Gaming Literacy: Nintendo, Connectix, and a history of legal emulation

How do the NES and SNES classic run all those retro games? If you were hopeful that Nintendo was somehow recreating the hardware of their original consoles, prepare to be disappointed. The NES and SNES classic can exist because of one thing and one thing only: Emulation. The Big E. The term that we aren’t even supposed to talk about lest our entire industry fall under siege by pirates.

So what exactly is emulation, why do game companies hate it so much, and where does it fit into an official Nintendo product? 

Who Owns What?

Emulation has become something of a boogeyman in the gaming industry. Powerful companies take an extreme stance against the practice of emulating consoles. Nintendo themselves had this to say on their official legal corporate page: “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.”

Piracy is a problem in any industry. However, I think Nintendo and the companies that follow in their footsteps understate the value that emulation has for this industry. Frank Cifaldi gave a magnificent talk on this at GDC 2016, pointing out that Nintendo themselves benefit from emulation. In fact, if you own a virtual console version of Super Mario Bros., you are helping Nintendo profit from that emulation. As Frank Cifaldi said, the virtual console version of the game has something called an iNES header in its code. iNES was a very early Nintendo emulator and it ran ROMS in the .NES file format. The original code of Super Mario Bros. examined directly from a cartridge does not have an iNES header, but ROMS do, since this header was meant to tell the iNES emulator how to interact with the rest of the game’s code.

Frank Cifaldi posited that Nintendo downloaded their own ROM from the internet and then sold it back to you. Nintendo denies these claims, but there can be no doubt that the hex data of Super Mario Bros. on the Virtual Console and the data of any old ROM are, in fact, identical.

This is a hot button issue because of the rapidly changing way that we look at game sales. If you buy a piece of software, do you own that software? And if you do, do you own a code, or just the object that it comes on? If you own the code, then you should be able to make backups of the code at your leisure, and if you own the object it is on, you should be able to do what you like with that object. However, making backups of the code, or ROM dumping, is the core of emulation that so many companies fight against. Altering the object you own the code on would be considered modding, and outside of a PC gaming context most developers oppose this practice as well.

This has led some fans to claim that game companies aren’t actually “selling” us anything, but rather leasing out the rights for us to use their game for one intended purpose, with game companies retaining the power to revoke the rights whenever they like. In essence, we don’t actually own anything; we are just paying for permission to play on someone else’s property. Imagine an arcade where you can pay sixty dollars to have a special reserved cabinet, just for you. You can play on it, but the arcade itself can alter, remove, and restrict access to the cabinet as much as they wish.

Is this accurate? Well, the answer is unsatisfyingly vague.  Emulation is not and has never been illegal. Piracy is, but emulation and piracy are not the same thing. As Eurogmaer’s Chris Bratt says, “A video game emulator is, quite simply, a piece of software that allows one type of hardware to mimic the setup of another type of hardware. That’s it. That’s what it is. It’s a tool, nothing more.”

If you are a fan of retro PC games, then you are likely using emulators without even knowing it. Most older PC games are not designed for newer hardware or newer operating systems. For these games to successfully run, newer systems have to emulate older systems and run these games inside that emulation mode. This is why older game are so buggy on newer systems.

There is legal precedent for the practice of emulating console games on a computer system, and ironically enough it stems from a case concerning one of Nintendo’s rivals, Sony.

Connectix and the Legality of Emulation

First, let’s talk about a little company known as Connectix. Connectix was a company that routinely profited off emulation. Their virtual PC software allowed Mac users in the 90s to run Windows on their system. After the PlayStation released, the company decided to look into the possibility of creating a PlayStation emulator for Macs and actually selling it to consumers. The Mac gaming library was sparse, and being able to play the titles of what was then the most popular console on the market would allow it to fight against the much stronger Windows gaming market.

The problem was that their emulator, the Connectix Virtual Game Station, used a copy of the PlayStation’s basic input output system, or BIOS. This is essentially what allowed their emulator to read and process the code of a PlayStation game. Sony owned the code for the BIOS, so to make the product official, they would have to license the BIOS from Sony themselves.

Sony wasn’t having any of it. They denied the request to use their BIOS, which should have left the Virtual Game Station dead in the water. However, Connectix had a solution. They eliminated Sony’s BIOS completely and rewrote its functions directly into the emulator using C code. This code was completely distinct from the data in Sony’s BIOS. In fact, it was an improvement in terms of efficiency.

This brought up one of our first great legal questions about emulation. Does a company own the product it creates, the code it creates, or the very idea of the product it could create? In this circumstance, the Virtual Game Station wasn’t using any Sony product for their emulator, but nonetheless it allowed people to play Sony products. Legally, Sony would have to show that they not only own the rights over their BIOS, but any piece of code that could perform similar functions, and that’s not an easy legal fight.

Eventually, the Virtual Game Station did go to market, and it was a hit among Mac users. It was frequently updated and had incredible compatibility for an emulator of a current generation console. Connectix made sure that users could only play games using the original disc, so as to distance themselves from piracy, though users eventually found a way around their copy protection.

Sony did eventually take Connectix to court, but not until sales of the software already brought in over three million dollars. This brought a temporary halt to Virtual Game Station sales, which, of course, would have killed the product’s momentum in the market. However, this also caused pirates to pick up the software and begin distributing it. What was a legitimate piece of emulation software was turned into a piracy tool, largely because of the actions of Sony.

It was eventually ruled that it was not illegal to reverse engineer the Sony BIOS. None of Connectix’s code was copied from the BIOS and, more importantly, reverse engineering fell under fair use. This set legal precedent for emulation going into the future. Companies only own their code, not other code that can perform the same function.

That being said, Sony wasn’t going to allow the Connectix Virtual Game Station to stay on the market. If they couldn’t beat it legally, they would instead throw money at it until the problem went away. They eventually bought the Virtual Game Station product from Connectix. They then discontinued it.

It’s clear to see why major gaming companies dislike emulation. Emulation allows their games to be played in a manner that they don’t control. It’s also impossible to deny that emulation does open doors to piracy, and piracy does harm video game developers.

But it’s also worth it to examine what developers are actually losing here. If Nintendo really thinks that classic NES emulation is harming them, we also have to ask, how? Is Nintendo really making money from collectors that pay thousands of copies for a still working NES and a copy of Little Samsom? No. All that money is going to third party sellers. Meanwhile, jailbroken NES Classics became all the rage shortly after the NES Classic released.

Is emulation good? Is it bad? Honestly, it’s a little of both, and is something you have to examine on a case by case basis. One thing is certain, however: emulation, at its core, is not a crime, so instead of demonizing it for the fear of pirates, we should be looking at how to harness it for the good of all gamers. Heck, if it weren’t for emulation, we probably wouldn’t have much of a historical record of gaming at all.