In case your new to the Internet, Nintendo, iOS and all things cool, I’m going to share with you one of the greatest tragedies of iOS gaming: Nintendo continues to refuse to port old (read “classic”) NES and GB/GBA games over to iOS. This has been a personal frustration for years!
My first video game was Super Mario Bros., and I can’t even begin to tell you how awesome it would be for me to be able to play it again, on my phone. That is why, with mixed emotions, I share with you the following news:
The Game Boy Advance has been ported to iOS!
Now, because we don’t support piracy, I won’t provide a link to the site that makes all of this possible — though it wouldn’t be hard for you to find anyway. Besides, I’m not writing this as some sort of review. I want to ask a question,
“Is it ok to pirate a game that is decades old?”
The Legal Gray Area of Piracy
To my mind, there are two legal issues at play here:
1) providing someone else’s paid-product for free and 2) earning money from ads on pages where the traffic is derived from video game piracy.
Morals aside, this is what the inevitable lawsuit is going to center around.
Of course, pirates aren’t stupid. This particular website offers this lovely little disclaimer:
“By tapping “Download” below, you confirm that you legally own a physical copy of this game. [We do] not promote pirating in any form.”
Maybe you can call this a gray area, I’m not sure, but I think they’re basing this disclaimer on the following logic:
I own this Game Boy Advance game, and I want to modify it so I can play it on my iPhone.
I don’t know how to modify the game to play in iOS. My “friend” modifies the game, builds an emulator, and puts it all together for me.
I download this iOS version of my game and install it on my phone. I don’t pay “my friend” for any of this.
While that might help them sleep at night, I don’t know if that will work in court.
The Morality of Piracy
I’m not going to lie: I downloaded a game. It’s not the same experience that I had as a kid, but it’s still fun. Most likely, though, by next week, I’ll be clearing this all off for storage space on my phone. But until then, am I sinning by having this game on my phone? Is it morally ok to download a game for which I already own a physical copy?
I’m not sure.
It’s not like I bought the game with the expectation that I should be able to continue to play this bit of software on all future hardware platforms. I suppose it would be more reasonable to expect Nintendo’s future platforms to accept past software, and to some extent, it does. The Wii played GameCube games, and the Wii U plays Wii games. Both systems had/have online stores through which you can purchase/re-purchase older games, so I guess that angle is covered.
But what about iOS users? Is it morally acceptable for us to download these ported, pirated games just because we bought a game cartridge twenty years ago?
Let’s get this discussion going. I really want to say “yes,” but I’m inclined to say “no.” What say you, gentle readers?
[via Cult of Mac | Image via cabbit via Compfight cc]
Darius says
I say no.
If I had a song on a record from the 70s, does that mean that I’m entitled to a copy of it on every medium since? Of course not…
Phil Schneider says
Great example, Darius.
Wait? Did you say “record”? Eesh. You skipped right past cassettes and went all “ancient” on me.
🙂 Thanks for the comment!
Jared M says
But there is hardware available that would allows you to convert records to mp3s and, as far as I know, no one has ever said doing such is illegal. Technically speaking, this is what we’re talking about here, converting an old version of something you own to a new medium. Isn’t it?
Similarly, and correct me if I’m wrong, I don’t think that it is expressly illegal or immoral to convert a DVD to a digital file as long as you use it for personal use only.
Phil Schneider says
That’s what I thought, too, but if you scroll down, some other commenters didn’t agree.
Jared M says
I saw those comments, but I think they’re giving a simple disclaimer too much legal authority. I’m pretty sure that legal precedent gives individuals a right to make backup copies of both film and music, including a digital copy. Converting your CDs to mp3s would never be considered a problem unless you intended to distribute those. While that right doesn’t necessarily translate to video games, it seems as though a solid case could be made for it. However, if called into question, one would have to produce proof of ownership of that game, which is difficult for me because with 3 younger siblings, I’m pretty sure most of my originals are long gone.
Phil Schneider says
Very good point, Jared. I was thinking along those same lines.
Eric Dye says
Good point, Jared.
Andrew Fallows says
I don’t know the laws governing piracy, so I don’t know what exactly, by the letter of the law, constitutes piracy. I think it’s important to know that, because there’s a clear biblical basis for respecting and obeying local, human governments even if their laws are suspect or not based on God’s morality (for example, the Bible doesn’t weigh in on speed limits, so driving fast isn’t a sin, but speeding goes against the local government, so you could argue that speeding is sinful on that level).
With lots of things, especially intellectual property and software, the letter and the spirit of the law are both very fuzzy on what it is I actually own when I buy something. When I buy an Xbox game, did I buy the right to play that game, or did I buy the disc it comes on and the right to use what’s on the disc?
Questions are much simpler when the product is physical: If I buy a hammer, and it breaks, I don’t have a hammer any more. But if my physical copy of a video game breaks, *the game* isn’t broken.
In principle, I’m much more compelled to believe that buying a video game is akin to buying a license for other kinds of software: I have purchased permission to be a user, regardless of what device I use it on or which disc is in the drive.
However, while this is my perspective, I will honor the laws of the place where I live.
Phil Schneider says
Great thoughts, Andrew, and I want to think along lines of that “license” idea but it seems to break down in a few ways. At least, for me, it does.
First of all, the whole idea of a “license” is a relatively new idea. When the very first NES users purchased their game cartridges, they wouldn’t have any idea what I was talking about if I had presented them with this idea because they’d never seen a EULA before.
At the same time, if you are buying a “license,” can’t that license be revoked? Not to mention the fact that this “license” surely would tie your “ownership” to the means of enjoying the game you purchased, i.e. a cartridge, disc, etc, and not to future media.
This idea of “licensing” is actually what is being used (against us) with regard to the iTunes Store, Google Play, and Amazon’s Kindle Store. We’re not buying music, movies, books, apps, etc. We’re buying a license to use them. We don’t own these items; we only own the right to use them, so long as we live. We do not own them in order to sell them or will them away.
Does that make sense? Hope I didn’t throw you into a moral quandary.
Eric Dye says
When my kids Wii died a few years ago, it had several retro games that were purchased on the online store. Was I able to transfer them to the new Wii that was purchased to replace it?
Nope.
Even though I was pretty frustrated by it, understanding the licensing of games and music — as you mentioned to Andrew — it’s the nature of the beast, right or wrong. If you don’t want to play by the rules, don’t play the game…literally.
Phil Schneider says
A good reason for me to not invest more money in the Wii platform.
Sucks for you, though.
Eric Dye says
It did. #wahwah
Bevan Kay says
Does all this change if there is NO way to purchase the original game anymore? I don’t have any issue personally downloading an old Nintendo game that isn’t sold anymore because they aren’t making money off the game anymore, it is an abandoned product. If I buy the game second hand and legitimately own it the publishers aren’t making any money from me anyway.
Eric Dye says
Hmmmm…good question…
Phil Schneider says
That’s a very good question. It’s the one I asked myself at first, but I think it still breaks down when you look at it like this:
Say you own a large field that could be used for farming but is currently sitting fallow. Can I take your land and parcel it out?
Hmm. Maybe I need a better example?
Say you wrote a song, sold a record, made some money, and then essentially retired. Your song fades in popularly and sales hit zero. Can I go and take your song and give it away for free?
Not trying to browbeat. This is just the stuff that went through my head. As a writer, I wouldn’t want an old blog post or old poem taken and used just because it seemed like I wasn’t using it.
Bevan Kay says
I considered the same thing with songwriting. I believe the rules there are that the song becomes public domain 70 years after the original copyright holder passes away. As gaming technology moves at a faster rate and publishers abandon the sales of games quicker than music or literature I feel that they become ‘abandonware’ as such. I guess this raises an interesting question in to whether or not games at some point should roll over to public domain?
I am 20 years old and I never had the opportunity to play or purchase games from the early 90’s. The original publishers and creators don’t have any potential for monetary gain so I would hope they would be flattered by the fact that I wish to play their games.
Phil Schneider says
I think that’s a great point, but for clarity and safety’s sake, we really need a legal definition of “abandonware.” We need something that dictates if/when software enters the public domain (becomes open source), which I don’t think we’ll ever get, though we can hope for it.
Kevon says
I think the question of ownership versus licensing is a vital one this discussion. Those games weren’t made in the era of digital rights. Who has more rights over the content, creator or purchaser?
I think purchaser to an extent. I believe that the purchaser has the right to do what he wants with the cartridge he bought as long as it does not infringe upon the rights of the creator. That includes digitizing its contents for personal use on whatever platform he wishes.
I don’t think these rights extend to making a download of the ROM file readily available to anyone on the net. There’s something noble in wanting to make a digital copy available to all those unable to extract and convert data from their own Super Mario Kart cartridges, but I might be a bit too cynical to believe that’s the sole intent. The sites that offer ROMs such as these are currently seedy, ad-ridden websites that operate in the back-alleys of the internet. That should immediately throw up a red flag for us. If it looks like a morally-questionable duck and quacks like a morally-questionable duck, it’s probably a morally-questionable duck.
Phil Schneider says
Fantastic point! If I remember correctly, it’s totally legal to rip your DVD’s and CD’s…so long as you never share/sell them.
Always be aware of the morally-questionable duck.
Eric Dye says
I think that may be untrue. ANY unauthorized reproduction is prohibited…
Phil Schneider says
Hmmm. I thought that ripping the item on a digital device was allowed and making a new physical copy was the gray area.
Kevon says
The anti-piracy splash screens on DVDs or warnings in game/CD booklets typically say that “[a]ny unauthorized reproduction… is illegal.” It doesn’t leave any breathing room for innocent intent.
Eric Dye says
Right. That’s what I was thinking, too…
Phil Schneider says
Hmmmmm. You’re right, of course, but I’ll keep doing it.
Eric Dye says
Hmmm. Confusing…
Kevon says
For better or for worse, you’re right.
What I should have typed is, “I believe that the purchaser should have the right to do what he wants with the cartridge…” Were older media such as NES or SNES cartridges sold with such legal disclaimers? Was video game piracy even a thing at that point?
Also, I think Nintendo’s current practice of re-releasing older games on the Wii U’s Virtual Console may give them some claim to “future profits,” if that’s even a thing.
Phil Schneider says
I don’t think that disclaimer existed early on, but I’m sure it came in at some point in the cartridge era as computers evolved.
Kevin @SiteWizardLLC says
I’m not sure whether the “digital backup” argument would stand up in court. I’m curious whether there is legal precedent on the issue. But according to Nintendo, “it is illegal to download and play a Nintendo ROM from the Internet.”
Nintentdo lists legal policies on their website, and they talk a lot about this subject: http://www.nintendo.com/corp/legal.jsp#roms
A few excerpts:
Sorry to spoil your fun! Maybe you can buy a NES on eBay. 🙂
Phil Schneider says
Wow, thanks for lowering the boom. 🙂 But am I correct, Kevin, in that if I—which I cannot—rip the ROM of the game I own, and play it in an emulator that I build, I’m ok?
Kevin @SiteWizardLLC says
I’m not a lawyer, but being the owner of a software / web design company, I’ve had to learn a bit about copyright issues. If I understand correctly, I believe that a backup copy is supposed to be an unaltered equivalent item. For example, I believe it’s okay to record a vinyl record (music album) that you own to your computer or a CD. However, it is not okay to borrow your friend’s CD of the album, make a copy, then claim that you have a license to the content because you own the vinyl record. That’s just my understanding, but I could be wrong.
In a similar fashion, I believe that the only backup copy of a video game that is legal is one that preserves the original medium so it can be used on the same platform. That is pretty straightforward if you purchased a game on a CD-ROM or DVD. But Nintendo games pre-date those technologies. In order to reproduce the old Nintendo cartridges, you’d need to make a replica of the cartridge which works on the original console. Of course, you’d need to reverse-engineer Nintendo’s cartridges and game system (NES), and that reverse engineering process is illegal.
Perhaps the bigger issue here is that creation of an emulator involves violation of patents and intellectual property. After you create your emulator, you have to reverse engineer the cartridge reader along with software to download the data to a computer. When you’re done, you can try to argue that your illegally-obtained copy is a legal “second-copy backup.” It’s not really an equivalent backup because you’re using it on an iPhone, not on a NES console.
BTW, I don’t think Nintendo is really chasing down consumers who are using emulators on their phones. Their bigger concern would be the people who create emulators and distribute ROMs. You probably won’t get in trouble for having Super Mario on your phone… unless you blog about it to the world. 🙂 Definitely don’t post the link to download ROMs.
On a related note: After reading your article today, the Google AdSense banner ad network (used across many websites including Pandora) started showing me ads for “Report Software Piracy Now!” Apparently “The Software Alliance” (nopiracy.org) offers cash rewards if you report piracy and they recover a settlement. The reward is only “up to $5,000” on a $100,000 settlement, so I haven’t decided whether it’s worth reporting you. 😛
FYI – The Wii (first generation) has a “virtual console” where you can buy many of the classic NES and SNES games for $5-10. If you don’t have a Wii, you can find them on eBay for $65. I think that’s a safer way to get your nostalgia fix.
Phil Schneider says
Ha! Great stuff here, Kevin. Sounds like we have a definitive answer here: No. 🙂
To clarify, though, I deleted the app after this article was first published and have no desire to go back. For moral reasons, yes, but also because NES games require tactile sensations to be truly playable/enjoyable. It was so hard to run in Super Mario without feeling the edge of the B button digging into my thumb. 🙂