Nintendo And The Industry Needs To Get Serious About Game Preservation

Over the holidays we’re republishing some of our best features, interviews, opinion pieces and talking points from the previous 12 months from staff and contributors alike — articles that we feel represent our best of 2021. In them you’ll find our usual mix of thoughtfulness, frivolity, retro expertise, gaming nostalgia, and — of course — enthusiasm for all things Nintendo. Enjoy!

For those following the general chat around video games, one topic that has generated debate recently has been Sony’s announcement of the upcoming closures of digital stores on PlayStation 3, PS Vita and PSP. As news, it wasn’t necessarily surprising, for reasons we’ll expand upon, but it did bring the whole subject into sharp focus.

It’s hard to find anyone that approves of the move, and though existing purchases on those storefronts will remain accessible to redownload, this is only “for the foreseeable future”, which is ominously vague. In addition, many have pointed out various iconic digital-only games that, in theory, will no longer be available to purchase and play legally. That has been the crux of much debate, not only around Sony’s decision but the nature of gaming media itself.

Nintendo, of course, is in the middle of this topic, through its past actions and questions over the future. It’s a good time, then, to consider some of the issues raised.

What are the technical and business challenges of digital preservation and access?

One issue that doesn’t often get addressed in the undeniably passionate debate is logistics — are there challenges that actually make it unfeasible to maintain digital stores and their content long term?

In terms of nuts and bolts, the general opinion of our technically-minded staff members is that though there are costs and logistics to bear in mind, they’re not necessarily significant enough to justify withdrawing financial support. Maintaining servers on low-use stores, for enormous billion-dollar corporations, shouldn’t be too much of a concern. Old servers and databases, such as Wii Shop for example, may be operating on end-of-life services, in which case the data would need to be migrated to more modern alternatives. In general though, this shouldn’t be a particularly tough undertaking considering the resources of Nintendo / Sony / Microsoft, but of course it nonetheless needs to be sanctioned and approved.

So, in terms of servers and data, the technicalities need not be too much of a factor. However, it’s far more complicated than this once you consider areas such as licensing and copyright; these are truly the defining issues with preserving certain games, at least in their original forms.

Put simply, copyright concerns around video games are significant because of the medium’s unique nature, and its comparative youth.

Put simply, copyright concerns around video games are significant because of the medium’s unique nature, and its comparative youth. For example the copyright laws around books, or more specifically authors of printed works, are established and clear. A specific number of years after an author’s death their work can be distributed and preserved for free (though you can’t just sell a copy of a Shakespeare play, for example, unless you own the rights). Until that time, the legal owner of the copyright controls all means of distribution.

However, printed works have been an industry for hundreds of years, and the video game industry is a baby by comparison. In addition, games get complicated because they feature so many pieces from different sources, in some cases each with their own rights issues. Music is the classic example, especially in modern games, where they’ll license music but then, eventually, that agreement expires. You only need to see the exasperated eye-rolls of all concerned when it comes to GoldenEye 007, too, as attempts to re-release it fell foul of so many rights holders being involved.

Apply these issues to specific older games, and regardless of platform holders closing stores they eventually get removed from sale. The idea of reviving them falls foul of the same problems, as the effort and expense of catering to all licenses and rights holders is significant. This article on why you’ll never get to play your favourite retro game on Switch delves into this in detail.

So, we fall into unofficial preservation via ROMs and the enthusiast space, which is where things get messy.

Game preservation isn’t the same as game piracy

This area of debate has done the rounds here on Nintendo Life for many, many years. We know Nintendo’s policy, which is typically to shut down ROM sites or projects that it considers to be infringing its copyright. Perhaps a problem in the debate, and indeed at times Nintendo’s policy towards it, is a focus on ROMs = piracy, which is a simplistic argument.

It’s worth remembering that, for reasons only known in Nintendo’s HQ, the Wii Virtual Console version of Super Mario Bros. was believed to be derived, either entirely or in part, from a ROM online. The video below from Eurogamer sums it up nicely.

However, let’s not be naïve; some use ROM sites for pirating content, plain and simple. That subset of the gaming audience unfortunately directs the gaze away from those simply trying to protect the industry’s history. It’s vital that we recognise the excellent work of organisations such as the Game Preservation Society and The Video Game History Foundation; they’re at the forefront of ensuring that the industry’s history, including gaming publications as well as actual source code, are preserved.

Where it gets sticky is what you do with game source code, for example, when it’s preserved. This is where issues of copyright and licenses, highlighted in the previous section, stick their head back above the parapet. The moment content is shared or distributed so that the public can see historical games for themselves, the law becomes a factor and companies’ ears start burning. Somewhere in the topic, copyright and ownership cannot be escaped, it’s the recurring theme.

Are Nintendo and other major game companies preserving their own history?

Before we get too critical here, it’s important to acknowledge that every form of media experiences growing pains in preserving its history. Much of early cinema was lost as film was literally disposed of once theatre runs were over; as attitudes shifted so did efforts to retain copies and preserve film. In television the BBC infamously had to own up to the fact it had lost master copies of iconic shows like Doctor Who because it had simply taped over them. Archiving, in all industries, has enough errors and mishaps to fill a library’s worth of books.

It’s clear that at present a lot of the industry’s big players are entirely slapdash when it comes to managing source code of their own games.

That said, it’s clear that at present a lot of the industry’s big players are entirely slapdash when it comes to managing source code of their own games. SEGA is practically famous for this, and a recent example put Koei Tecmo on the defensive; Team Ninja brand manager Fumihiko Yasuda said only “fragments of the data” remained from the original Ninja Gaiden and Ninja Gaiden 2 (the more recent 3D ones, that is), so the upcoming Ninja Gaiden: Master Collection is utilising the ‘Sigma’ versions for the work. The age of the Remaster has frequently demonstrated that developers have had to work around a lack of coherent source code when producing enhanced editions, and projects like the upcoming restoration of ‘lost’ arcade game Clockwork Aquario — a title being painstakingly reconstructed with input from members of the original development team — highlight the challenges preservationists face.

Nintendo isn’t squeaky clean here, as the example of Super Mario Bros. on Wii Virtual Console highlighted; this makes its often aggressive attitude towards ROMs, at times, counter-productive. The fact is that ROMs and structured, established resources of emulation software are vital, too, because physical media won’t last forever. Our own Damien McFerran is one of multiple Nintendo Lifers with a substantial retro collection, and he has written about the realities of historic game systems and their media slowly but surely dying. Without the digitisation and secure storage of this content, it could be lost forever.

Of ‘the big three’, there is no doubt that Microsoft (the comparative youngster of the industry) is earning the best PR at the moment for its treatment of older games. It’s far from perfect, but at the very least it’s making noises about preserving gaming history, and going to impressive lengths to support backwards compatibility on its current system. In comparison, Nintendo and Sony are currently off the pace.

Business is obviously a big factor; it’s plain as day that Nintendo will adopt the ‘Disney Vault’ approach of scarcity and fear of missing out to drive monster profits; it sure worked with Super Mario 3D All-Stars. Also worth noting, we don’t even have full security in terms of access to our old digital purchases on the Wii Shop, for example; Nintendo, like Sony, says re-downloading old downloadable content from that store “will eventually end at a future date”.

Game preservation, in the youth of the games industry, is still being swept aside by profit-driven business. The fear is that if preservation of gaming history isn’t upheld and managed by companies like Nintendo, the reliance on voluntary groups can feel precarious. With many games lost already for various reasons, how many more will disappear before the games industry matures and protects its legacy? Can legal areas like copyright and licenses be addressed in the same way as other forms of entertainment media, to aid the efforts of those that seek to preserve the medium?

Big questions, and as it stands not many answers from those that hold the keys to the vault.