If Nintendo isn’t obligated to preserve games, we’ll do it ourselves

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As I read Nintendo’s FAQ page about the 3DS and Wii U eShop closing, I accepted the hard truth I always knew, but never wanted to admit. Nintendo is actively fighting game preservation.

“Once it is no longer possible to purchase software in Nintendo eShop on Wii U and the Nintendo 3DS family of systems, many classic games for past platforms will cease to be available for purchase anywhere,” it stated. “Will you make classic games available to own some other way? If not, then why? Doesn’t Nintendo have an obligation to preserve its classic games by continually making them available for purchase?”

Nintendo’s answer was cold: “Across our Nintendo Switch Online membership plans, over 130 classic games are currently available in growing libraries for various legacy systems. The games are often enhanced with new features such as online play. We think this is an effective way to make classic content easily available to a broad range of players … We currently have no plans to offer classic content in other ways.”

I couldn’t make this up if I tried. Nintendo fans have always known how anti-preservation Nintendo is, but seeing the company specifically bring up this issue in an FAQ – as if to attack the critics they knew they’d hear from – was shockingly overt. This wasn’t a question about piracy, which would be expected from a corporate response. Instead, Nintendo outright denied the obligation to preserve games.

Although the section was deleted from their website, the internet never forgets. Nintendo isn’t just against emulation: they’re against art preservation itself.

If I haven’t made it abundantly clear in my last few articles, the root of all evil in the game industry is capitalism. Players and developers recognize games as the art they are, but to large companies, they’re just products. That’s why so many games are made with invasive monetization, and developers are rushed through toxic working conditions to meet financial quarter deadlines.

I give praise where it’s due, which is why I hold Nintendo’s developers and their games in such high regard. Their working conditions and new releases are some of the industry’s best. However, Nintendo as a company is much more deserving of criticism. There is no better example of Nintendo viewing its games as products than the company’s draconian views on accessing legacy content.

Photo contributed by Nintendo.

Any Switch Online subscriber can point out discrepancies between the buzzwords Nintendo describes the service with and how it actually works. I struggle to call the online play an “enhancement” when “Mario Kart 64” races stutter enough that the audio sounds like screams of the damned. If you’re buying it purely for the games, Switch Online’s quality and quantity are leagues worse than Microsoft and Sony’s offerings.

Switch Online’s “various legacy systems” – all four of them – only feature a curated selection of 20 to 70 games per console, and the N64 and Genesis games are locked behind the overpriced Expansion Pack, which adds $30-35 depending on the subscription plan. The library is mostly NES and SNES games, which are already extremely well-preserved. Unfortunately, even those games will eventually become inaccessible through Switch Online subscriptions.

The Wii, Wii U and 3DS featured the Virtual Console series, which sold games individually for far more retro consoles. Virtual Console will no longer be purchasable after the eShop ends its service, but for the foreseeable future, you can at least redownload purchased digital titles. The same isn’t true for Switch Online games. When Nintendo sunsets Switch Online like the eShop before it, they’re gone.

Subscription services can supplement preservation by providing easy access to consumers, but they must never replace physical and digital ownership. Not only will the games disappear, but Nintendo chooses what games get preserved in their own Disney Vault, which is already enough of a nightmare for digital-only releases. One company shouldn’t control which games can or cannot be legally accessed.

Fortunately, there’s a way to access these games legally: emulation. Despite the industry framing emulation as a conduit for piracy, emulators themselves are completely legal when they use their own reverse-engineered code to run existing games, such as the open-source Dolphin emulator. Fanmade emulators even improve on Nintendo’s services, like having online play long before Switch Online.

The games themselves place emulators in legal gray areas; downloading or selling game files is illegal, but you can legally dump files from your own personal copies. However, even legal use is vilified by industry giants like Nintendo.

“As a paying member of the Entertainment Software Association, Nintendo actively funds lobbying that prevents even libraries from being able to provide legal access to these games,” the Video Game History Foundation said in a tweet condemning Nintendo’s choices. “Not providing commercial access is understandable, but preventing institutional work to preserve these titles on top of that is actively destructive to video game history.”

As the general public starts respecting games as an art medium, history repeats. The Atlantic reported in 2013 that 75% of early silent films were permanently lost due to cheap film reels being destroyed or improperly preserved. Game systems and cartridges are more durable than nitrate film reels, but eventually, all physical media wears away. We can preserve games as digital files, but the industry fights against it.

This problem isn’t exclusive to older titles. German copies of “Pokemon Omega Ruby and Alpha Sapphire,” released in 2014 for the 3DS, reportedly had high cartridge failure rates as early as 2021. If we don’t preserve history now, we won’t just lose ancient games. We’ll lose recent games that we could’ve easily protected.

Thankfully, not all major game companies are fighting preservation. Microsoft strives for backwards compatibility with the Xbox Series X, which can play thousands of original Xbox and Xbox 360 titles. Phil Spencer, the head of Xbox and CEO of Microsoft’s gaming division, encouraged the industry to accept emulation in an Axios interview.

“My hope (and I think I have to present it that way as of now) is as an industry we’d work on legal emulation that allowed modern hardware to run any (within reason) older executable allowing someone to play any game,” Spencer said. “I think in the end, if we said, ‘Hey, anybody should be able to buy any game, or own any game and continue to play,’ that seems like a great North Star for us as an industry.”

The solution isn’t suppressing legal emulation, but instead offering better emulators. Although the audience for Nintendo’s legacy content is absolutely there, fan emulators have better performance, stability, online play, controller mapping and wider libraries. Unlike Switch Online, they don’t corrupt your save file when you play “Paper Mario” with the wrong partner. If the company wants to treat games as products, then Nintendo should get competitive and improve said products.

Perhaps Nintendo should partner with emulator developers, which companies like Capcom have found success with. Unsurprisingly for those familiar with preservation, Capcom’s choice to outsource “Mega Man Legacy Collection” to Digital Eclipse resulted in the gold standard for retro rereleases. Digital Eclipse’s head of restoration, Frank Cifaldi, is famous for his archival efforts and directs the Video Game History Foundation. To use a colloquialism: “Nintendo, hire this man.”

I expect to say more positive things about Nintendo in the future – don’t be surprised if my next article gives “Kirby and the Forgotten Land” glowing praise. I remain critical of the company even if I enjoy their games, however, and I will always remember glaring issues like this. Even if I lack the skills to directly aid preservationists, I can do my part by dispelling misinformation around emulation.

Emulators are legal and they provide legal ways to access games. More than that, however, they’re ethical. We are morally obligated to use these tools and save gaming history.

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Opinions Editor | + posts

Sean Mullins (she/they) is the opinions editor and webmaster for the Journal. She is a media studies major and professional writing minor at Webster University, but she's participated in student journalism since high school, having previously been a games columnist, blogger and cartoonist for the Webster Groves Echo at Webster Groves High School. Her passion is writing and editing stories about video games and other entertainment mediums. Outside of writing, Sean is also the treasurer for Webster Literature Club. She enjoys playing games, spending time with friends, LGBTQ+ and disability advocacy, streaming, making terrible puns and listening to music.