The ethics of emulation will always be a sensitive area among video game fans and copyright holders. Unfortunately, as much as we try to jump through hoops to justify our own behaviour, copyright law is copyright law and any violation of such is unlawful. That’s the truth, but there are other “truths” as well (please, no comments about “alternative facts”). There is often a difference between “unlawful” and “immoral” and laws do not always represent the best interests of either the infringers or the infringed upon.
Sometimes we forget how young the video game industry actually is. Indeed, there are few if any video games old enough to have aged into the public domain – I don’t know if there even are any public domain laws specifically regarding video games. Several companies have released games into the public domain themselves or have just let their copyrights expire. Companies such as Exidy have generously made many of their titles (not junk either – actual high quality ‘70s/’80s arcade games) freeware for non-commercial use.
But chances are that if you name almost any given video game from your youth – no matter how obscure today, no matter how long ago the production company folded – chances are someone, somewhere owns it and they’re not about to let it go, either as a commercial entity or a freebie.
So what brought on this topic? Well, as you may have heard, Emuparadise – in my opinion the safest, most user-friendly ROM site out there – recently announced they are pulling all the ROMs from their site, although they are leaving the site up for their other services. Emuparadise hasn’t offered much in the way of specific reasons for this move. However, scuttlebutt has it that a certain very old, very powerful video game company successfully sued a similar site. So, even though EP pulled any titles by that particular company months ago, they have decided that continuing in the ROM game is not worth the risk.
I’m not advocating for the position that we somehow “deserve” free video games. Rather, I agree with the founding principle behind MAME: to protect the code of games being lost to history. I see this happening even today; increasingly, pre-NES games are becoming persona non grata. Atari is particularly vulnerable to this because for decades it’s by and large ceased to exist as a creative entity. Sure, I see lots of younger people wearing Atari t-shirts, but it’s an ironic hipster ploy (you didn’t really think all those kids wearing Journey t-shirts a few years back actually listened to Journey, do you?).
So if we can’t download these games as ROMs, then it’s up to the copyright holders to make them available legally, and this is where the free enterprise system breaks down. The more obscure the game, the less sense it makes to put money into development, production and distribution in order to serve a fringe market.
It has been done and continues to be done, however. Back in the mid-oughts several arcade game manufacturers – including Konami, Taito, Midway and Sega – released compilations of their classic coin-ops for then-current systems. Most of these collections at least carried their most popular titles. And that’s not even to mention all the versions of Atari Flashback that have been released.
But we’re talking about the major players here. Who has ever made a collection of games by second- or third-tier companies such as Universal, Gremlin or Pacific Novelty? More specific to the 2600, what about Games by Apollo, CommaVid or Data East? I mean, we can probably live in a world without Shark Attack (aka Lochjaw), but I know of people who legitimately like the game. As much as I may question those peoples’ sanity, the bottom line is if they want it, there should be a way to acquire it legally. You can always buy old, used cartridges but a.) physical stuff eventually deteriorates and these carts ain’t getting any newer and b.) buying a used cartridge doesn’t help the copyright owner any more than downloading a ROM.
And speaking of Shark Attack, who owns the rights to Games by Apollo’s collection? A web search came up fruitless. What I do know is that the company was forced into Chapter 11 bankruptcy all the way back in 1982. So in that case who owns Shark Attack? Some bank somewhere? The government? I don’t know enough about copyright law to answer that question.
I don’t have a lot of sympathy for copyright-sitters. Small, fly-by-night companies have been making dirt-cheap videos and DVDs of public domain movies for decades and dumping them into bargain bins everywhere – why can’t the same be done for obscure video games? The more likely scenario would be dumping them on a website supported by the fan community or advertising – or with enough volume, maybe even small subscription fees. Maybe the fan community can be of assistance in providing such a space or even designing it.
I love classic gaming and am tired of the constant threats and bullying of big companies which – while justifiably protecting their own intellectual property – wind up ruining almost all classic gaming activity. I’m tired of whole swaths of video game history becoming inaccessible. I know Emuparadise is not the only ROM site out there but it was one of the biggest and one of the safest and the end of its ROM library is a major blow to keeping older, obscure games in the public consciousness.