There’s so much going on in the world now that Nintendo shutting down a pair of emulators doesn’t feel like such a big deal. It certainly was a big deal to many of us online, people who take an interest in games, but it’s not exactly a life-and-death situation in a world where life-and-death situations seem to be looming over us.
But it’s still an issue I’d like to talk about here, especially since it gives me the opportunity to talk more broadly about something I’ve never really addressed fully: the right of the audience to maintain and preserve media. Outside of the statutory public domain and a minority of works whose authors actively give up their copyright, this “right of preservation” is not a legal but rather a moral one stemming from the idea that the public has an inherent interest in preservation separate from copyright interests. The situation is further complicated because this moral right is advanced despite and in some cases in opposition to copyright holders’ legal rights, and legality beats morality every time, at least until Judgment Day comes.
I don’t remember why I had this Sumerian tablet in my library already on this site, but these guys’ records got preserved pretty well. But that was back when everything was written and could be baked into clay, not something a major solar storm can wipe out. (source, Marie-Lan Nguyen / public domain)
So Nintendo was almost certainly on solid legal ground in demanding that the developers of the Switch emulator Yuzu and the 3DS emulator Citra cease their operations. Even if they weren’t on solid legal ground, it hardly matters in a practical sense, Nintendo having far greater resources to file an international lawsuit than some guys making an emulator. There could have been no question about the outcome.
But what about the moral right of preservation? I don’t think this is a very strong argument against the takedown of Yuzu, which emulated a living and thriving console (though this will definitely change in the future) but then we have to consider Citra. Nintendo discontinued production of the 3DS in 2020, removed its 3DS eShop in 2023, and is scheduled today as of this writing to shut down the console’s online service with a few exceptions. With its two screens and 3D function, the 3DS already seems like a pain to emulate, making the problem of game preservation for the public benefit an even greater one in this case, and greater still thanks to its hundreds of digital-only titles in North America alone. Some of those games were shovelware crap, sure, but then not all of them were, and we can even make a good argument for preserving that shovelware given how subjective that call can be (and even if a game is widely considered to be garbage, does that really mean there can’t be any legitimate interest in preserving it?)
Loss of media thanks to copyright holder takedowns and discontinuations isn’t just a problem for the gaming community. The decline of physical media and rise of streaming services have forced movie and TV watchers into a wide variety of subscriptions that can easily end up equaling the cost of a cable plan, with the added benefit of getting to wait for Hulu or Netflix to stop buffering so you can actually watch the thing. And just as with eShops and similar online game vendors, what media gets hosted and what gets taken down is probably mostly determined by popularity and licensing costs without much consideration for whether it will still be legally available.
But then there’s that word legally. People have been getting around availability problems for decades now with torrents. Yes, this kind of filesharing is a violation of copyright law, that’s obvious. But it’s also obvious that a sizable part, maybe even a majority, of the audience doesn’t give a damn about legality in this case. And since the RIAA’s heavyhanded lawsuits against regular people back in the early 2000s for using Napster turned them into moneygrubbing bastards in the public eye, it’s now even more difficult for anyone to try to enforce that part of the law as long as people aren’t actually bootlegging and reselling the ripped movies or whatever (and do not take any of the above as legal advice of any kind. I say support creators, though exactly how much you want to support massive media corporations is a different question.)
That’s why I support indie games, that and their wholesome family-friendliness.
Copyright holders would argue back that this is all illicit activity whether the ripped media is being redistributed or not. But again, while they win in the court of law, they lose in the court of public opinion. Normally this wouldn’t be a problem for a group of multinational corporations — just consider BP and Exxon Mobil and every other hated oil and gas giant out there and just how little they need to care about being hated — but since entertainment corps have to care at least to some extent about how their customers think of them, this is a serious concern and must be one of the main reasons we haven’t seen aggressive litigation out of them over filesharing for 20 years. They can just ask Cary Sherman how that went for him.
If it’s true that these media companies need to consider public opinion, then they also need to be concerned over having so little moral authority that their audience doesn’t have serious qualms over piracy. I believe this is partly why public support for it is high online (and also not having to pay money, can’t discount that.) The fact that Nintendo and these other behemoths don’t acknowledge the importance of game preservation only further decreases that moral authority, even if, from a purely self-interested point of view, they absolutely shouldn’t acknowledge it. They uphold their copyright, and they have the money to enforce it — that lines up exactly with the advice I’d give if I were on any of their legal teams. This moral right of game preservation interferes with the copyright holder’s full rights in the work, including the right to withdraw it from publication and make it effectively unavailable.*
But I’d add to that advice a suggestion that they take a softer approach and listen to their audience. Speaking not even as a lawyer but just as a human, and one who doesn’t like getting ripped off and screwed, a hardnosed attitude won’t get these corporations anywhere either on or offline. Illicit or not, an angry audience will defy the copyright holders’ rights. When a manga publisher recently announced the use of AI tools to translate and localize a popular title, readers could credibly threaten to go back to fan-made scanlations. Anime watchers would be able to make the same threat, and gamers can as well. Emulators have been shut down before, but a few more spring up in their places when they go.
I should repeat that I’m not endorsing any particular action here. However, if you decide to take the less legally advisable option to watch your favorite show or play your favorite game, depending on the context behind that choice, I might not care at all, even less than if I had any personal interest in maintaining the copyright being ignored. Corporate policy, even if it was sound from the point of view of the media companies, put us in this position. Maybe if Nintendo and the rest met its audiences halfway, the audiences would at least mostly reciprocate.
We have a major example of this tactic working: while I’m not a fan of Apple or its products, the company had exactly the right idea with iTunes. Where the RIAA went after copyright violators with a hammer and ended up maiming themselves in the fight, Apple used a softer and far more productive method by giving people access to a massive music library at more affordable prices than you’d see at HMV and Tower Records, and the old style of filesharing rapidly fell off thanks to this new service.
For my part, I’ll keep buying physical when I can. I’m too old to think a digital-only library actually counts as a library, at least if it’s held on a platform that could collapse or shut down one day. But when physical copies are impossible to come by, maybe the publishers have a duty to correct that access problem. If they claim they don’t, or more likely just continue to ignore the issue, pirates will be only too happy to do it for them by cutting them out of the process entirely, and I don’t know many people who would regret that.
* Though I have a few big problems with Valve’s management of the platform, I’m happy we have Steam for this reason. Though every game you buy is still attached to that platform, so we’re all counting that it will never go down, and maybe that’s not much better.
Edit: I’ve been a real idiot the past few days, and this post caps that: I wrote about exactly this concept last year in the context of delisting and completely forgot about it. That’s where I posted that Sumerian tablet, in fact. I guess at least I was able to link that idea to Nintendo’s recent takedown of Yuzu and Citra, but still. Well, it’s not like I haven’t repeated myself on this site several times over anyway.
Everything is bad for you 