Nintendo lawsuit reveals the worst thing about game preservation

A recent lawsuit resulted in Nintendo of America winning $2.1 million after a judge ruled in favor of the Japanese company as part of a piracy dispute against website RomUniverse. RomUniverse was known for uploading and distributing pirated Nintendo games, and since the site’s owner Matthew Storman profited from subscriptions, it faced a severe breach of copyright infringement after Nintendo filed a suit in 2019.

While it’s understandable that the courts sided with Nintendo given the clear-cut evidence in this case, this situation has once again sparked a discussion about game preservation and how the Japanese giant makes it virtually impossible to play many of its most beloved classics on modern hardware. Which is to say Storman’s motives were valid even if his actions were deemed illegal.

Video game quality often evolves alongside technology. Despite this, many older games still hold up in 2021, and a slew of them come from Nintendo. The company has garnered a reputation for being a stickler when it comes to game preservation, however.

Nintendo does offer some of its older NES and SNES games through its subscription service for Switch known as Nintendo Switch Online, but the quality of offerings varies tremendously.

For every game of the quality of Super Mario Bros. 3, you’ll have several titles like Ninja JaJaMaru-kun, which never gained much popularity, especially in the West. Aside from that, Nintendo has left many of its beloved games from this era (and beyond) inaccessible on the Switch.

The odd thing is that Nintendo used to be a lot better about offering older games to consumers. The Wii, Wii U, and 3DS all had Virtual Console, which housed many beloved classics, allowing them to be purchased à la carte for a small fee. Virtual Console has been replaced by Nintendo Switch Online, but the results have been mostly disappointing thus far.

Sure, it would be nice to have access to Nintendo’s entire library of games via subscription service similar to Xbox Game Pass, but the community has been vocal about settling for individual purchases, too. The point is that players often resort to pirating Nintendo games not necessarily to circumvent the cost, but because the company just won’t sell us their older games for modern hardware.

Many players pirate Nintendo games because it’s not easy to get your hands on a SNES or NES system, along with a cartridge, and a TV that supports the hardware. Other companies like Microsoft make it much easier to digitally download older games on the newest hardware, setting a precedent for game preservation. Want to download and play The Elder Scrolls III: Morrowind, a game that came out in 2002? You can do that on Xbox Series X, thanks to backward compatibility.

If you want to play Earthbound, one of the greatest and most beloved SNES games of all time, you don’t have many options for getting your hands on it legally. Sure, you can buy a copy and get your hands on a Super Nintendo Entertainment System, which is an option, but when other companies make it so much easier, it makes Nintendo’s practices feel outdated. Plus, getting your hands on a working SNES isn’t easy, and it can be pricey.

The wish list doesn’t just stop at Earthbound. What about other beloved SNES classics like Super Mario RPG or Chrono Trigger? Not only that, but the community would love to be able to purchase Nintendo games that released afterward for Nintendo 64, GameCube, Game Boy, and Nintendo DS.

The thing is, Nintendo has such a rich history of games that are acclaimed, so it’s disheartening that a lot of them could be lost to time. Sure, it’s not hard to hook up a Wii and play games that launched for that console, but what about in 10 or 20 years when finding a working Wii isn’t so easy? The other troublesome part is that the Wii Shop has closed down, making it impossible to purchase any Virtual Console games on that platform.

We certainly aren’t advocating for piracy, but it’s telling that many consumers have opted to use sites like RomUniverse to get their old games when Nintendo won’t make them available to buy in the first place. It would be interesting to see how piracy would be impacted if Nintendo allowed its consumers to access a wider library of older games on Switch.

It’s not entirely clear why this doesn’t seem to be a priority for Nintendo, but the explanation could be simple: The company might not feel like it’s a profitable endeavor. After all, Nintendo is a business in the market of making money.

So, even if it wouldn’t require much effort to bring forth its older games to Switch, the investment might not be worth it. This is frustrating because plenty of gamers would relish in the opportunity to give Nintendo money to get what they want. For now, Nintendo has other plans.