best solution is mass pirate distribution to everyone. That's the best solution for making sure everything is safe. But is that feasible? Probably not. I don't think that's a long term solution.

What that long term solution is is kind of a mystery at this point. I think that attention to this problem is sort of starting this conversation of, well how do we actually fix this? Because this situation is awful.