Chris Hugelmann is a 3rd year PhD student in the Communication & Culture program at Ryerson University. He has a Master’s degree in user experience / interface design, and his research looks at how norms and restrictions around ideas like identity and community are created and reinforced within the in-game interfaces of online games.

Introduction

Many types of media content reside in discrete digital files which are streamed, cast, or downloaded via numerous platforms and applications, enabling consumers to watch, play, or otherwise engage with digital media in an increasing variety of ways. Digital piracy, or the “unauthorized copying and distribution via the Internet … of intellectual property” (Phau & Liang, 2012, p. 741), has become a significant issue in the digital game market, with estimates of lost revenue within the USA and Canada alone reaching $3.5 billion per year (de Weck & Mawad, as cited in Holm, 2014, pp. 61-62). Digital versions of books, music, or digital games can exist as perfect content copies (Lessig, 2006, p. 115), able to be duplicated and disseminated in ways that were not intended by the original distributor. Despite digital piracy arguably becoming an “everyday cultural [practice]” (Lindgren & Linde, 2012, p. 152), it is an illegal act under current Canadian copyright law. Copyright and intellectual property laws, which historically governed physical, tangible objects, must now be converted and translated (Lessig, 2006) to consider digital objects in order to reduce the occurrence of piracy and to protect content producers. The current discourse surrounding piracy often fails to properly address many legal and cultural issues. Preservation, for instance, becomes contentious, as this requires individuals to rip the game code from the read-only memory (ROM) of video game cartridges. These ROM files offer the potential for creativity in gaming communities—through altering, updating, etc.—and these potentialities are being stifled due to the illegal nature of their initial retrieval (Newman, 2013). Emulation, where a computer reproduces the software of the game system and a digital game file’s ROM is then run, is in many cases the only viable way of preserving and playing old and hard to find video games, despite the unauthorized ways in which they are acquired.

In this essay, I argue that video game producers and publishers, especially those with proprietary consoles (e.g. Nintendo, Microsoft, and Sony) are actively working to divert the flow of pirated video games via ripped ROM files by rereleasing out-of-print games within their own virtual consoles and platforms. These virtual consoles act as a marketplace for capturing profit and as a platform to emulate the games, where players are allowed to run and play physically discontinued video games. While they offer a legitimate alternative to piracy, the company’s emulators can restrict the ways in which these games can be played and modified from their original instantiation, limiting the types of emergent behavior that has been consistently shown in the modding and hobbyist communities. As I argue, this can be seen as devaluing the ownership that players have over these games, since ownership of physical media allows for a wider range of experience with the game, through acts such as sharing with or lending out to friends. The one-time payment method of products has now been usurped by monthly payment plans to continue to have access to the digital versions of these games. If the subscription to the service ends, so too does the users’ permission to play. Thus, producers and publishers are troubling notions of property as digital marketplaces move these games from owned, physical products to licensed, digital code with many restrictions placed on their usage.

eShops and virtual marketplaces: Legal emulation with additional costs

An increasingly popular trend amongst video game publishers is the digital marketplace platform that allows users to search through a library of digital games available for download without relying on physical media. These marketplaces offer not only current games at discounted rates, but also older generation games. The largest library of older video games belongs to Nintendo, with a collection spanning back to the 1980s with the original Nintendo Entertainment System (NES).

Retro gaming has been a cause for concern within digital piracy studies, as it resides in a “moral gray area” that tends to be “more ambivalent toward piracy than other gaming groups” (Downing, 2011, p. 751). With many older titles far outside the monetary reach of many consumers due to perceived value based on their rarity, pirating a digital copy would allow them to experience certain “essential games” and uphold their identity as a “real gamer” familiar with these cultural staples (p. 757). Similar to Bourdieu’s notion of cultural capital, Consalvo (2007) describes “gaming capital” as a dynamic currency shared between players with regards to “gameplay as well as the evolving game and paratextual industry” (p. 4). The push-pull dynamic between players and the gaming industry can create an apparent necessity to play these games. As players deem them useful or essential to their identity, the gaming industry reacts by releasing or remaking these games for a new audience. While authenticity is important both in terms of identity and in regards to the games themselves, virtual marketplaces necessitate the player to use the product within specific parameters. Often, this requires a monthly subscription to a service that allows the user to play the games (usually through a proprietary emulator provided by the game publisher), reducing the notion of ownership of games to simply licensing them for a duration of time. Through this, one is not allowed to edit, remix, alter, reproduce, or redistribute the game in any way.

One of the most prominent of these virtual marketplace and digital distribution services is the Nintendo eShop, which not only offers digital games from recent consoles, but also allows users to buy digital games for the Virtual Console (Nintendo, n.d.). The Virtual Console is Nintendo’s own emulation software that allows for the replayability of older games through a legitimate medium. This may be a viable option for individuals who would like to play something obscure, such as Double Dragon III: The Sacred Stones (Technos Japan, 1990). In this case, the player pays around $5 for a digital version of a game that would run upwards of several hundred dollars in new condition. In other cases, games may only be available for a predetermined amount of time, such as the life of a monthly subscription to an online platform service like Sony’s Playstation Plus. This further devalues player ownership, as they do not own the software and it is only available to them with continued payment. In many cases, this also requires a constant Internet connection, used to verify the player’s subscription through digital rights management (DRM), in order to play digital games. Additionally, Nintendo is moving away from a one-time payment for older games on the Virtual Console in favour of subscription-based payment, as well as curating the list of games that are available to players—further limiting the freedom of choice that users previously had, while also revoking access if payment does not continue.

With these costs in mind, the user is limited in many ways as to how they can use their digital games. In some cases, the game will need to be purchased twice to accommodate playing it on more than one console, such as buying Earthbound (Ape Inc. & HAL Laboratory, 1995) via the eShop on the New Nintendo 3DS to play it portably. Unlike its physical media predecessor, it cannot be traded or swapped, loaned or borrowed by others, furthering the distinction between physical, owned property, and digital, licensed objects. Aigrain (2012) positions this as “access without rights to share” (p. 59), where there are hard-coded differences within the digital objects that distinguish between what types of access are allowed, as well as what type of usage is sanctioned. This becomes a reconsideration of what it means to own something in the digital realm, as products and services become increasingly experienced online or through digital means. Nintendo’s Virtual Console versions of its games offer limited to no ability to alter the ways in which you play, such as playing with specific controllers, button layouts, or graphical settings. Additionally, there are stipulations for play placed on these games: Earthbound (Ape Inc. & HAL Laboratory, 1995), as well as other SNES games, are only playable on the New Nintendo 3DS lineup of portable consoles, meaning a player with a DS, or even an older model 3DS, is unable to access these games.

While the library of games offered on Nintendo’s Virtual Console is relatively extensive compared to other game publishers, it does not cover the entire library of past games. Thus, some games remain inaccessible for some players, as physical versions are often too expensive and there exists no legitimate way to purchase them digitally. This could push users to look for devices to play pirated games in the manner they would prefer, given that the “market demand for piracy continues to be … the primary reasons for the existence of these [modding] devices” (O’Donnell, 2014, p. 748). Lack of access can make piracy a normalized cultural practice (Lindgren & Linde, 2012), where game publishers lose out on compensation for their intellectual property. Many digital piracy authors posit that this type of thinking and behaviour fall within the theory of neutralization (Phau & Liang, 2012, p. 743), where illegal acts are justified in some way, such as through the reasoning that the mainstream games industry is so large and profitable that developers will not even notice the monetary loss caused by piracy. According to Caraway’s (2012) survey regarding file-sharing, there is a strong monetary motivation for individuals to pirate information which causes copyright holders to lose out on potential sales, where “unavailability in local markets” (pp. 568-569) is a compelling reason for piracy. Interestingly, Mother 3 (Brownie Brown & HAL Laboratory, 2006), the final entry in the Mother series, has never been released in North America; instead, players must use an unlicensed fan translation, distributed solely online via a patch file that needs the original Mother 3 ROM to play it.

Despite the availability of some older games within eShops and virtual marketplaces to curb illegal video game piracy, mitigate losses, and offer products to users, limitations placed on the user may be a motivating factor for downloading games illegally. While many scholars of digital piracy take an economic approach by underlining the value of missed sales (Brown, 2014; Downing, 2011), it is important to also analyze how players are affected as well as their reasons for piracy by utilizing more qualitative analysis from authors like Caraway (2012), Downing (2011), and Vida et al. (2012). It is important to consider not only the larger entities like developers and publishers, but also bring the consuming individual back into frame, as this allows for a more nuanced understanding of the issue.

Subsuming content creation and regaining value: The case of Super Mario Maker and ROM hacks

ROM hacks have been a mainstay within the retro gaming and ROM community. With the recent uptick in rereleases and high-definition remasters, being able to capture the nostalgia-enthused market has arguably become an objective of game producers and developers. Furthering the notion of lost sales, attempts are being made by game developers and publishers to recapture and profit from the experience that had been created through altering the original ROM file for Super Mario World (Nintendo Entertainment Analysis & Development, 1990) to create ROM “hacks” with new scenarios, gimmicks, and so on. The ROM hack utilizes code from the ROM and allows for interesting changes and creative license to take a game in new, innovative directions. Many examples exist that take the original ROM file and alter it into a transformative experience or even an artistic piece, such as Super Mario Clouds (Cory Arcangel, 2002). In this example, the player is met with an entire screen of the sky and clouds from the original Super Mario World with no enemies or objectives, vastly altering the original gameplay affordances. Some ROM hacks, like A Super Mario Thing (Talkhaus, 2016), take the general game mechanics of the original ROM and leave them intact, instead altering the game art, difficulty curves, and otherwise implementing new features not found in the original.

While many ROM sites that offer a way to engage with these “classic” or need-to-play games have been taken down for copyright infringement, there has been an increase in game releases that allow for user-generated content (UGC). Through UGC, game developers rely on the players to add content to their games, showcasing UGC as a mechanic, rather than unpaid labour. This is most pronounced in the game Super Mario Maker (2015), which shares a plethora of similarities with ROM hacks of Mario video games. Super Mario Maker allows the player to design their own level, with a choice of enemies, items, and so on. These options are taken from the many different Mario games, meaning a player can use the Super Mario World Mario sprite but encounter enemies from New Super Mario Bros. (Nintendo Entertainment Analysis & Development, 2006). Players are no longer limited to the use of built-in game affordances, but instead can use other sprites and items that would not normally be offered to alter the gameplay. This is exactly what ROM hacking allows for: new and innovative ways to play familiar games through altering the code that underlies the game itself. Nintendo, it seems, understood the creativity inherent in ROM hacking and worked towards capturing UGC in a way that would benefit the company. This is particularly noteworthy, as Nintendo has historically been against ROM piracy, shutting down many repositories that included Nintendo ROMs. By creating a way for players to design their own levels within a Mario game without needing external ROM files, Nintendo could utilize the player’s work as a mechanic and a selling point for the game itself. Thus, not only does the game replace the ROM hack as a site for creative explorations of game code, it also becomes a platform with UGC and labour as a necessary game mechanic.

Concluding thoughts

As has been showcased through this paper, game producers and publishers continue to actively reduce the flow of pirated and illegally shared games not only through code built into certain titles—such as DRM on more recent games, or copy protection on physical media games—but also through digital marketplaces for older, out-of-print games. While these digital marketplaces offer an emulated experience of older, nostalgic games, they limit the freedoms of the user in many ways that would not be the case for physical versions. As such, these virtual consoles offer a new revenue stream to those seeking legitimate digital copies—as copyright laws prohibit users creating digital back-ups themselves—ultimately capturing a market of gamers who are nostalgic or want to increase their social capital, all the while inhibiting the potential usage of these digital objects. With the recent uptake in rereleasing, updating, and generally remonetizing older video games, it will be a worthwhile research endeavour to examine how this will affect piracy communities that provide digital versions of older games and how the closed-off coded spaces of virtual marketplaces will alter the ways that people use and play games. Ultimately, piracy studies, and specifically game piracy studies, is an underdeveloped but growing field of research with numerous legal and technical areas to explore to better understand the causes and consequences that piracy and its potential solutions have. As information flows continue to change with new and updated technologies, so too will the mechanisms used to grapple with piracy need to change.

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Ludography:

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