As you probably already know if you are coming across this article organically Nintendo has a history of DMCA takedown notices against websites and individuals that they believe are infringing on their copyrights. This includes websites that host fan-made content, roms, emulators, and individuals who stream Nintendo games.
Some of these actions are perfectly understandable. You obviously don’t want individuals stealing your intellectual property and distributing it without consent or being compensated.
There are a couple court cases that exemplify what is legal and what is not when it comes to ROMs and Emulators in the United States. In 2005, the Ninth Circuit Court of Appeals ruled that it was legal to create and distribute emulators for game consoles. This is not considered infringing on the copyrights of the manufacturer because the emulators do not contain any of the copyrighted code or data from the consoles.
ROMs, however, are copyrighted material and don’t have such protections, which seems to make sense or be common sense, but just in case there is a legal precedent. The Second Circuit Court of Appeals ruled that Nintendo of America, Inc vs LoveRoms that it was illegal to download ROMs of copyrighted video games in 2013. This is because they are using copyrighted work, reproducing and distributing it. There are arguments for downloading ROMs no longer in circulation but there isn’t really an established legal precedent from what I can find.
Okay, we have established the baseline for what is strictly legal and what is not, when it comes to ROMs and Emulators. Let’s hop in and explore some of the gray areas. Fan made games are a favorite in the modding community and are often responsible for breathing new interest and life into otherwise old or retired titles.
Fan Made Games
On Cbr, Samual Williams published an article, “Nintendo’s 10 Most Infamous Shutdowns Of Fan Games”, where 10 takedowns establish a pattern of Nintendo attacking their fan base. Pokenet, (AM2R) Another Metroid 2 Remake, Full Screen Mario, Zelda Maker, No Mario’s Sky, Ocarina of Time 2D, Zelda 30, Pokemon Uranium, Super Mario 64 HD, and 379 other fan made games on GameJolt were all taken down. Legally these are all made off of Nintendo’s IPs and so Nintendo is legally able to stop these creations. Ethically, I think these people put in a lot of effort for the love of Nintendo and Nintendo’s IPs and should be celebrated. They should be celebrated by Nintendo!
Influencers
Nintendo also seems to take this tone-deaf approach with streamers Alanah Pearce was banned from Twitch for streaming publicly available and Nintendo approved Zelda footage. Linkus7, one of my favorite speedrunners along with a list of others, were banned for streaming Hyrule Warriors: Age of Calamity a few minutes early. Zelda Dungeon was banned from Twitch for Streaming Breath of the Wild 2 footage. Summoning Salt, who makes videos dedicated to speedrunning history, was banned from YouTube for uploading a video about Super Mario Bros Speedrunning leaderboard. These are some of the things that really make Nintendo look bad and are hard to reconcile. These are your number one advocates and are dedicated fans that also sell you more games.
ROMS and Platforms
I find myself sympathetic with Nintendo when it comes to the ROM sharing community because those are their actual IPs and actual copyrighted material. I don’t find the same level of sympathy when it comes to issuing take downs to platforms that allow videos and streaming. In 2016 Nintendo issued a DMCA to Twitch and in 2017 to Youtube, for essentially recording or live streaming gameplay. This likely will produce animosity with your fans, but also will decrease sharing of what your games have to offer and thus reduce your relevance among video game enthusiasts.
I also find myself sympathetic when businesses use Nintendo’s iconography for their own gain. SteamGridDB that creates custom icons for Steam games was issued a DMCA takedown and it is at least understandable, even if unnecessary and reactionary. Nintendo should probably not be concerned with these types of things, because this is essentially free advertising for their platform, but I understand.
Emulators
Creators of emulators have long been a target of Nintendo. In 2014 they went after Project 64, emulating the Nintendo 64. In 2019 they went after Dolphin that emulates the GameCube and Wii. These two have been able to stand on their own despite Nintendo’s efforts and aggressive stance on what they believe is copyright infringement. Skyline Emulator, for Android seems to have stopped development after a take down notice from Nintendo in 2020. Other emulators have been attacked in the past, some have crumbled under the weight of Nintendo and others are still available.
Dolphin
Dolphin was able to get a spot on STEAM, the largest PC game platform, but that success was short-lived because recently Nintendo issued a DMCA in Late May of 2023. On their website they issued this statement.
Now this hasn’t faltered Dolphin’s development, but it has slowed their distribution. I look at being able to play some of my favorite Nintendo games that I own from the past and going forward, on my PC as a good thing.
In Conclusion
Nintendo has every right to protect itself from copyright infringement. So illegally distributing ROMs or games or software that belongs to Nintendo should be stopped and punished. All of these should be purchased and distributed through legal channels approved by Nintendo. Emulators, however, should be allowed to operate and develop. So individuals can take their games and play them however they see fit.
As far as fan made games goes, I don’t think Nintendo should go after them even though they have the right to. The exception would be if the people who make them are doing it for profit. I personally hope, Dolphin is able to make it back to Steam, but I am not holding my breath. I’m not a dolphin and I can’t hold my breath that long.
Thanks for reading, let me know your thoughts in the comments.
Best Chris