In July 2018, Nintendo commenced legal proceedings for copyright infringement in the US District Court for Arizona against the operator of two ROM sites for classic computer games. This represents an escalation in litigation strategy for Nintendo from previous approaches of sending targeted take down notices or cease and desist letters to the operators of such ROM sites.

ROMs and emulators

Classic or retro gaming is a popular activity. People use ROMs to create and distribute classic computer games in a convenient format where either the consoles or the game cartridges etc. are no longer commercially available. A ROM image or ROM file is a computer file that contains a copy of all the data from a Read-Only Memory chip (such as a video game cartridge for a console). Special software referred to as an emulator can run the data (play the computer game) on a computer.

Action taken by the computer game developers

The creation and distribution of a ROM file for these purposes is generally accepted as being a clear infringement of copyright. Some computer game developers have pursued these infringing activities vigorously, even though they no longer sell the games in question (and thus are not losing any direct revenue in this regard). Nevertheless, the developers’ goodwill and IP can be diluted as a result and customers may choose to use ROMs rather than buy their current products.

Nintendo’s lawsuit described the defendants (LoveRoms and LoveRETRO) as “built almost entirely on the brazen and mass-scale infringement of Nintendo’s intellectual property rights. The LoveROMs and LoveRETRO websites are among the most open and notorious online hubs for pirated video games.

Nintendo sought hundreds of thousands of dollars in damages for each infringement of its copyrighted games as well as $2 million for the infringement of each of its trademarks. This action led to the closure of LoveRETRO; and has since caused other ROM sites to remove access to Nintendo games.

Nintendo’s actions have prompted a public outcry. The Video Game History Foundation founder Frank Cifaldi tweeted: “ROM sites shutting down only feels as big as it does because of the completely abysmal job the video game industry has done keeping its games available. There is no alternative BUT piracy for like 99% of video game history.”

“The pirates are the only ones keeping these games alive, both literally and metaphorically: they are the ones who saved the code, and they are the ones who keep them accessible so that people remember them.”

Nintendo has sought to justify its robust litigation stance on its website:

“The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers. As is the case with any business or industry, when its products become available for free, the revenue stream supporting that industry is threatened. Such emulators have the potential to significantly damage a worldwide entertainment software industry which generates over $15 billion annually, and tens of thousands of jobs.”

https://www.nintendo.com/corp/legal.jsp#helping

Comment

Nintendo’s vigorous action is a warning to anyone that posts copyright materials online without a licence.

Some commentators have lamented the lack of a “Netflix” for classic computer games, where users could subscribe monthly and have access to a library of classic computer games under licence from the game developers. The developers who would then share the revenue with the operator of the platform.

Computer game copyright has led to other thorny issues. One is whether a developer can restrain a YouTube or Twitch streamer from streaming themselves playing the game in question, on the basis that this is a public performance of a copyright work.

Another is whether developers can control a tournament involving a computer game – again as a public performance – in the same way that a playwright can control public performance of a play it wrote. By comparison, it is not possible to restrain a tournament of (say) Scrabble or Texas Hold’em on this basis as playing the game is not an act of copying that copyright protects (as with reading a book or baking a cake following a recipe) – it is the visual elements of the computer game that create the possible distinction.

For more information or advice on IP infringement, please contact Nic Ruesink-Brown nic-ruesink-brown@steerandco.com.