Preserving our video game legacy isn't piracy

On July 10, 2023, a study conducted by the Video Game History Foundation and the Software Preservation Network stated that “most classic video games are completely unavailable”, going as far as stating that 87% of them are currently unavailable.

This result comes from taking a sample of 1500 games from 3 legacy systems and counting the number of games available for purchase today. The goal of this study is to raise awareness about the availability of classic video games and urge lawmakers to create exemptions for libraries and preservation groups to ensure the preservation of our video game history. This goal is one that I fully support and is urgently needed. However, there are some concerns I would like to raise about the study and some associated trends I’ve been noticing in the gaming world in general. While the study is valid in the context of librarians, researchers, lawmakers and game publishers, I believe it is less relevant regarding the population segment for which this matters the most: people who want to play games.

“For accessing nearly 9 in 10 classic games, there are few options: seek out and maintain vintage collectible games and hardware, travel across the country to visit a library, or… piracy. None of those options are desirable, which means that most video games are inaccessible to all but the most diehard and dedicated fans.
That’s pretty grim!”

That is the part that I have a problem with. Where downloading any game from the Internet is equated with piracy. Notice the dramatic pause before the word, as if it’s something they would barely bring themselves to say. In other words, getting a ROM for a C64 game from a defunct publisher is just as bad as downloading a Torrent for the latest AAA game. This conflates something that impacts the sales of a current title with something that impacts no one at all. I was mistakenly under the impression that this was dealt with 25 years ago, when people started talking about Abandonware, a legally gray area that encompasses games no longer distributed.

Instead of embracing the concept of Abandonware, some want to make us think that the only legitimate way to play classic games is to own an original copy of it. Even if you use an emulator, you need to have an original copy and provide your own ROM. Never mind if this only benefits a random person on eBay and not the original game developer – a random person who might profit from a game they didn’t create. If you want to play a game from your childhood, isn’t it more important that you or your parents bought the game then, when it mattered to the publisher? This school of thought would be the most disastrous for the preservation of video games. Physical media isn't eternal, even the most well preserved cassettes, floppy disks or game cartridges will fail at some point. This means all classic games would be bound to disappear, some of which may already have! Do we really want to build a future where we cannot show the games we grew up on to our grandchildren because of legal technicalities? Do we want those works to be gone forever?

At some point there won’t be a cartridge for Super Metroid for Super Nintendo to dump, no matter how overpriced. At some point, emulation will be the only way to experience most classic games. The process of oxidation, like time, can’t be stopped. In their digital form, games can however be preserved in perpetuity. If we were to wait until classic games fall under the public domain, it would already be too late. Thankfully, thousands of people haven’t waited and game preservation efforts have been ongoing since the early days of the internet. Initiatives such as TOSEC, No Intro or Redump maintain databases of known dumps of games and software for the vast majority of legacy systems. Similarly, MAME maintains Software Lists of many of the emulated systems. When we take into account the contents of these databases and not the commercial availability of a small sample of games from 3 systems then we are closer to 99% of games being digitally preserved. That’s way less grim than the 13% from the study. And we’re not only talking about video games here. All types of software released on past platforms are indexed along with the hashes of the files you need to run the software.

That isn’t to say that keeping games available commercially is a bad thing, quite the contrary. When given the change, I bought many classics like Doom, Quake, Unreal on Steam and bought them a second time on GOG. The first game I bought on the Steam Deck was Chrono Trigger, a Super Nintendo game. Especially when enhanced with features that bring those games to the modern age, re-releases, remakes and remasters are usually pretty great. But while they give games a new breath, they are not a replacement for the preservation of the original game media. Video game re-issues have been co-existing with ROM preservation for the last quarter of a century. Both have their reasons to exist.

While the Video Game History Foundation calls for lawmakers to create exceptions for libraries and researchers, I feel exceptions should be made to absolutely everyone. Creating artificial barriers to keep future generations from experiencing how video games came to be isn’t beneficial for anyone. Shoving everything under the same umbrella as “piracy” blurs the lines between what is potentially damaging for game creators and what is at worst, a victimless crime, if it can be called a crime at all. If we make an analogy with real piracy for a minute, piracy is when pirates attack a maned ship and steal the boat, the cargo and the crew (if they aren’t given a swim with the sharks). Exploring the wreckage of a sunken ship and discovering a lost treasure inside isn’t, in fact, piracy. Playing abandoned games feels a lot more like finding digital treasures than committing any act of piracy. The law hasn’t had time to adapt to something as recent as video games and emulation. Given the rapid evolution of gaming consoles, it’s essential to limit the definition of piracy to games and products that are currently being sold.

While the laws surrounding digital media preservation need to be updated, let’s not blow the problem out of proportions either. In over 30 years, I have never heard of individuals getting into legal trouble because they had downloaded a few retro games. Most of the time, and this is especially true for abandonware, no one cares. The website My Abandonware handles the situation very gracefully to only allowing downloads from games not sold anywhere, with the downloads replaced with a link to GOG or other stores when it can be purchased. As for the ROM sites, the ones legally targeted often provide actual pirated games, aka Nintendo Switch games. So why is there a bigger stigma surrounding emulation today than there was 10 years ago? Is it because some retrogaming Youtubers give the false impression that the only way to enjoy oldies is to hunt for more or less rare copies of games? Is it the corporate speech taking over and let people think that nothing can be enjoyed unless it is purchased? Is it because of emulator developers being overly cautious to avoid getting into any kind of legal trouble? The reason is uncertain.

What is certain is the dedication to video game preservation from the Lutris project. In the study cited above, there is one great absent: The Internet Archive isn’t mentioned anywhere. The Internet Archive is not only the greatest resource for exploring our gaming past but also the greatest resource for virtually any type of media that can be digitized. Instead of being valued as an essential resource to preserve our legacy, the Archive is once again being attacked, this time by the music industry. Now more than ever, The Archive needs as much support as it can get. If The Internet Archive were to disappear, it would not only be a devastating blow to Lutris and others who value old games and software but to society at large. If a majority of people agree that software preservation is important then we might see changes in the law regarding the status of digitized media. Large corporations are putting our cultural heritage at risk and the last thing we need is regular citizens siding with them. Support the work of game developers releasing games today while at the same time, making sure to keep your gaming history alive instead of letting it become a fading memory.