The Nintendo Emulation Situation: A Deep Dive
Foreword: I am not encouraging software piracy of any kind. Game development is an expensive and laborious process, and the developers, designers and artists deserve to be compensated fairly for their works. Please consider purchasing software legitimately rather than just downloading them online, particularly for newer titles that are still in production and readily available to buy.
1.) the reproduction of the function or action of a different computer, software system, etc.
2.) ambition or endeavour to equal or excel others (as in achievement).
In its essence, video game emulation is about getting a game to run on hardware other than the one it was designed for. There are two main different kinds of emulation - there is official emulation, where studios sell older software digitally and use an endorsed or licensed emulator tool in order for it to run on newer hardware (think the Wii's Virtual Console library), and then there is fan emulation, which has no association with the original publisher whatsoever, and is entirely community-driven.
The video game fan emulation scene has experienced something of a renaissance of late - and it's a community emblematic of the very best of the video game industry. By and large it is an open door, curated by swathes of dedicated and knowledgeable enthusiasts with a passion for accessibility, artistic integrity and preservation of the medium. Emulator software and readme .txt files alike are created with the single purpose of allowing players to enjoy their favourite games, both old and new, with the best experience possible. And this is all done not out of a desire for profit, but out of a love of the art form.
The emulation community has picked up the slack on countless occasions where the original developers/publishers have failed to deliver, from fan translations of games which never reached Western shores, accessibility mods to allow the visually impaired to enjoy their favourite games, to adding in online play to classic games that never even had it. Sounds like a video gaming utopia, right? Well, not exactly. Depending on who you ask, emulation isn't even legal, even if you own an original physical copy of the game you're emulating.
There are so many contradicting statements on emulation when it comes to the law. Let's start by addressing one of the more commonly-held beliefs that emulation and piracy are the same thing; they are not. Piracy is the unauthorised acquiring of software that has not been legally purchased - emulation is simply the act of running a game through an emulator (ie not the original hardware).
OK, but are emulators legal to use? A spokesperson for Nintendo in 1999 outright stated: "emulators are illegal, and they continue to support counterfeiting and piracy [...] this infringes on our intellectual property rights, and that's something we actively protect". Woah. There were a series of lawsuits around the turn of the millennium that seemed to dispute this, however. The most notable of these was the case around the Virtual Game Station, a PlayStation emulator, which Sony attempted to sue the creators over. The courts ruled that emulators were crucial in enabling reverse engineering of software, and was the only way to access games' "non-copyrightable ideas and functional elements", and that they were instrumental in fostering competition and preventing a monopoly. So, since then, the likes of Nintendo, Sega and Sony have no longer targeted emulators themselves in legal challenges, because every single one of them so far has ended in defeat. Emulators themselves are not illegal. This is pretty much the only clear-cut situation in the emulation legality discussion - the rest is a whole lot messier.
The bulk of legal confusion now lies with ROMs - namely cartridge dumping, distribution and ownership. But what the hell is a ROM? A ROM Image is a file that contains the actual data from a ROM (Read-Only Memory) chip inside a video game cartridge. There are devices for every kind of video game cartridge which can be connected to a computer and allow for "ROM dumping", which is the act of copying the ROM data from the game onto your PC. Because pretty much all video games were created on a PC, it was only a matter of time before people worked out how to reverse-engineer ROMs and make them readable on a PC. So, via ROM dumping, you could theoretically make a copy from your cartridge of, say, Goldeneye 007 for the N64, and run it on an emulator and enjoy the game on your PC. All of this would be legal, because as we know, it's not illegal to download an emulator, and you're using a copy of a file that you own. Except that this is also disputed. Nintendo's website claims that game copying devices are illegal, as they enable the distribution of ROMs from the Internet. All right, so you're not allowed to play your own games on anything other than their original hardware? Maybe. Nintendo's explanation seems to assume that all cartridge dumping is done in an effort to illegally distribute ROMs, but what about if the file is just for personal use? Creating ROM backups for personal use falls under fair use under section 117 of the US copyright code. So, is it illegal? The answer is...it depends?
The truth is that the law is outdated, vague, and contradictory when it comes to emulation. Whilst it is clearly illegal to download ROMs of games you don't own, the rest is a fuzzy grey area and in all honesty Nintendo's legal team have bigger fish to fry than chase down every single individual download of Pikmin 2. When it comes to protecting their IP, companies will be much more interested in taking down the distributors - the ROM hosting sites - than suing individuals. Ultimately, I think that it's reasonable to expect individuals to use a bit of common sense when contemplating emulation, and I think the two below examples should make it clear as to what I mean here.
Example One: I want to play Metroid Dread for free!
Little Timmy wants to play the latest Metroid game, which just released on the Nintendo Switch. It's £50 though, and Little Timmy doesn't want to pay full price to enjoy the game. Instead, he decides to install Yuzu, a Switch emulator, on his PC, and finds a copy of the game which he downloads. Timmy gets to play a brand new game absolutely free.
This is clearly an example of software piracy, and can almost undeniably be counted as an example of piracy affecting sales of the game. It's a new release, and it's widely available to purchase both physically and digitally. If you are going to emulate a new release, at least buy it first.
Example Two: I want to play Mother 3, because I can't play it legitimately
Alice is a big fan of the Mother series. It's a niche series though, and the third entry in the franchise wasn't released in Europe at all. The game released in 2006 in Japan only, on the Gameboy Advance. A collection of dedicated Mother fans banded together to create a fan-translation of the game, which was then distributed freely for fellow fans to enjoy the game which had not been made available for them. Alice decides to download this fan translation and gets to enjoy a game she otherwise wouldn't be able to play.
This is an example of software piracy, but it is piracy of a game which cannot be purchased or played on a European Gameboy Advance. It's no longer in production, and legitimate Japanese copies are selling for up to £150+ on Ebay.
...Should you be punished for "stealing" a game that you're not even able to buy? This doesn't equate to a lost sale, and Nintendo don't earn any money whatever way you choose to play it, so... is it illegal? Should it be? Valve CEO, Gabe Newell, had the following to say about piracy: "Piracy is a service issue [...] The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates." And that brings me very nicely onto my next point.
Gaps in the Market
Following on from my example of Alice and her downloaded copy of Mother 3 - it is my belief that the majority of people will only resort to piracy as a necessity. If there is an official means of acquisition, people will flock to that instead. Mother 3 has never been made available on any official Virtual Console platform, and until it is, I would consider Alice's hypothetical actions to be legitimate and justified. If, however, a genuine official alternative is made available, Nintendo would have every right to start clamping down on the thieving little ne'er-do-wellers.
Video games are so inherently unlike other traditional media because of the sheer variety of forms that they come in. Whilst music, for example, has jumped around from physical media in the form of vinyls, to cassettes, to CDs, and then into the digital realm of downloading .mp3s and streaming, almost all of it has been brought forward into these new mediums, and you can now find almost all established music online. Spotify, Apple Music, YouTube Music, Tidal and Deezer all have over 70 million tracks available, with Soundcloud boasting a whopping 200 million tracks. I know that there is undoubtedly music that isn't available across these platforms, but for the majority of the population, almost all of your musical needs can be found online. And whether it's Rock 'n' Roll classics from the '50s, the latest Stormzy album, or relaxing Japanese meditation tones from the mid '90s, all digital music can be played by almost any device with an audio output. And, it's the same story for TV and Film - we're in a similar place now where the majority of the entire back catalogue of decades and decades of TV and Film are now available digitally, and can be enjoyed on any device with no barrier for entry. Video games, on the other hand, have always been inherently tied to the hardware that they were designed for. You won't have any luck trying to jam your Duck Hunt NES cartridge into a PlayStation 5, for instance. And don't even try to fit your mint condition copy of Sonic CD into your Switch. It ain't happening. And while many games have gone digital, there is no single, uniform means of playing them like there is with video and music. It's still a very disparate ecosystem, even with digital storefronts.
A major reason for this is that many of the hardware manufacturers are also the publishers or developers of the games that release with the hardware. Exclusivity has always been a major selling point for consoles - just look at the fierce rivalry between Nintendo and Sega in the '90s, or the more recent spat between Microsoft and Sony in the '00s. Each system has its own mascots and flagship franchises that simply can't be found on other platforms. Things have slowly begun to change a bit lately with many previously-exclusive Sony and Microsoft titles coming to PC, and Nintendo dipping their toes into the *shudder* mobile gaming market, but by and large, this exclusivity is still a major element of the ecosystem. So, whilst it's unlikely that there'll be a utopian device which offers every single video game ever made in a single storefront, there are definitely steps that could, and should, be taken towards this glorious perfect future.
Nintendo are sitting on a goldmine of classic titles that they are simply doing nothing with. Aside from their extremely limited selection offered in the Nintendo Switch Online package, they aren't offering anything close to what many fans are managing to do through emulation. They had a pretty good thing going with the Wii's Virtual Console, with almost 400 titles available to purchase across a variety of retro systems. The trouble was that when the Wii U released in 2012, they decided to just start again from scratch. You could pay an "upgrade fee" to essentially buy the game again through the updated Virtual Console service, but many games that had been included on the Wii's Virtual Console were nowhere to be seen here. Almost 100 fewer titles appeared on the Wii U's service, and it's now only a matter of time before the Wii U's storefront is closed down for good, like the Wii's before it. And there is no way to transfer your purchases over to the Switch. By comparison, I bought Half-Life 2 for PC in 2004, and it was the first game in my Steam library. Four PCs and several major upgrades later, I can still play that same copy of Half-Life 2 no problem. There's a reason why Steam is the single largest online platform for digital games right now. They've long-offered a simple and effective service, and their competitive pricing and frequent sales have kept piracy down, with playerbases high. And what's more, your purchases are tied to a single account which is accessible from any PC with an internet connection. Nintendo don't seem interested in this, opting instead to throw out the previous generation's offerings entirely when a new platform launches.
Fans Do What Nintendon't
OK, so aside from unreleased and unavailable titles, what else has fan emulation got going for it? Well, as I alluded to in the introduction, the dedication of fans and the emulation community is astounding. Through emulation, countless classic titles have been given a new lease of life and have been improved upon in ways that would have seemed unfathomable upon release.
Render96 is a great example. The original source code of Super Mario 64 leaked online back in 2020, and since then fans have taken a look under the hood of the game, and just absolutely gone to town with it. Nintendo offered Super Mario 64 on the Switch last year as part of Super Mario 3D All-Stars, a package which contained some minor improvements such as upscaled icons and 60 frames per second, but it was a minimal effort. The game wasn’t even running in widescreen, which, when compared to fan emulation efforts, is a poor show. Fan emulation of Super Mario 64 (and, to be honest, almost all Nintendo titles) has been light years ahead of official offerings for decades. A recent endeavour from the community, dubbed Render 96, is an astronomically improved version of Super Mario 64, running at 4K with 360 camera control, HD models and textures, and ray tracing, and it puts Nintendo’s efforts to shame. Render 96 is named after the official renders that were produced for the game's launch back in 1996, with a view to reach this level and match this art style. And I'd say it's absolutely achieved that.
It’s a similar story with Ocarina of Time. Whilst there was an admittedly impressive remake of the game for the 3DS in 2012, even version of the game is getting on now, and it’s only playable of the 3DS, which suffers from a rather low-resolution display. However, boot this baby up in Citra, the 3DS emulator, running a 4K texture pack, and you’re golden. The difference is night and day. And currently, the only way to play Ocarina of Time on the big screen is by emulating the N64 original through the Switch Online service, which itself is reportedly a rather suboptimal emulator. Texture and fog issues, poor button mapping, input lag and straight up crashes have all been reported - none of which are issues on fan emulators because of the sheer number of options that come with emulation tools. Nintendo didn’t produce a remaster or even a port of this version of the game, so once again, the fans picked up the slack and did it themselves.
In the words of YouTuber Scott the Woz, “It seems like they want playing a Nintendo system to be like walking through Disneyland”. Nintendo’s offerings when it comes to emulation are barebones, and appear to be just barely held up by the belief that they want the process to feel “authentic” and “unchanged” from the classic experience. They seem to like to be in control at all times, and have always come down hard on anything that uses their IPs in anything but their strictly traditional and doctrinal ways. This is all well and good, but when your own fanbase are putting your...ahem...efforts (and I use the word effort there in the absolutely loosest sense) to shame, you can’t exactly expect them not to turn to emulation. Dedicated players and enthusiasts will turn to whatever offers the best experience. And yet, Nintendo seem to be trying their utmost to simply ignore emulation in its entirety. The Big N are clearly in no monetary trouble, so by the looks of things, their current strategy is working on that front. So whilst it’s unlikely that things are going to change anytime soon, I can’t help but dream. And my dream looks something a little like this…
Imagine it. An official online storefront consisting of every single Nintendo-licenced title, from the NES era until the Gamecube. And let’s not forget the handheld consoles either. Thousands and thousands of ROMs, available to purchase in one place, DRM-free, at an affordable price, and yours to own - forever. And they could even take a leaf out of SEGA’s books, and allow users to do what they want with the ROM and run it through their preferred emulator once it had been purchased. I do genuinely believe that if a service like this was set up, piracy numbers would absolutely plummet. As soon as a viable official solution is made available, the vast majority of thieving pirate scum would lay down their arms and join the warm embrace of Daddy N. They’d be making money from it, and it would likely reignite interest in long-dormant series and obscure titles like F-Zero, Doshin the Giant or Wave Race that could lead to new entries on the Switch. Everyone would be a winner. Looping back around to those initial emulation definitions I listed at the top of the article, that second definition mentioned an "ambition or endeavour to equal or excel others". This is interesting - an ambition to excel others. The fan community's work has definitely met this criteria, whereas I'm sorry to say that Nintendo's hasn't.
But alas - until the glorious day is upon us, I will be forced to put up with Nintendo’s meagre emulation offerings on the Switch, and hope that the G4M3R P0L1C3 don’t come knocking on my door to arrest me for emulating games that I already own on my PC. Stay safe out there kids, and don't go downloading viruses onto your computer in a frantic attempt to play Super Mario 65. It doesn't exist.
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