The recent news that Nintendo is taking legal action against two sites which illegally distributed ROMs has been met with an overwhelmingly positive response, and rightly so. The individuals sharing these files online care little for the intellectual property rights of the developers who slave away to make the games we get hours of enjoyment out of, and instead leverage the growing interest in retro gaming purely to plaster their sites with garish advertisements for mail-order girlfriends and other dubious businesses. Nintendo – a company traditionally very protective of its IP – has struck a blow which will hopefully have long-term ramifications for the entire industry.

However, too many commenters have leapt on this episode in order to loudly proclaim that all ROM sharing is the work of Beelzebub himself, an outlook which not only misses the point of digital preservation but also assumes that anyone who wishes to obtain ROM files online is a filthy pirate who has never contributed anything to the world of gaming. While we don't wish to play devil's advocate in this particular case, there are two sides to this story.

Two Sides To Every Story

First up though, let's discuss why Nintendo bringing the hammer down on ROM-sharing sites is a good thing. The sites tackled by the company in its recent legal actions were typical of this kind of operation; they hosted thousands of ROMs (most of which were taken from other sources online) and offered them for free download, with the money-making part of the setup coming from the floods of dodgy adverts. In short, these sites were profiting from handing out copyrighted material which they had absolutely no ownership of; from a purely legal perspective, it's an open and shut case.

Nintendo is a company which does more than most to make its vintage titles available to those who wish to play them; if you want to play a copy of EarthBound or Super Mario World, then there are perfectly legal options available that not only allow official and legal access to these games (and hundreds of other titles), but also permit Nintendo – as the copyright owner – to profit from their use, and therefore put those funds back into development of both hardware and software.

Things become a little more complex when you take into account those games which are not currently available in digital form. Any title which contains licencing is almost certain to be subject to a time-limited agreement, and once that period expires a new deal must be written up to allow its continued distribution. In a great many cases this simply isn't financially viable, and therefore these games are unlikely to ever get an official digital release. Examples include the likes of GoldenEye 007, Teenage Mutant Ninja Turtles: Turtles in Time and pretty much any video game based on a Hollywood movie; in these examples, the licence has often changed hands since the game's creation (the James Bond licence passed to EA and is now in the hands of Activision) which makes bartering a deal problematic.

The impact of licencing means that a great many games may never see a digital resurrection – and it's something that isn't exclusive to the world of retro. For example, the home ports of Sega's OutRun 2 and After Burner Climax – neither of which could be considered 'old' games – are now out of digital circulation because they both include licenced content; in the case of the former it's Ferrari cars, and with the latter, it's real-life military aircraft. Once the associated deals expire, the games cannot be sold.

You can also include in this scenario games for which the ownership is unclear; if a company from the '90s goes bust and its assets don't have a clear owner, those games are effectively in limbo and may never be preserved digitally in an official, legal capacity. You could argue that the morally correct way of accessing these titles would be to source copies of the physical versions, but this isn't always a failsafe method. The most obvious roadblock is cost – the game itself may have risen in value dramatically over the years, making a purchase unfeasible. Then there's longevity; like any physical media, video game software has a finite lifespan. Cartridges, as sturdy as they seem, will eventually become unplayable, while volatile media like cassettes and floppy discs become de-magnetised over time, and therefore useless. Even CDs, DVDs and Blu-Rays aren't immune to this – 'Bit Rot' is a very real danger that is already claiming optical media that many 'experts' told us would last forever not so long ago.

Cracking The Code

It's here where the line between what's legal and what's right when it comes to game preservation becomes a little muddy; 'dead' companies cannot preserve the work they've done, and even developers which still exist today don't do a brilliant job of looking after their past work. A shining example of this is Sega, which – according to Panzer Dragoon creator Yukio Futatsugi – no longer has the source code for Panzer Dragoon Saga, one of its cult hits and a title which many a Sega fan would love to see digitally remastered. Without these files, a re-release would be problematic. This might seem like an absurd situation, but it's actually a more common situation than you might expect – especially in Japan where, until very recently, developers struggled to see the benefit in painstakingly preserving source code for older games, especially those produced on home computer formats like the PC-8800 and MSX during the '80s. As a result, the original media is dying out and we're losing these games forever.

Therefore, the preservation of these titles becomes incredibly important; when someone dumps the ROM of one of these games, they are essentially saving it from the digital abyss. We already know that even Nintendo itself isn't above raiding online ROM-sharing sites for past games; it famously sourced a copy of Super Mario Bros. – a game that it surely has multiple cartridges of lying around its offices – for upload on the Wii Virtual Console. This may well have been a case of someone at Nintendo being too lazy to simply dump the ROM manually (a process which isn't all that hard, providing you have the correct equipment), but it's far from a rare occurrence; during the creation of this feature we spoke to more than one developer involved in collections of vintage classics on modern formats, and they told us that in some cases, no source files were forthcoming from the original IP owner at all – forcing them to resort to other means of obtaining the ROM files.

As you can appreciate, this is far from a black and white situation; ROM-sharing is a legally dubious area and copyright laws are definitely being broken, but if all of these sites vanished tomorrow, part of video game history – such as titles which are no longer in circulation or are on formats that are slowly becoming unreadable, such as cassettes and floppy discs – run the risk of being lost. Like so many things, ROM dumping is an activity which can be abused. Video game preservationists dump this data so future generations can enjoy it, not for monetary gain – take the work of the community which surrounds the Multiple Arcade Machine Emulator (MAME) program; unlike commercially-released home console software, arcade boards are fragile, limited in numbers and much more likely to vanish altogether. The work carried out by volunteers and enthusiasts in the MAME community has ensured that thousands of coin-op titles – including oddball updates, bizarre bootlegs and myriad region variants – will remain playable for years to come, but had these individuals slavishly followed the letter of the law, these games would be lost to time, wear and tear and (in extreme cases) destruction when the cabinet and its internals are scrapped. In this case, is the law right?

Ultimately, organisations such as the Game Preservation Society and The Video Game History Foundation aren't interested in 'pirating' games; what they want is to ensure that games don't become lost in time, and many feel from an academic perspective, video games should be available for study and critique, just like classic works of literature, music and film. The unfortunate side-effect of this process is that games which are still in circulation digitally get uploaded to shady sites who then capitalise on the public's desire for retro to generate ill-begotten revenue; it is this procedure which has spurred Nintendo into action and could well mean the end of freely-available ROMs online. At present, Nintendo is only concerned about safeguarding its own IP, but the shutdown of these two sites naturally takes a bunch of games for other non-Nintendo systems offline, too. And should Nintendo obtain its proposed payout, then it could trigger a gold rush as other IP owners move to secure damages against other sites which distribute ROMs. 

This is a situation that is both positive and negative; Nintendo is striking a blow for copyright, but at the same time could be removing access to thousands of obscure games from the past few decades of history; games that, without ROM-sharing, could eventually be forgotten entirely.