NES & Super Mario Bros
Image: Zion Grassl / Nintendo Life

The game industry is youthful compared to other areas of entertainment and recorded culture - younger than film and TV, and of course a baby compared to printed works. Yet we're now decades into the history of gaming, especially if you go back to the systems of the 1970s, perhaps even a little earlier. Even if you choose to focus on the 'modern' post-crash era of gaming, we're rapidly approaching 40 years within that narrower perspective.

We see this every day as fans, of course - franchises like The Legend of Zelda, Super Mario and Sonic the Hedgehog are over 30-35 years old. We have commemorative products and re-releases on a regular basis, and the way we appreciate and consume retro games is also continually evolving.

Despite all of this, an issue of increasing importance continues to drift along with limited improvements and engagement from gaming's largest companies and rights holders - preservation. It's a topic we've covered before, both in terms of the practical realities of ageing media malfunctioning and the difficult issues around copyright.

It's a topic that's come up again recently, with the announcement by Frank Cifaldi that he has an arrangement with WATA to verify and catalogue rare prototype games before they disappear entirely into private ownership. Before we explore what's ruffled so many feathers, a brief recap of the parties involved, and why they're important in the game preservation space.

Working with WATA for the greater good

Frank Cifaldi is co-director of The Video Game History Foundation, an organisation deserving of praise for its continued efforts to create and grow a video game research library. It's an organisation that also arranges events to showcase history, gathers together key physical gaming history like hardware and magazines for its archives, while challenging and campaigning for companies like Nintendo to improve their practices and attitudes to game preservation. Cifaldi is a key and respected figure in that space.

WATA is a company that initially gained attention for facilitating auctions of game collectibles at eye-watering prices, generating headlines as game copies changed hands for huge sums, such as a Super Mario 64 copy selling for over $1.5 million. A focus of these sales is a 'grading' applied by WATA, and it describes itself as a "trusted leader in collectible video game grading". However, there have been accusations that the organisation operates a manipulated market based on speculation and flipping, artificially driving high prices; there have also been allegations of collusion with auction house Heritage Auctions. Karl Jobst produced an extensive video exploring various angles of the controversy. Questions over the basis of these valuations are continually raised, with a suggestion that greed driven by WATA gradings is distorting and damaging the collectible market.

Cifaldi, an advocate for game preservation, therefore caused surprise when he confirmed his work for WATA in verifying prototype games before they go to auction, some of the most genuinely rare products in the industry; for some it was hard to put the two together. From one perspective Cifaldi had done a deal with the devil. As Cifaldi puts it, though, his work allows him to verify and record data on rare game prototypes that could otherwise be entirely lost from the public eye, getting a form of information to share before they're gone.

Of course, social media is rarely a place for reasoned debate, but after a couple of days for the dust to settle Cifaldi did post an extensive thread outlining his reasoning behind the agreement with WATA. He offers a defence of some collectors in terms of the work and research behind a lot of purchases, in addition to those significant sums of money in each purchase. In the earlier post three years of reports were also shared, giving a glimpse at the number of interesting prototypes that were authenticated and recorded.

Ends justifying means

While it's the easy option to simply look at this as a negative, given the poor repute in which many hold WATA, we think valid points are made about the grey areas, where compromise and reality are accepted and the best possible solution is found. Most would like a wonderful world where all rare gaming history is shared freely for the public to enjoy. That's not the world we're in, though, so it's understandable to get involved in the auction market on the proviso that you get something back - in this case records of rare non-commercial gaming prototypes.

We're at an awkward juncture where preservation and failing old cartridges and systems make archives more necessary, but companies still see money to be made.

We've compared gaming record keeping unfavourably in the past with older mediums, but similar compromises take place in those archives. Let's take rare books, as an example. Academia and public-funded organisations like National Libraries do a great deal of the legacy work in cataloguing, preserving and sharing imagery of rare books. Yet this is the result of 100+ years of work and many more centuries of book history falling into place. For example, many archives heavily rely on posthumous donations from collectors, so there will have been decades when these rare editions would have been in private hands. Universities and libraries also attend auctions to try and secure items, but are often outbid by private individuals.

So even that scenario isn't perfect, and that's with these historical editions not having the same copyright concerns that are still prevalent in the modern industry of gaming. That's where the big companies come into play - they're businesses seeking to profit from their products, not give them away. Nintendo now shares a controlled number of retro games on Switch via its Nintendo Switch Online subscription service, while SEGA recently gave details of Sonic Origins, which will package old games together in a $40 digital wrapping. We're at an awkward juncture where preservation and failing old cartridges and systems make archives more necessary, but companies still see money to be made.

The failure of old technology is an area where the gaming situation comes under stress. There's also the question of how long companies should maintain their 'vaults' of old content on the off-chance they can squeeze some more profits. The business angle would be "as long as copyright, IP and trademark laws allow", that is the company's right. What organisations like The Video Game History Foundation highlight, though, is that companies like Nintendo (and many others) often fall short in preserving their own source code practices. For example, companies sometimes turn to those that are preserving original game code for help, as their own copies and virtual archives have fallen short.

It's often private groups or enthusiastic individuals preserving gaming history, and to do so privately is perfectly legal. The question comes up, though, when should this history be open to share with the public? When can a ROM of a classic game be shared with the world? Do we wait for myriad copyrights to expire, or do companies take a more holistic view? Likely the former, of course.

Documenting a digital past before it disappears

And what of games that aren't actually available through any legal avenue? These are often blocked from public access too, of course, leading to the many arguments as digital stores close down and games are truly lost outside of private copies and preservation. This is just on the horizon for relatively recent games when the Wii U and 3DS eShop stores close.

It's complicated and difficult, and the best solutions will naturally need some form of compromise. We'd love a scenario where major companies agree a 'term of sale' for games, perhaps 40-50 years, after which public access to digital source code is allowed without roadblocks and takedowns.

That seems fanciful, of course, but unless a compromise is found between business and preservation, we'll be left to deals with the devil or, worse, simply waiting decades for copyrights and more legal periods to expire.

Let's just hope that historical source codes, in various forms and physical media, survive long enough for the eventual solution.