Retronauts - Retronauts Episode 195: A History of Game Piracy

Episode Date: January 21, 2019

Chris Kohler joins Jeremy Parish and Bob Mackey to tackle the topic of piracy. It's not the same thing as emulation! But it's closely related? And it's bad! But it's important, good, and essential to game preservation!? There's a lot to unpack this week!

This week in Retronauts, you must delete this episode within 24 hours of downloading. So a patron request episode of Retronuts, this one going out to the one we love named Bobby Najari, who has requested that we talk about piracy. And not only are we talking about piracy, but you're talking about piracy because I put out a call for listener feedback and mail. And if you follow us on Twitter or read Retronuts.com, you saw this and probably responded because everyone on the internet responded. I have so many letters. We could just make this a mailback episode. But we do have things to talk about. Unfortunately, the people here in the studio with me today are good at talking.

That includes... Hey, it's Bob Mackey. And before you download this podcast, you have to vote for us in the top 50 podcasts of all time. That's right in the web ring. Yes. Many pop-up windows will open. Find the right one. And also here as an expert talker.

Hi, it's me. Chris Kohler, features editor at Kotaku. Excellent. So we're just going to jump right into this episode because we're getting kind of a late start. I want to ask you guys... Well, the first question here is, how did you discover emulation? That's what I put in my notes. And actually, I've made a terrible mistake here because I have immediately conflated piracy and emulation.

And that's not true. And we'd ask Frank Sefaldi to be here to kind of give a rousing defense of emulation. He wasn't able to make it. But I think we probably all can go over the talking points he would have prepared anyway, which are that immulation is good and not necessarily synonymous with piracy. So let me ask you guys, how did you discover piracy? Oh, okay. All right. Bob.

Oh, okay. Well, my story is that... My story is really good, so I want you to go first. I think I was lucky enough to... Well, is that meaning my story's bad? I don't get it. But I was lucky enough to stumble into emulation, piracy. Wait, piracy or emulation?

Can I say emulation? I mean, if this is an instance where it involves both, sure. Okay, sure. Well... They do intersect. though they are not one of the... There's an overlap in the VIN diagram, but they're not consensurate. It was taking things that weren't mine.

I will never be brought to justice. But I was lucky enough to stumble into emulation, I think. Around the time when Nesticle came out, I believe I saw something about Nesticle or NES emulators on a mystery science theater website. So I'm guessing it was probably 96 or 97. Let's see. According to my notes, that was April 1997, the debut of Nesticle.

97. Wow, it must have been May or something like that then. I remember very clearly of just finding out about emulation and Nesticle, when it emerged, it improved over time, but it was still like really, really good in its early versions, better than anything that existed before. And I fell into a rabbit hole of, hey, I can now play every NES game I never experienced before in my life. And that led to a, I don't know, probably like 10, 15-year fascination with emulation as things were taking off and new emulators were being created.

But if it was not for that, I would not be in the classic games as much as I am. I would not be on retronauts. I would know nothing. So I have to say that quote unquote piracy was a very educational process for me. So yeah, that's my story. All right. For myself, I didn't really own, I didn't have access to systems for which you could easily pirate things until emulation came along. My family didn't have really like real computers in the 80s.

We had a Colico Adam with a tape cassette drive and we didn't know anyone else who had a Leco Adams. So there was no one to steal games from. And then I switched over to playing on consoles, NES, then Super NES. And I didn't, it never occurred to me that it would be possible to pirate those games until, I know I've told the story before, until I lent a classmate, my copy of Chrono Trigger, that it cost me $90. And he brought it back the next day. And I was like, you didn't like it. He said, no, I just copied it. And I said, what? What? And he had, you know, he was an Asian, I think from China or Taiwan, sorry. So he had a floppy disk drive. He was an exchange student. That's what I was from somewhere in Asia. And so he had access to, you know, the disc copiers that were popular over there.

And so he had just copied Kroner Trigger onto a bunch of discettes and played it that way. And I was kind of put out because I had spent $90 on the game and he did not. Yeah. My very first experience with video games was with pirated video games. And so my very first memory of like a video game is, I mean, I must have been like three or four years old, but I was at my dad's workplace. They had an Atari 2,600 set up, which was, I think at that point, it was, you know, that was pretty close to being state of the art. and I remember the game Superman was running on it. But more so than the fact that we played the Superman game on the 2,600, I remember what my dad had was this like sort of like a, those brown sort of fake leather cases that were very popular, like not even Nogahide, just like vinyl that looked like leather cases popular in the 80s, the 70s and 80s that we'd have your cassette tapes in.

But when you opened it up, it was a bunch of prom chips for the Atari 2,600. So you went to prom at a very young age. Yeah, yes. And these chips had handwritten labels on them that said what game it is. And to play these games, you would take the chip and you would take this Atari 2,600 cartridge that had a ROM socket in it and put the chip in the socket and close it up and then play the game that way. And I thought nothing of it. And, you know, I later went back, I kind of realized, like, oh, like, these were copies of games. And I went back and asked my dad, and he said, yeah, you know, what I would do was I basically learned through a magazine how to make a DIY cable that would, I could hook it up from the Atari, hook an Atari cartridge up to the expansion slot of our TRS80 computer, dump things.

the information off of the Atari cartridge, save it to a cassette tape drive that was hooked up to the TRS-80 because that's the kind of storage the TRS-80 had. And then I wrote a – then I had written a program to dump the Atari cartridge and then wrote another program to write it back out to an E-Prom. And that's – I would just copy other people's Atari 2,600. It was this elaborate thing, and then you'd have to have the special cartridge, which, again, you know, there were magazines, there were ways to find out. how to build these kind of things. And so, yeah, he had these, like, you know, pirated sort of Atari things. And the same thing with, we later got an Atari 800 computer, and that was really my first, like, video game, you know, system, like, as far as, like, though, you know, we played a lot

of games on that before we got an NES. And everything was copied. Everything was just copied. And we didn't have any cartridges. Like, the, he even had a thing that would let you, like, look like a game genie that would go between the Atari cartridge and the cartridge port in the system that would break the copy protection on those cartridges and let you write so you could copy a cartridge to a floppy disk, which ordinarily you couldn't do. So we had this drawer full of copied floppy disks. And he would, again, I talked to him later.

He's like, yeah, a lot of these games used bad sector copy protection, which is they'd write an error sector to the magnetic flux on the disc. disk, basically, and the game was programmed to check for the bad sector. And so if you copied it, the game would look for a bad sector, but it wouldn't find it because disc copying doesn't just replicate the magnetic flux on the disc. It reads the program, and then it interprets the program, and then it rewrites it out to a new disc. That's how copying works. So that was the copy protection.

And so they'd go through all kinds of things to try to – I mean, sometimes they'd look in the program and try to figure out where it was looking for the bad. sector and then they'd erase that part of the program and then he could copy it. Sometimes they'd open up the disc drive when the game was looking for a bad sector and they closed the disc drive right at the right time and the game would be like, oh yeah, okay, we found the bad sector because the drive was open or the disc was moved, all kinds of stuff. And he said in one instance, he edited a game and put a crack screen in it, put a screen into

the game that said, cracked by Captain Kidd. Which was his pirate handle. His hacker helies. That's right. Yep. All right. All right. So you kind of jumped ahead in the syllabus there a little bit. talking about some of the copy protection schemes, but that's okay.

I do think it's important to kind of define piracy. We're specifically talking about violations of copyright law. And intellectual property law exists with sort of three pillars. There's copyright, trademark, and patent. And I think it's good just to sort of explain what these are because a lot of people don't know the difference. So trademark covers names, brands, concepts. It's like a word can be trademark. or a phrase can be trademarked, or, you know, like a logo or an image.

Those are trademarked. Trademark is something that must be formally applied for through the trademark office. And the trademark office will look for, you know, prior existence of trademarks on those, that term or phrase or whatever. And check for, you know, prior existence or conflicts or things like that. Trademark only lasts for 10 years, and it must be renewed, and trademark can be surrendered or lost if the trademark holder does not actively protect their trademark, which is why you have the you can't Xerox a Xerox on a Xerox advertisements that showed up in magazines back in the day because the Xerox Corporation was saying Xerox is a unique word. It is trademarked, and you can't use Xerox as a generic blanket phrase for, you know, Mimio. or photocopying. Right. So trademark, to me, is kind of intellectual property law the way it works.

It requires, you know, it's sort of an active participation by the person who holds it, and it's very limited in scope. Like you can take legal action, but then after 10 years you have to actively renew trademark. Mark. Patent law is similarly limited, though not quite as limited. And patent law covers processes and inventions, like the interior portions, you know, the chips and circuits of a game console, that's patented. An invention is patented. And a patent lasts for 20 years, which is for utility, like a concept, or 14 years for the actual design of something. And it must be maintained and it cannot be renewed.

So there's also a sort of... Like, you get a window, if you invent something, you get a window in which you can, you know, you have the exclusive rights to sell that thing that you invented. But then everybody gets to make one later. Right. So the idea is that human culture can be shared. Exactly. So the idea, you know, of playing mini games during loading screens on disk-based games, NAMCO trademarked that for... Patented.

I patented, I mean, sorry, for the Namco Museum games, I think, or Ridge Racer. I think it was Ridge Racer. And that was in 1995. Yep. So in 2005, or 2015, sorry, that ended. And now people can do that again. Yeah, Japanese software patents suck. Like, we, this is, here's an issue.

Here's a thorny issue, right? We don't, I don't think that you can, that sort of thing is not patentable in the U.S. generally saying, oh, I wrote a, I wrote a piece of. software code in such a way as to do a cool thing, and now I'm the only person who can do it. But in Japan, you can do that. And so Namco patented the idea of playing a mini game while waiting for the main game to load. And in fact, there's a lot of software patents like this in Japan. And friends that I have had who have been software developers in Japan have been like, you know, they've shown their boss.

They'd be like, oh, hey, I figured out a way to solve that problem. here's my code. And the boss is like, yeah, so whatever Japanese company owns a patent on that, so you have to solve this problem a different way. And it's like, that's baloney. And it's like, yeah, it sure is. There's also an additional element to patent law that provides sort of interim protection called patent pending. Whenever you see something that says patent pending, that's kind of like a blanket catch-all saying,

hey, we've applied for a patent, but you don't know what we've tried to patent. So back off and don't copy anything that you see here because this patent may be granted. And if it does, if you've created something that conflicts with what we've actually tried to patent, you're in trouble. So you kind of have to be careful when you see something that's patent pending because the documents for the patent aren't released at the patent office until, you know, the patent has been formalized. So that only lasts like a year, maybe two years. So it's kind of like this very small window of time. But it is like a very sort of broad protection. When someone invents something, they can use patent pending as a chance to kind of push off competition until the documents come out and someone says, okay, well, there's that idea.

Now we can do it a different way now that we've seen the patent. But then there's copyright. And copyright is a good idea that has gone horribly wrong. And I think the horribly wrong part of it really gets down to a lot of the defenses we'll see of piracy from Retronauts listeners because piracy. is, you know, taking something that is copyrighted and not, you know, remunerating the owner of that property. Copyright covers creative works in any medium. It's written like a photograph, a drawing, a painting, a recording, like written music.

And as soon as you create something, you have the copyright on it. You don't have to formally apply for it that you can. but basically if you've created something and you can prove, hey, I created this on this date, then anyone who infringes on that copyright, you can, you know, go after them. But, you know, copyright can be layered. So a musical composition is copyrighted by the composer. Then the recorded performance of that piece is copyrighted by the performer and also some grants are granted or rights are granted to the composer. So you have to really kind of be careful with copyright. But because it is so broad, you know, so wide-ranging and so universal, it can be difficult to prosecute someone for it.

At this point, I think, like, mostly copyright protects large corporations that have a lot of money that can litigate. And also, copyright was originally written to last, I think, like, 25 years or something like that. Oh, less than that. It was a very, it was a very, like, less than a quarter of a century. It was very much like patents. It was 14 years in the U.S. I mean, obviously, you know, different countries, different laws. In the U.S., it was 14 years.

And if you wanted to, you could get it renewed after the end of that 14-year cycle for another 14 years one time. And then that was it. And that went into the public domain after that. For the same reason that patents expire. Right. And for the same reason that you actively have to be using a trademark, you know, to keep that trademark. But that's not how it is now. No, no.

Now copyright covers a created work for the life of the creator or 50 years, whichever is in first, I think, plus than 70 years after that or something like it's very complicated. How about this? It's a long time. It's basically like anything you create right now is probably going to be copyrighted until the 22nd century. Yeah. Yeah. Yeah, that's right. If I were to write a short story right now, like doing absolutely nothing.

Assuming you don't die in the next few years. Well, I mean, yeah, but I mean, even then, after I die, if I kick it tomorrow, it's still copyrighted. For another 70 years. It's owned by my estate. Yeah, for 70 years. Some of the latter Sherlock Holmes stories are not public domain because of that, because of copyright law. So that's why we saw a bunch of Sherlock Holmes movies about five or six years ago, you know, Robert Downey Jr. and Benedict Cumberbatch, like, all of a sudden, because the original Sherlock Holmes stories entered the public domain. And everyone was like, ah, we can make those now.

You can't get the Phoenix Wright, Sherlock Holmes game, though. Games, sorry, games. Yeah, yeah, yeah. It's all rights issues. But I think it's important to cover this stuff because I think something a lot of people ignore, not out of malice or anything, is, you know, who profits from all of this? And the fact that these are not natural laws, these are created by people ostensibly with, you know, good intentions, but they have been perverted over the years. And I just feel that that's something we should really explore. We are exploring it now, but just like, these have.

a purpose for some reason, and the purpose was for the good of society. Like Chris is saying, ideas should be shared. It's good for all of us. It's good for culture. But, yes, Disney. Yeah, Disney basically is in the process of owning everything ever created forever. And then it will have copyright on those things for like a century.

Yeah. So, you know, that doesn't do anyone except Disney any good. And it's neat to think that, hey, maybe the X-Men can team up with Captain America in the future. But, boy, there's some downsides to that. It's every basically people, if you look, Like every time it seems like Mickey Mouse might enter the public domain,

that the first original Mickey Mouse shorts might start to enter the public domain. That is when, you know, mysteriously, Congress starts talking about, whoa, shouldn't we extend the Copyright Act again? And every time Mickey Mouse is about to go into the public domain, oh, Congress passes another bill extending copyright for 20 years. Yeah, I heard people calling the most recent copyright extension the Mickey Mouse law. Yeah. Yeah, oh, that's the Mickey Mouse Protection Act, yeah.

Former musician and former living person, Sonny Bono had a huge hand in that. So, no, they, you know, people say that they, that he did that. They named it after him because he died. Oh, okay. However, he had pushed for similar things in the past. Yeah, yeah, yeah. And then he knew too much and then we all know what happened. But, yeah, he had pushed for similar things in the past.

And that's, and yeah, it's, it's, it's, it's, it's, it just, they just keep extending it and extending it to the point where we live in. I mean, look, For all intents and for all intents purposes, it's just perpetual copyright because you're not going to outlive the copyright on these things. And because they kept extending it and extending it, all these things, all this work that was supposed to pass into the public domain didn't. And then it didn't again. And then it didn't again. And actually now, finally, I believe in the beginning of 2019, some work will finally start passing into the public domain again in the U.S. for the first time in I think about 40 years.

Jeez. Yep. So, yeah, that's ridiculous. Oh, and it'll pass into the public domain, but don't worry, because most of it's gone. Because it was on film reels that fell apart because nobody could copy them, because it was on books that disintegrated because people could not scan them legally. There couldn't be, it's like some things will survive because people, and we're going to get into this, but some of those things survive because people, because people. bootleg them and only because people bootleg them, but a lot of those things will not survive because they disappeared by the time they were to go into the public domain because they're printed

on physical media and you can't have a large scale effort at preserving them because if it's like if I make a Xerox of something, nobody cares. But as soon as like, I mean, if you make a photocopy of something. But like if a library search. it or if an institution starts doing it, they realize that if they start doing it at any kind of mass, you know, scale, people are going to start looking askance at them. You know, they would be very obviously doing it. So, like, the scale that you need to start digitizing all of these things, they can't do it because they're going to get in trouble. Now, if you happen to be an enormous online retailer that just happens to scan the contents of your books in order to offer sample pages on your storefront, no one seems to mind that. So in the future, preservation will be at the mercy of Amazon in corporations like that.

So, again, yeah, it's not doing much of anyone any good, and it's pretty frustrating. And, you know, if copyright still worked according to the original intention, Super Mario Brothers would have passed into the public. domain five years ago, and anyone would be able to do anything with it. But instead, the first video games will go into the public domain win sometime in about 60 years. Yeah, something like that. But, you know, there's something else to consider here, because a lot of people bring up, but what if, what if, what if Super Mario went into the public domain? What if, what if anybody in the whole entire world could just, could just download Super Mario Brothers off of the internet?

That would be anarchy. That would be. be awful. What would that be like? It would be like now. It would literally be like now. It'd be like going to Rom Nation and downloading Super Mario Brothers. Right. But no, I mean, yeah, like Nintendo is pretty good and Sega is pretty good and Namco is pretty good about making some of their games available, some games available. But what about stuff that, you know, was published by a third party that went under and no one knows what happened to the rights? Just last weekend on Twitter, John Anderson, game historian, was trying to figure out who owns the right to

Wizards and Warriors because that was developed by Rare and published by Acclaim. Well, Acclaim went bankrupt a bazillion years ago. Rare was bought by Microsoft. Rare republished, you know, a bunch of, like basically its entire catalog on Rare replay, and Wizards and Warriors wasn't on there. Yeah. So what's up with that? Well, it turns out that Rare owns the rights to the property.

Sure. And throwback entertainment owns the rights to the actual software, the code. So if we ever want to see those games again, Rare Microsoft and Throwback Entertainment have to get together and agree, like, here's how this is going to be structured and here's the format. And that's not going to happen because who cares about Wizards and Warriors? A few people, but it's not worth enough for those corporations. There's not enough profit in it for them to get together and hash things out with their lawyers. who are very expensive and then come up

with some sort of retail package to then take to consumers through a distribution process. There's so many steps involved. It's, you know, there's cost involved. It's just not worth it. And that's, those are, you know, those are somewhat notable games

published and created by a major developer owned by one of the biggest companies in the world. What happens when you're talking about games that are by some dinky little tiny-ass company from, like, South Korea that, you know, made, or Taiwan that, you know, made like weird kind of bootlake Famicom games. Those are interesting and, you know, deserve to be enshrined in some respect just to say,

like, here's a piece of history, but it's not going to happen. Right. And again, like the longer something is in like a copyright black hole, the more of a chance you have of something like that just disappearing, especially if it's like a prototype game. And if somebody is, you know, if there's like one copy of a prototype game out there, It's like there's nothing you can do that is fully in comportment with copyright law, but just let it sit there and die. There's nothing you can do.

You can't even show, you can't even like, you know, you can't even do a let's play of it. Because, like, somebody might say that that was illegal. Now, the thing is, nobody's going to come after you for stuff like this. I've never, by the way. And again, if anybody out there is listening and has a counter example, please, please send it to me. I've never heard an example of somebody finding something that's unreleased and just putting it on the internet and being like, hey, I found this unreleased cool thing and having anybody come after them for it in the world of video games. Yeah, I mean, that's not really the issue. I've seen Nintendo code.

Yeah. I've seen Squarespace code. Like, those are companies that are pretty litigious. Yeah. They're quick with the C&Ds. Yep. And they haven't gone after lost levels for releasing the official, like the unreleased. Final Fantasy 2 English translation for NES.

Or Nintendo has it, yeah, as you said, like, hey, you released Lunar Chase, X for Game Boy, like the broken leaked code. Right. Or Star Fox 2, you're in trouble now. I said, I mean, not only that, but I mean, somebody did an interview, you know, before Star Fox 2 came out on the S&ES classic, which, again, like, I think that's wonderful. I think that's very, very good that Nintendo did that. But before that happened, you know, somebody was asking, I think Polygon,

I was asking Miyamoto, but like, hey, are we ever going to see Star Fox 2? And Miyamoto is like, I think you could find it on the internet. You know? And it's like, Shigeri Miamoto is not Nintendo, right? Shigeri Miamoto, the person is not Nintendo, the corporation, which has to legally for its shareholders protect, you know, the rights that it has. Right? But like, so you can't conflate the two of them. But does this sound like a creator who is, like, angry that this creation is out there and viewable by people?

Because a lot of times people are like, but the creators, we have to respect their creators. The creators don't own the rights to the things that they produce. Major global multinational corporations own the rights. The creators are just as, their hands are just as tied as the rest of us when it comes to this stuff. Yeah, and even though Miyamoto is an older guy, I think he's savvy enough to know that nothing can ever be really taken down from the Internet. Like, when people were mourning the loss of another Metroid 2 remake, I'm like, it's somewhere. It'll always be somewhere. You'll always find it.

Yes. Yes. Nintendo can't stop that from happening because of the nature of the internet. And that wasn't a copyright issue. That was a trademark issue. Yes, yes. So, you know, that's another ball of wax altogether. But yeah, I mean, you look at something like Star Fox, you mentioned, well, Star Fox

too. Like originally under copyright law, the code for that should be available for people to download in a few years. Yeah. But that wouldn't have happened. I mean, that's not going to happen. Yeah. So we're just lucky that Nintendo said, hey, we've got this thing in our vaults that we can make some money off of and put out there.

But, again, at this point – But most stuff is not Star Fox, too. Yeah, right. So stuff is tied up in copyright limbo, basically. Yeah. And it will never officially come back out. Thousands, tens of thousands of games that have been published and will never be republished because no one cares or no one cares enough to make it happen. Or because the rights are – who knows, like, who owns Little Samson that was Taito Takeru.

Hero's no longer around. Taito is owned by Square Enix. No one cares. Also, the more I hear about the Japanese side of things, the more you start to realize that so much stuff is done with handshake deals over there are very vague sort of agreements. And you hear a lot about, oh, well, we want to re-release this game, but we don't know who owns the rights to all the artwork that's in there because, like, maybe an outside contractor did the artwork. And they just, there's no contract. Maybe it was all just sort of done. And it's like, we, the company that owns this game, we think we own it.

But what if we put it out there and we get sued? It's like... Yeah. I mean, as a fan of the TV show Mystery Science Theater, a lot of the fight to get those episodes on DVD was finding out who now owns the rights to movies. They negotiated the rights to 20 to 30 years ago. And I think they finally got most of them. But then, like, the last three or four movies, it's like, well, some, like, 90-year-old Italian woman owns the rights to these. And she doesn't understand what we're saying.

And there's no way we're going to release these. So here are just the sketches from the movies. those episodes. So it's stuff like that, like just the search to find who owns what is money and time intensive. So we have talked a lot about concepts, but this is retro-notts, not concept-nots. I thought it was Nintendo-Nots. Oh, that's right. I'm sorry that I mentioned Taito and Squared-Nx.

Keep talking about Nintendo. So I do want to go over kind of briefly a very loose history of piracy in video games, which is not something we can really define definitively. Because it's not like people really go out of their way to, you know, provide a chronicle of piracy. It's one of those things that happens and it's, you know, around the edges of the industry and it's things that you bumped into once or you've heard about or you maybe like downloaded this weird thing on the Internet and you're like, wow, that's like Donkey Kong, but it's not. And that is, you know, it's kind of hard to say like definitively here is the history of piracy. But certainly we can talk about the broad strokes and our own experiences with it. So let's start by talking about arcade games because I think that's where we really first saw piracy and bootlegging.

And I guess piracy and bootlegging are different things. There's like piracy is actual theft. Bootlegging is potentially pirated software, but it could be like weird variants or something like that or, like, hacked attempts to create things. It's a little more broad. But in any case, it's basically, like, here is something that is off-brand. It is not created by the people who originally made this product. Right.

Well, so, you know, what some people would say is the first computer game, Space War was created when MIT students would basically, you know, break into the computer lab and the dead of night. Right. But we'll get to that. We'll talk about, like, PC, computer, like, the mindset that, you know, about ownership with that. That's a different section of the notes.

Oh, okay. But just like piracy itself, I feel like that's easy to talk about because arcade games were discrete standalone units that existed. They were distributed. There was a process. People saw them. They could play them. And then you started to see like, hey, that's kind of like that other thing, but not that other thing. Well, of course, I mean, there was absolutely arcade game bootleg.

Oh, yeah, yeah. I mean, people were just straight up copying games, especially in other territories, right? Yeah. I mean, as soon as Pong came out, people started making games that were exactly Pong. But because Pong was, you know, like a very sort of real-world analog concept. I don't think Pong has any computer code in it. Yeah. I don't think it has a program.

That's true. It's entirely just like, yeah, yeah, yeah, yeah. So the concept of Pong is like cable to us. Yeah. So you could trademark. patent the process and the machine, but, yeah, if there's no code, then what can you do? Like, I guess you could copyright the exact block arrangements on the screen. Like, our ball is a square this big.

Yeah, you might be able to copyright the visual display, perhaps. Right, yeah, yeah, yeah. But, I mean, you don't have to tweak that a lot to change it and create something distinct. Right. So, you know, there were pawn clones out the ass. Everyone made a pawn clone. Nintendo made a Pong clone. Like, they were just, that was the video games industry for a while.

Oh, yeah. But then, you know, you started to get into the 80s and you started to get more distinct, unique video games. And if you create a game that's just like Pong, like it's table tennis. But if you create a game that uses the exact same graphics as Pac-Man, well, that's a little harder to defend because that's a more distinct game. And it has its own art style and its own, you know, trademark noises and mechanics. So you did start to see things like people taking cheap software boards and reprogramming them to play more advanced games like simulations of those games. A really popular trick was to take Glaxian hardware, which came out in, you know, 1978, 79, and was more primitive than Pac-Man hardware, but could run Pac-Man or something like a bad version of Pac-Man. So people would hack Galaxane hardware to run Pac-Man clones.

Huh. So that's straight up piracy right there, but it's bootlegging. Likewise, you know, there's a famous Donkey Kong clone called Crazy Kong, which got its name because it was programmed on Crazy Climer hardware from Nichibutsu, which I guess was a less expensive board than Donkey Kong, which was pretty advanced at the time. So that's the kind of thing you saw. And it got to the point where games were being ripped off and,

had improved on at the same time. Like Crazy Auto became Ms. Pac-Man, which was folded into become an official Pac-Man thing. But then, you know, like 10 years later, you had Street Fighter 2 Rainbow Edition, which was just Street Fighter 2, but designed like, you know, to have special features like Chunley throwing fireballs, which she

couldn't do originally, but then it was so popular because of the bootleg boards that Capcom folded that into her actual skill set in the games. This was something that arcade makers fought desperately to prevent. So you had things, I think the kind of the culmination of the anti-piracy efforts in arcades was Capcom's self-destructing CPS2 board, which basically if you try to open it up and get inside of it, it melts down and dies and it becomes useless. It's very sad. It makes it very difficult for those games to be preserved.

Like I think all of them at this point have been preserved, or most of them have. but it was difficult because you know you can't just crack it open and dump the wrong if you try to do that there's like a battery inside I don't know what all is it's a very complicated scheme it's like it's like the the Banksy painting yes except um yes exactly exactly like that yeah with no political statement behind it Banksy was actually at Capcom so I don't know what guy what experience have you guys had with he was he was actually the cow he's for you Caros, Papa. Yeah. So what experience have you guys had with bootlegged or pirated arcade games, if any? In the actual arcades, none. All the arcades games I played were on the level, at least from what I could tell. I never saw any of these until much later in the 90s when I would download.

Like, here is all the main games, and I would play all the variants there, but I would never see them in arcades anywhere. I never saw, maybe I wasn't going to the right arcades. I never saw Rainbow Edition up in Connecticut and the arcade. that I went to, like, in the mall. But when we went on vacation to, which I guess is just the legal wild west of Myrtle Beach, South Carolina, which, I mean, considering the fireworks you get there,

yeah, that is when I first saw Rainbow Edition. That was a real mess. Like, that was such a weird, weird, weird, weird game. Like, you know, it's like, yeah, Chumley had a fireball, but also, like, the game was, like, incredibly glitchy and ridiculous and made no sense.

And you could do, like, a, you could do fireballs in the air, but then immediately after you threw a fireball, you could jump again, because the games thought you were on the ground. So you'd like fireball, jump, fireball, jump, fireball, jump until you were off the screen. Yeah, it's good times. Yeah, I actually saw a board of that in Lubbock, Texas, when I went back home and a visit.

Yeah, it was very popular. Yeah, or I guess I was still in high school then. It's been enjoying a resurgence in Japan, as I found out. Oh, yeah? Yeah, yeah. I found one in an arcade, just this last trip to Tokyo game show, and apparently people do tournaments on it. Huh. Yeah, I remember seeing it and thinking, oh, man, there's another new street fighter version out. Whoa, I feel like this is not a...

There's something really off with this. Like, immediately I get tall, like, this maybe isn't the real thing. It doesn't say on the machine, this is a bootleg. Like, how do you know it's a bootleg? How do you know it's not official? Does it say rainbow on the... No, they changed the champion of the Street Fighter 2 logo on the title to a garish, incredibly ugly rainbow of colors. So Rainbow is just sort of the nickname that caught on.

Yeah. Okay. Got to call it something. So on the PC front, I feel like that's interesting because you started to get into that, Chris, about how, you know, video games were created in an academic environment. Yeah. And for a long time, there was not really a sense of ownership to video game code. Right, right. Or the software code in general.

What are, you know, what are the people who created Space War are going to say? Yeah, I broke into the computer lab and I took a computer time that, like, wasn't mine to, you know, make this game. Like, how are they going to try to assert ownership of it? So they didn't. They just, you know, they created Space War, which was literally stored on paper reels, right? Yeah, I don't think the idea of ownership even entered. It was the idea was everyone was, like, collaborating and sharing and working toward a common good. Like, we're discovering and creating, and everyone should be able to benefit from this.

Right, right, right. It was the Garden of Eden for, you know, somebody bit the apple, right? So, I mean, yeah. The serpent was Bill Gates, by the way. Spoilers. Yeah, yeah, that was him. Yeah, so, I mean, space war in and of itself, I mean, you know, there were only like, you know, a few computers that could run it, but it made total sense that they would take it and they would just make a

bunch of copies of it and just send it to every university that had this computer and that people would then jump in and start tweaking it themselves. And, I mean, I think it was, wasn't it, you know, Nolan Bushnell who like programmed the sun into, you know, his copy of Space War or something like that? Or was it? Or I don't know if it was him. Well, he might just play it. Did he work on Space War at all? I mean, only in, you know, he definitely played it on like a PDP-1 computer.

And then ripped it off. I don't know. Well, not ripped it off, but, like, that was what everybody did. But he just sort of jumped in and started tweaking the program if you wanted to. Maybe I mean, he turned it into it. I think. Yeah, I think so. But it was a collaborative thing.

I mean, space war started out as just like a simulation, but then someone added something called expensive planetarium, which added stars in the background, like very accurately modeled, you know, this is the night sky that you see. It was called expensive planetarium because computer, you know, programming cycles were very common. costly. Like the time that you spent on that computer was very expensive. Therefore, it got the name. And there was also a physics system added in and so forth. And then, you know, computer space that Nolan Bushnell released for Atari ended up taking a lot of those elements and turning it into a commercial product. But if you look back at, you know, things like the academic environment where Zork was created or colossal cave before that or the whole Plato system that we've talked about a few times on retronauts, those were communal. Those were, you know, the idea. was everyone was collaborating and pitching in to help make the games better. There was no sense of ownership. Computer culture was like hacker culture. I mean, that's like, you know, you buy a computer

because you want to program the computer and you want to copy disks and you want to share things and you want to take the disc and put it on your computer and then you want to look at the code and see how it works and start messing around with it and, you know, give yourself seven lives instead of five, that sort of

thing. I mean, there was, I actually just, I just got just the packaging, but that's all you really need, is the packaging from a very early game from the software toolworks, and it was a space invaders clone. So, I mean, already there, there's some playing with, you know, who owns what. It's a space invaders clone. And the documentation, it was sold in a baggie with Xeroxed, you know, covers and manuals. Photocopied. Yeah.

And it says in the instruction manual for this thing, it's like, if you. you want to make the invaders faster, modify the program, so it says this instead of that. And if you want to give yourself more lives, do this to the program instead of that. And that was all a big part of that early culture. Yeah, I mean, early games were sometimes distributed in computer magazines as code that you could just program in yourself. So, yeah, if you check out the site, Digital Antiquarian, which we've referred to a few times throughout the years. There's a great piece on sort of early piracy called Pirates Life for Me, Part 1, Don't Copy that floppy, that talks about how Bill Gates and Microsoft stirred up a lot of resentment in the computing community

by publishing a letter saying, hey, we own the stuff we create. MS. DOS? Yeah, that belongs to us. Don't touch. And he wasn't the first one to come up with the idea of ownership. According also to that same article, the first programmer ever to attach a notice of copyright to her program, and thus quite likely the first programmer ever to conceive of her program as a potentially marketable creative work, was Betty Holberton, one of the original programmers of the NIA. By some divisions, the definitions the world's first true computer. In 1951, she was proud enough

of a sorting program that she had written to attach her name to a copyright notice included therein. It wasn't until 1964, however, that a programmer made the next step of attempting to actually secure registration through the copyright office. So, it was a contentious idea.

But, you know, once PCs be kind of, you know, microcomputers hit the consumer market, it was pretty much impossible to stop piracy from happening because computers were built around discets and tapes and things like these, you know, these recordable media that were designed at the consumer level to be readable and rewritable. Yeah. So as soon as that's out there, you know, like, of course people are going to say,

oh, well, you know, my friend has this game and it's $40 or $20 or whatever it cost. So as much as I'd like to buy a copy of Load Runner, I don't have that money, so I'm just going to copy my friend's copy of Load Runner. And that happened a lot. I probably played some pirated games as a kid without realizing it because my friends had computers and had borrowed their friends' copies of games and, you know, swipe them. And I didn't realize it because it was just like on a discette for me. So what did I know? They didn't hear that rap yet.

We all need to hear the rap. That didn't, you know, rap took a while to catch on. Yeah, that's true. It was pretty early. Yeah, meanwhile, I don't think I, it's like I don't think I played a legit version of a game, you know, until. the NES, basically. A lot of the computers that I used as a kid, you know, in the early 80s, were cartridge-based, like the Odyssey 2 and the TI-99-4A. So you could do piracy on those systems.

You could, you know, you could copy if you had the rewritable drives, but a lot of software was distributed on cartridges, and those are much harder to copy and, you know, to rip off. So there was that kind of built-in protection. Publishers did a lot to fight piracy in the early days. I think the most fun, like most enjoyable protection approach was Feeleys, you know, just stuff that came in the package with the game. And that was really only available to larger publishers that had a budget for production and marketing and distribution. But, you know, Infocom is really good about that. And they would include things that you needed to reference in the game in order to advance. And those became pretty sophisticated to the point you started getting these, these,

what are they called, uh, code wheels. Yeah. Where you would like rotate things and you'd basically be given some numbers or something in the game and you would turn the coordinates on your code wheel to those numbers and it would give you a code and you would input that into the game. And there could be, you know, thousands of permutations on that or in the case of, I think Monkey Island had that, didn't it? It did.

It did. You know, like that Super Mario Brothers three mini game where you have to like get the sliding faces and line them up. Yeah, like pirate faces. I'm kind of sad I miss this error, even though it seems like, like a real pain in the ass. By the time I played PC games and had a PC, it was 96, and the understanding was well, this is a CD-ROM game and only

the five Riches Kings of Europe can afford a CD-ROM burner. So, of course, you can't copy this. And then in like two years, they were just consumer available to consumers. Yep. On a wide scale. Yeah. And Well, Infocom did a good job of competing with piracy, even if they didn't quite realize that that's

what they were doing, because the feelies that were included with the legit versions of the games were so cool that you wanted to own the game. even beyond just copying the disc. Right. Hitchhiker's Guide to the Galaxy came with no T. Like, no other games got to that.

Yeah, but we talked in a recent Metal Gear Solid Deep Dive episode about how Kogima liked to be, you know, about the meta game and had that gimmick where you had to look at the back of the CD box to read a, you know, a codec frequency in order to call someone, which was a clever idea and was very much in keeping with his sort of mentality toward game design. But it wasn't like an original idea. But it's just he made it more of like a game thing. But even Nintendo did that with Star Tropic and the 747 code in the annual. Right. Yeah, there were very, very, very few attempts to do that sort of copy protection with console games. And they were all just generally, I think, considered to be failures. Nintendo eventually had to print the Star Tropic's code in Nintendo power.

With that, I feel like it was more. especially for 1990, meant-to-fight rentals. Yes, it was. Yes, it was. Yeah. Yeah, Nintendo, well, Nintendo sued everybody. Nintendo sued Blockbuster video. The Nintendo sued, you know, Gloob and Camerica over the game genie because they felt

that when you put in a game genie code and it changed the game. It created a derivative work and therefore it, you know, infringed on their copyright. And the court said, yeah, I mean, even before that, Nintendo released its own magnetic media, the Famicom Disc System in Japan. And they used a physical. physical copyright protection scheme with that in that the word Nintendo was imprinted on the discette and there were like prongs inside the disc drive and when you placed the discette inside the prongs would descend and they would only seat in certain letters and so if your

discette didn't have the proper indentations then the prongs wouldn't seat properly and your disc wouldn't run but of course people eventually figured out well you just need to put the depressions here here yeah but it was still kind of a clever idea idea. And, you know, because they used the word Nintendo, that was right there like a trademark. Like, they couldn't just flip that off. They'd get you, they'd get you in both ends. They'd get you for trademark violation of copyright. Yeah. And you mentioned earlier, Chris, about how, like, physical defects were kind of made, like, people took advantage of the physical quirks and flaws of the formats in order to protect their games. And one of my favorite Twitter accounts is 4 a.m. I don't know if you guys ever read that one.

But it's basically someone who is really dedicated to cracking as many old computer games as possible to preserve them. And they always go into detail about, like, well, this game had, you know, like a bad sector here. Or this game looked for the physical orientation in this way. Or, you know, there's some really, really clever schemes that people came up with to make use of, you know, the fact that the Apple 2 diskette drive was weird and had some problems. So, yeah, lots of pushback from developers and, you know, crackers and pirates, of course, we're like, well, that's great, but we're going to figure this out anyway. And you still have that today with things like De Novo and Star Doc and all that crap.

Yeah, I remember on the Doom episode, I read a lot about the development of Doom in its software, and John Carmack is very much from that old computing mindset, and he had to be like, his arm had to be twisted to be convinced to not release the Doom source code with Doom. It eventually came out in the late 90s, but yeah, he had to be convinced like, no, don't do this. You want to make more money off of this game, don't you? Very briefly, I'd like to talk about what actually is protected by copyright when it comes to video games, because it's not really entirely clear, and it took a while to figure that out. We've talked about the Nintendo Donkey Kong Ikegami Tsushinkie case on here quite a few times, and apparently that's been resolved since the

arcade version of Donkey Kong recently came out for. for Switch Arcade Archives. Was it ever figured out how that ended up in the... No? No? Donkey Kong 64? No one ever figured that out? Yeah. I think they just put it there. Nobody cares. It was rare. They might have just... They might have just put it there?

I think... I'm guessing they probably just were like, yeah, we're just going to stick it in there. Yeah. And no one bothered to say, hey, you can't do that. That was the only legit release of Donkey Kong for a long time. Yeah. The arcade Donkey Kong. Wretched game. Yep. So, you know, the issue there was that Nintendo created the concept for Donkey Kong.

and the artwork and the design of the game, the mechanics. And then they contracted Ikegami Sushinki to actually code it and create the board. And Nintendo saw it as, you know, my understanding is Nintendo saw that, the code that they created as their own property because they paid a contractor to create it. They came up with the ideas. So the contractor was just, you know, there to put that in, like, make flesh of the concept, basically. So I don't feel like the things they did by treating Donkey Kong as a derivative work, you know, by producing more of the boards than were contracted with Ikegame Sushinki to manufacture or to reverse engineer the boards to create Donkey Kong Jr. I don't think they were doing that maliciously.

I think Nintendo just said, well, this is our stuff. Like, we created this and these contractors came in. But, you know, code isn't copyrightable. Right. They probably didn't realize they had to lock down the copyright on the code because, well, Why? At that point, it wasn't known. Like, there had, there wasn't legal precedent. Is code copyrighted? It's just ones and zeros. Come on. So, you know, Ikigami Tsuki was like, hey, this wasn't our contract. This is an issue. And you owe us a lot of money. And eventually it was settled out of court. But the settlement out of court happened after Japanese courts came down and said, yes, code is something that can be copyrighted. And therefore, that was like 1987. or so, 88, and then, like, a few months later, Nintendo settled out of court.

So I think what happened was that that case kept going until, you know, the courts came down to the ruling and Nintendo was like, oh, we can't win this one. So they just said, okay, we'll give you some money and, you know, whatever terms, like, we won't publish this until the switch comes out. I don't know. So that's kind of, you know, one of those defining cases. I imagine that I think that Nintendo locked down Donkey Kong a while back, like one once all hostilities had ceased.

Most likely. But then it's Nintendo. So, I mean, sometimes they do, you know, it just took a long time for Nintendo to, like, have a deal with Hamster where Hamster would release its arcade games again. Yeah, but, I mean, Nintendo had virtual console, like, arcade. But its own games were never in there. Right. But virtual console arcade was there.

It should have happened. It was basically them letting other publishers publish their arcade games if they wanted to. Yeah. But then, you know, there's the question of look and feel. Yeah, this was a big case in the 80s. Apple versus Microsoft, Apple saying, hey, Microsoft Windows, boy, that sure is a lot like MacOS or, you know, System 7 or whatever. And so that was in the courts for a long time and created a lot of bad blood between two major computer companies. Yeah. Eventually the courts came down in favor of Microsoft. And also, after that got started, Xerox came after Apple because the, you know, Photocopies came after Apple. No, in this case, it was Xerox.

Sorry. Good try, though. The Xerox actually came after Apple because the Mac OS and Windows came from the same source, like the same inspiration, which was Xerox Parks Research and Graphical User Interfaces. So Xerox was like, yeah, you can sue Microsoft, but you're ripping us off, so give us money. So that didn't work out really well for anyone. It just was an ugly case. and, you know, can you copyright or trademark the idea of windowed interfaces? I don't think you can.

I don't think it is patented. I guess someone could correct me on that if I'm wrong. I don't think so, and I think that this is one of the nice things that we can point to about the way that U.S. law is shaken out in this regard because these look and feel things. I mean, if look and feel was something that was protectable or copyrightable forever, I mean, that just absolutely stifles creativity because then anything you create, if somebody created something that sort of looked like it in any time in the last hundred years, they could just sue the pants off you. Why would you create things? Right.

So another look and feel case that's actually more germane to video games is Capcom versus what the hell company was that Data East? Yes. Street Fighter versus Fighter's history. Yeah. And this is, I believe, I mean, this is the current like state of the case law on this for video games. This was the decisive case because... That's 20 years old. Capcom, yeah.

Well, Capcom looked at Data East's game Fighter's history and was like, you copied this from Street Fighter 2. And it's kind of weird that they went after just Data East because everyone was making games that were just like Street Fighter 2. Yeah, Fighter's history, if you look at it, was like really, it's like you have Army guy, you have guy with stretchy arms, you have karate guy. You have Russian wrestlers. You have one lady. Yeah, exactly. The characters, the moves and everything. and fighters' history in particular were, like, extremely Street Fighter 2 rip-off.

But they – and actually, and Bill Kunkle, famous, you know, early video game journalist, was an expert witness for the defense in this case. And basically the outcome of this case was that, no, they didn't copy your sprites. They didn't copy your music. They didn't steal anything from you. they didn't copy your code. It just looks like your game. It's original characters, original music,

original stuff, but it just looks like your game. And the gameplay, the look and the feel and things like that, that is not protectable and they can do this. And that, again, that is a wonderful thing

because the idea that you could, I mean, basically this would just mean, you know, you create golden eye and nobody else gets to make a first person shooter. You know what I mean? Like it's just one of those things

where it's like it really, really would have stifled creativity were that to be the case. It's funny, though, because there are quite a few things in Street Fighter 2 that are stolen from other sources. And I'm guessing the suits didn't know that. The creators are like, oh, okay, let's not mention this music that we stole from something else. Yeah, and of course then there's like Universal and King Kong, Donkey Kong. Yeah. There's lots of these cases in video game history, but it's really hard to protect a concept, an idea, whereas individual like code or art assets, those are much more defensible.

I don't know. If you're a fan of Retronauts, you might enjoy all the shows on The Collider Network on Podcast 1. The YouTube channel turned Podcast Super Network has got everything for your pop culture needs. Check out Collider Sports Jedi Council one-on-one with Christian Harloff, movie trivia shmodown, movie talk, and so much more. Check out the Collider Network every week on Podcast 1 or wherever you get your favorite podcasts. And caller number nine for $1 million. $1,000. Rita, complete this quote. Life is like a box of... Chocolate. Uh, Rita, you're cutting out. We need your answer.

Life is like a box of chocolate. Oh, sorry. That's not what we were looking for. On to caller number 10. Bad network got you glitched out of luck. Switch to Boost Mobile, super reliable, super fast, nationwide network, and get four lines, each with unlimited gigs for just $100 a month. Plus, get four free phones. Boost makes it easy to switch. Switching makes it easy to save. So I said that we're going to be able to be. So I said that we were going to read listener mail. And I lied because there is a lot of listener mail. And I really don't think we have

time to go through all of it. And some of these letters are really, really interesting and thoughtful. Listener confessions. Yeah, right? So we're going to push those off to their own standalone episode, I think, and revisit that at some point because it's just, there's a lot there. And we don't really have time because we got a little bit of a late start on this episode. So instead, let's jump over to talk about emulation because emulation is not piracy but the two do go hand in hand. It's like they have this kind of on again, off again relationship like Sam and Diane or, you know, Maddie and...

Or a more topical reference. No, this is retronauts. Come on. We're going to talk about cheers and moonlighting. Geez. I don't even know any great on and again, off again, love relationship. Ross and Rachel there. That's 25 years old.

They're getting closer. Yeah, exactly. All right. Oh, they were a terrible couple. Never mind. Yeah, they sucked. Well, Ross sucked. So, anyway, emulation.

Why does emulation so often go hand in hand with piracy? What's up with that? It's a rhetorical question, or do you want us to answer you? I would like for you to answer me. Okay. Well, Jeremy, because in most cases, you're taking things that you don't own, digital copies of things that you don't own, a physical copy of, to emulate. and that is technically theft.

But why is emulation copyrighted? Why is emulation not technically theft? Why is it not piracy on its own? Doesn't it use its own code? Well, no, yeah. Emulation is not, I mean, the act of making a computer

act like another computer is not illegal. Correct. Yes. You can, and by the way, this was decided in court because, again, these court cases keep coming up. Because every time something new happens, whoever has the most money takes that person to court to try to get them to stop doing it. So when Connectix came out with the, I believe, the virtual game station, which like you play PlayStation 1 games on a Mac, which Steve Jobs touted in a Mac press conference. Yes, that made it to an Apple press conference.

It's a jobs note. Steve Jobs up there saying, check out Metal Gear Solid. Yeah. So, Sony sued Kinectics because they were like, emulators are illegal. And Kinectics won. So they won in court proving that emulation per se is not illegal. So then Sony bought Kinectics and shut them down. Right, yeah.

So, you know, the big guys are going to win anyway. So they went to Plan B. Exactly. So now, if you were to emulate a Vectrex game, well, the guy who owns all of the copyrights to the VectRex games actually has put them all in the public domain. Oh, I don't know that. Yes. So go ahead and download all the Vectrex ROMs you want without fear of any repercussions

because those are in the public domain. You can emulate them. Even Scramble? The Konami game? Probably not that one. Okay. So. Because there were some ports from, you know, third parties.

But then, yeah. But also, if you think about it, I mean, how close was the Vectrex to the original, et cetera, et cetera. Does the title of the game even appear in the code at that point? Like, maybe the code itself is so separate from the actual original copyrighted work that it doesn't matter. But I don't know. Gray area. Yeah, there was a company just like a week ago. I think this is what started the Wizards and Warriors search for John Anderson that announced,

hey, we have a catalog of 200 acclaim titles and we're going to publish these games. But what they, you know, and they included stuff like Bubble Bobble. Well, that's a Tito game. That's a Square Enix. So what's up with that? But it turns out a claim, like, published the PC version of it. So they have the right to publish the PC version, but Square Inix still owns the property. Right.

So they would have to get Square Inix to sign off on it. So it's kind of like a paper tiger. Like they said, oh, yeah, we got, you know, was it 65 games or something for a million dollars? But, but, but they could go to Square Nix and say, hey, guess what? We have the worst version of Bubble Bobble. We have the worst version of Bubble Bobble. It runs on Windows 95. We could dump this on good old games and send you money.

And, you know, maybe they would do it. Who knows? You never know. The first thing you have to do is announce that you have it all and then see what happens after that. Right. They probably didn't pay that much for it. It was a million dollars for the deal is what it was. That's a lot of money.

It was, but there were dozens and dozens of games. Yeah. So, you know, if they do release a few of these on Steam, they could make it back pretty easily. That's right. That's right. Where were we on this? Oh, yeah. Okay.

So, regulation. It's not illegal. Now, if you take an NES game that you own and then take that copy of Super Mario Brothers 2 and then figure out some way to dump the content onto your PC, making a backup copy of your own personal copy, and you run that in an emulator, not copyright infringement because you have the right to do that, make personal copies of your own stuff for yourself. It's the equivalent of, you know, home taping of television shows, you know, time shifting. Yes, yeah, yeah, which again, there was a court battle. It was. Yes. It was cited in the 80s.

Yes. I don't know if there was ever a court battle off like taping things off the radio or something like that. Probably. Yeah. Because you can tape things off the radio, but you can't like play CDs in a public space. You have to play the radio in a public space because the radio has paid its ASCAP license and has the right to broadcast these things. So, you know, there's a transitive property there. But just because you bought a CD doesn't mean you have the right to play it at your restaurant.

Yep. So if you don't hear the radio at a restaurant, either they've paid, you know, some ASCAP dues and spent a lot of money for that, or they just don't care. Also, I believe the current case law is that if, that companies also control the performance rights to their software so that actually if you do, remember those screens that would come up saying, if you're playing this arcade game anywhere other than Japan, you are breaking the law. And in fact, you may actually be because they may own the performance rights to that copyrighted work, and you might be engaging in, or the person who put it in their arcade, not you the player, may be engaging in unauthorized public performance of the work. They can get you that way, too. But yeah, the thing is, it is very, very, very, very extremely ridiculously unlikely that anybody,

would have actually had the hardware to dump the ROM out of their NES game and then get it onto their computer to play it in an emulator. And so, therefore, emulators went hand in hand with unauthorized copies of those games. But additionally, what emulators did when they first sort of hit the scene in the mid-90s was they went to people and said, hey, remember how you had an NES? Maybe you still have one? Remember how everybody had like, I don't know, 10 to 20 games max in their personal libraries? well, there were a thousand, you know, Nintendo games.

And now you can play all of them. You can play the whole library of games. And so then people started finding. Who owned Little Samson? Nobody owned Little Samson, right? So, but then it sort of gained this notoriety because people started downloading the Rama plane going, wow, this is a really good game. And people, by the time that NES emulators started hitting in the mid-90s, people were not

trying to steal. There was no sense of, we're going to steal these games. You couldn't acquire these games. They weren't being, they were not things that you could just go to the store and buy for the most part. Even if you went to a store and it had a selection of NES games, it was nowhere near the whole library. It was, there was a, there was a disconnect between what you could do in terms of like online distribution of software and what companies were actually doing, which was, which was nothing. And so people, again, like, you know, people would have, it was the same thing with, like, MP3s.

People would have paid money to download MP3 files of cool music that they wanted. Yes. And when Apple figured that out, they became incredibly wealthy with iTunes. Yeah, they really did. The iTunes store was a revelation. Yeah, most of my emulation experience was, of course, I would download my favorite games that I liked as a kid, but then I would also, I could never rent this. I never saw this. I saw a review of this in a magazine, but then I could never play it.

And also the fan translation scene that popped up in the coming years after that. It's like, well, these are games I could never even find in any store in America and not even in my language. I keep hearing from people that because I have my book that I wrote Final Fantasy 5 and I kind of wrote it about the experience if it was the first game cartridge that I ever imported because I wanted to play it so bad that I had to import this game. Had this come a few years later, I probably would have just gotten the ROM. And a lot of people, as I'm explaining the plot of this book to them, they go, oh, yeah, Final Fantasy 5 was the first ROM I ever downloaded. Like, they're not trying to steal Final Fantasy 5. They just want to play Final Fantasy 5 and nobody is allowing them to do it in a way that makes sense. There's still no legal way to play Saken Denset 3 in English.

That's right. That's right. And it's like, and especially, I mean, you know, you hear a lot of stories also people who maybe they weren't growing up in the United States. Maybe there was no way to play the video. video games. From people from outside the U.S. who were just like, I want to play these games, but they are impossible to acquire where I live. Right.

And I think the positive effect of a lot of this is that with me and a lot of people I know is that we became fans of these games through emulation. And then eventually when they became available, we would buy them legally. Yeah. No one gave a crap about River City Ransom until people discovered, and super dodgeball, like all the Kuneo games, until they discovered them through emulation. And now, you know, that's a small but viable little business for Natsume. Like, they're still, they're bringing over River City Ransom games and all the weird, like, medieval variants and stuff like that. And I don't think they'd be doing that if it weren't for emulation and that game developing that sort of cult cachet. And I think that, I mean, you can, it's very difficult to say how things would have gone without emulation, but, like, you could even make a case that even like Mario and Zelda, not just the old games that Nintendo sells in an ES Classic, but just the fact that Nintendo is still able to produce.

games like Breath of the Wild and Mario Odyssey using these characters that are quite old. It's like maybe these characters would not even be so popular these days without the fact that like billions, billions of people around the world probably interacted with these characters for far after the lifespan of the games that were on the shelves. I mean, how many copies of Super Mario Brothers did Nintendo make versus how many people in the world have played Super Mario Bros. Well, you know, on top of that, even if people haven't downloaded those games illegally, they've still probably played them emulated because Nintendo started dealing with emulation back in the, I don't know, like 2002 or so, the Game Boy Advance e-reader games, those were emulated, the NES classics that came after that.

Those were an NES emulator running on Game Boy Advance. And then you had, you know, the Animal Crossing. Yeah, Animal Crossing. You had the Zelda disc that had Aquina of Time and UraZlda on it. You know, all of these things, even now, like backward compatibility, you have the 3DS Ambassador games, the GBA games, the NES games, those are emulated. Arcade Archives games, you know, the NES games for Switch, Nintendo Switch online, those are emulated. Nintendo works with emulation. Sega is all about emulation.

It also, you know, has, they work with M2 and, like, do better than just plain emulation. But then they do, like, really bad emulation on the ad games. So what's really important to remember about all of this stuff and that, and that, you know, were Frank Sefaldi able to make it today, you know, he would surely be saying that all of the professional emulation, all of the legit emulation, is built on the backs of the old pirates. It is built on all of the work that all of these, you know, detestable pirates, you know, put in on a volunteer basis over the years to dump the ROMs, to look at the inner workings of these systems, to start writing these emulators, to work out all of the bugs and all of that kind of stuff. All of these, all these professional projects do not exist without all of the work that has come before. Yeah, I think in one of Frank's articles when he was writing about this, he's written about it a lot. But isn't it true that the version of Super Mario Brothers released on Wii virtual console is just downloaded from the Internet? Supposedly there's some fragments of code in there that are like a header or something where you're used to one of the dumps.

Yeah. So basically, the way the, so the NES, the games were stored on NES cartridges in a really weird way. There's two parts. There's a PRG chip and a CHR chip. All the graphics were on the CHR chip and all. the code was on the PRG chip. So you couldn't just take those two things and make a ROM out of them.

You had to add a little bit of code in there that basically says, hey, emulator, this is where the stuff is. And so that was the INES header for the original, the very old INES emulator. And then people looked at the version of Super Mario Brothers that was on virtual console and they're like, hey,

why are there IANS headers in here? Now, it's entirely possible that Nintendo had to recreate the ROM from scratch using their own chips and then had to put this in because the emulator was based on the INES, whatever. I mean, there's open source software in the NES classic. If you look back, one of the earliest emulators for a console, maybe the first, was an NES or Famicom emulator that Yuji NACA, creator of Sonic the Hedgehog, programmer Sonic the Hedgehog, created internally at Sega for the Mega Drive, for the Genesis, which he just created as a project for himself to do. He wanted to play Dr. Mario.

He was like, can I do this on... Genesis. And he could. Apparently it was like kind of an imperfect glitchy emulator. But I mean, what do you expect on, you know, a 16-bit console playing an A-bit system? But, you know, like it's something that corporations and professionals and publishers and developers all make use of. It's just, you know, a lot of companies have attempted to demonize it because of its association with piracy and because they want the exclusive hammerlock on being able to own their code and distribute their code, which is understandable. But, But, you know, then you get into the whole, like, copyright law is broken issue. And something like Snatcher should be available in the public domain now, but it's not. So good luck ever paying that for less than $500 or breaking the law. But, I mean, you look back at just a quick history of emulation. The very first emulator that I've been able to find information on, you know, like a public, playable, amateur-created emulator debuted on. debuted on the FM Towns system in 1993.

That was Paso Fami, which played Famicom games, TBS games. Paso Fami is basically like the reverse of Famicom, family computer. Paso being, Pasocom is like personal computer and like a portmanteau in Japanese. Cute. So, yeah, Paso Fami is like the PC Famicom. Yep, I remember playing this on the PC port of it basically. It made it, yeah, it made its way over to PCs a few years later. You mentioned Ines or Landyness.

That debuted in 1996, and then Nesticle came the next year. A lot of this stuff happened kind of simultaneously on a few different platforms like Mac and PC Windows or DOS even. There was a huge explosion in the years, 96 and 97. I don't know why. It all happened so fast. I remember like, so in the video zone, my fanzine, and I can date this because it all happened in the summer of 96 for, me because I had literally right next to each other on the same page is there's an article about me playing Mario 64 at a Toys R Us that summer, you know, before N64 came out.

And then right the next column next to it is about Colem, the Colico Vision emulator. And I had just, just discovered the idea of an emulator. And it was like, oh, okay, you know, they've got these emulators, but they emulate the Calico Vision and the Atari 2,600. It's like, that's cool, not really my thing. It's like, all right, well, you know, gee, maybe one day they can emulate the Super Nintendo. And one day turned out to be like a year and a half later. Actually, it was 1996.

Yeah. Well, the emulators at that time were pretty... Virtual Supermagicom actually debuted in 1994 and Super Paso Fami and S&EX 9x both debuted in 96. And they were bad. They were broken as hell. They were broken as hell. Exactly. Yeah.

I was just editing the Chrono Tricker episode this morning and I talked about how when I first discovered emulation, I would use the chrono-trigger ROM to test the emulators to see how they were coming along and they would work at like 25% speed and like the sound effects were terrible and slow. So like to me that intro with the balloons and the fireworks, like even though I've played it properly so many times because of that experience of like watching emulators slowly, each new release crawl through that beginning. Like that's cemented in my head That's how it is

Yeah and like Nesticle was hardly perfect either But it was Nesticle was the quantum leap It was basically if you see this Also it was a balls joke It was a balls joke But it's like if you went to just a one ball It wasn't nesticles That's true

But it was like basically like Everything was super super super janky And then like nesticle It wasn't perfect But it was like Oh this is like playing an NES When you start up a popular game And like Mike Tyson's Punchout

Or Super Mario Brothers and it just, it felt correct. That was a big deal. And that took emulators from like, you know, me nerd guy on his computer to like everybody in the college dorm playing NES games. Yeah. I think this was our version of the space race almost where these huge leaps and bounds would happen so fast.

And I remember maybe the summer of 97, it could have been CSNS, but before the next version came out, the version was sound, it was like, here is a wave file of what the opening of Chrono Trigger sounds like through this new version. and I downloaded that like, oh my God, there's sound on this now. This changes everything. Yep, you mentioned that on the chrono-trick episode, too. Guess what? It's a good story.

It is a good story. No, that's fine. I mean, we're covering some ground here that we've talked about before, but it's worth talking about again in this new context. I know I've told this story before, but I discovered emulation through a game publisher's website, bungee, their professional website, like their actual official site. Back when I was waiting for Marathon Infinity to come out, their links section added something, a link to something called

Imulation on the Mac and that was where I discovered Ines and S&S 9x and I know this was like early to mid-1996 because that summer I went to Prague for a study abroad program

and I came back and one of the first things I did was dick around with a new version of Ines and played Bionic Commando very jangley but I was like man I'm playing to Ina Commando again

I love this game this is cool and I'm doing it on my computer I don't have to, you know, have that crappy old system anymore that was, you know, broke down and would never start the games properly the way I wanted them to. So it was kind of revelatory for me, even though it was a really bad version of, by a commando, sounded weird, I had to use a really bad controller. It didn't matter because, hey, this was like, you know, a way to get back to these games that I loved and had kind of had to pass on. And now they were back in my life again. That was great.

So we're not here. So we're not here to, um, advocate for, like, casual piracy. No, like, if a game just came out last week, don't steal it. Go, like, if you want to play it, support the people who created it. They deserve your support. Yeah. But on the other hand, if you would like to play Snatcher, a game that was published more than 25 years ago and has never been republished and is only available in a very small print run for Sega CD, which no one owns anymore.

And is a very important kind of formative game in the development. development of one of gaming's biggest autores, you should be able to play that somehow. Yeah. And I'm not going to judge anyone who downloads the ISO for Snatcher to play it and be able to experience it because Konami, who owns the game, has done nothing to make it available for anyone to have access to since 1993. So even if it's an unimportant game, like you want to play the home improvement game, play it. It's fine. Tim Allen's rich enough and that will never come out again in any form. Like, yeah, Tim Allen has always been horrible, and this video game will remind you. And it's good, I mean, that in the U.S., you know, there are exemptions to copyright law, you know, for museums.

And these museums, you know, museums and places like the Internet Archive have fought and fought and fought for these things. But, you know, history and appreciating history. I mean, you know, we've been doing this Retronauts podcast for well over a decade now, right? And it's like, none of us are librarians, right? Like, we're not, we are not officially employed by some sort of an institution to, you know, preserve a history or anything like that. But, you know, we're able to do this, like, on an amateur basis because this stuff is out there and is available. And I think it needs to be available for anyone who has an interest because that's part of keeping. History Alive too is making sure that it's accessible, not just to institutions and not just

if you're privileged enough to be able to travel to a library that has one of the world's last remaining copies of Little Samson and get some time on it and get them to take it out of the archives for you so you can play it on one of the world's last remaining NES systems, but that anybody around the world can experience, learn, study, and create new things from it. I mean, as I like to say, like, you know, Nintendo loves to push Shovel Knight, you know, on the switch. Shovel Knight has his own amoebo. Think, bet you, shovel night, people did a lot of emulating of, you know, old games to learn all about how they worked to create these cool new products. I think it's funny that it's come full circle and people are now preserving our work where there are seven years of retronauts that are not made available that we don't own.

Zift Davis doesn't care about them. One up is down. but somebody has uploaded all those to Archive.org. And I say, steal them. And there would probably be people saying that's disrespectful to the creators of the work to distribute it without their permission. No. No, I want those podcasts out there. Thank you.

And it's like I'm lucky enough that I was able to get my old book Power Up republished. But it's like if that was still stuck in copyright limbo owned by people who didn't care about it and didn't want to give me the rights back, it's like, do you think I'd feel bad if somebody like, downloaded a PDF of it and read it and was like, even if they said it was a crappy book, well, at least they read it. But if you want to download my old artranots and you also want to PayPal me, that's also, you know, a good idea too. I wouldn't be against that. The two being totally disconnected.

Yes, yes. Just a show of gratitude for work I don't own. But it's very rare for the people who created something to control the copyright in it these days, especially when we're talking about, you know, these popular video games that people love. Or unpopular video games. That's the real problem. There's so many thousands of games that are maybe not good, but maybe they are. Maybe they are good.

And I'm always grateful whenever something comes along like, you know, S&K 40th anniversary collection that Frank is working on, or the arcade archives, or, you know, the Sega Ages that M2 is developing for Switch. Like, those are great. Or even something like Columbus Circle reprinting Shibibin Man Zero for Super Famicom, which was only, it's a really fun game. And it was only available through a download service in Japan for a few years and then was no longer available. But they put it on a cartridge and that's awesome. But these are not even drops in the bucket. They're like molecules within that water drop within a bucket.

There's so much out there that is not going to be preserved and no one cares about. No one knows who owns it. No one, you know, wants to play it really. But it's part of history and it should be out there, it should be accessible. And if the only way to do that is through like a smoke monster ROM set, okay, well, that's how it is. I have to say one thing I think we've not mentioned, especially with the video game industry, and I think it's been underlined now with the collapse of telltale is that this, out of all the entertainment industries, there are no rights, there are no royalties, there are no unions. So creators often don't get paid more than the actual work that they do. And there's no ownership tied to it.

Well, who wrote this, who wrote this music, who wrote, you know, the code. In some cases in Japan, like, I think some composers are lucky enough to get a copyright on the music. But games as an industry, just they don't really care about the artists behind them as much as people had to fight earlier to get the royalties for music and television and movies. Yeah, I mean, if you buy Mega Man Legacy Collection, I don't think Tokoro Fujiwara and Akira Kitamura are making any money off of that. Kiji Inafune is not making any money off of that. It just goes to Capcom, and that's fine. like Capcom owns the rights. I'm glad that they're creating the legacy collections in games like that. But, you know, the people who actually made these games, they've moved on

and they have no stake in the creations. Unless, you know, it's a very, very rare case where you see someone like Yuzo Koshiro or Nasir Gabelli, like their names copyright, their names credited on the copyright screen. So you can assume, oh, they're going to get some royalties from this reissue. But those are exceedingly rare. Those are like atoms within the molecules, within the water drop within the bucket. I can think of three examples. And if you want, if, so like, again, like there's, sure, you know, okay, there's, there's ROMs of games on the internet, right?

Are some people, you know, downloading these because they just, they, they just want to steal and they just don't want to pay any money for things? Sure. I think a lot of people, and this, you know, we're kind of talking about this these days because Nintendo sued a big ROM site and then more bigger ROM sites were shutting down. in response to that lawsuit. But, like, a lot of people, I think, go on to these sites and they actually don't think that there's anything illegitimate about them. And that was some of what was in Nintendo's lawsuit.

It's that, like, you know, these sites were holding themselves out as being legitimate places to, you know, play Nintendo's games. And it's like, okay, well, back to the distribution problem again, what if Nintendo had a service where you could just type in a URL into your computer and such? Suddenly, you were playing Super Mario Brothers 3 in a browser. Like, wouldn't that eliminate a whole lot of the demand for these illegitimate sites? Like, what if you just were to do that? And I don't think that's a crazy, it's like, I don't think that's a crazy thing to say that Nintendo might do something just like that. Whereas Nintendo probably doesn't want to do it. I definitely think that the move to the sort of all-you-can-eat buffet of NES classics on

Switch Online is a good move. But I would love to see them embrace just more things that would combat, you know, if, like, if piracy is the path of least resistance, you would get a lot of piracy. I was going to say that's the only way to fight piracy is to make getting the legitimate product easier than piracy because I don't pirate, I've never really pirated games. I did emulate a lot of stuff, but I don't pirate TV shows and movies anymore because it's just like I have $2 and they're streaming on everything. or I don't need a pirate anime because anime comes directly to me. There's too much anime. I can't handle all this anime. It's like when was, you know, as I think Frank Sefaldi asked in one of his tweet

storms about this whole thing. It's like when was the last time you went and like downloaded a bunch of MP3s? Yeah. It's like if you just want, if all you want to do was just, oh yeah, that song, because that was what most piracy of MP3s was. It was like, oh yeah, Ahas take on me. I haven't heard that song since the 80s. It was not like I want the entirety of the, you know, the British rock catalog.

Yeah. Let me just grab that on Napster that I can listen to it. Well, now we have YouTube, and you can just type in, aha, take on me, and then you can click the official video, get monetized via an ad, and then just watch the whole thing. And it's like, if you're just thinking like, oh, I just want to go play, you know, pro wrestling for the NES now available on Switch, you know, you would just type that into your browser and then watch an ad, and then you're playing pro wrestling, and now Nintendo is making money. Yeah, I go to great pains to record my videos, you know, Game Boy World

and NES works and so forth from, you know, actual releases and photograph the packaging and stuff. But sometimes that's not possible. And, you know, I'm trying to chronicle the history there. So occasionally I resort to ROMs and I don't think anyone's getting hurt for it. I've, you know, on the contrary, like people have said, oh, this game looks really cool. I'm going to go play that. So in some degree, I'm, you know, promoting sales or whatever. So I have no compunctions about doing that for, you know, for those purposes.

But I always try to buy games, if I can, to support the people who created them, especially, like, new releases. I don't want to pirate those. I don't think anyone should be pirating new games. But again, the issue here is just like there's so much stuff that's inaccessible, unavailable, and the games industry just needs to get its act together. And until they do, I feel like piracy is a viable alternative to, you know, an industry that cares about its own history. And, and also, I don't, I don't know if the games industry is going to get a tank together. It really won't. And it's like, so basically, until these things become public domain, I mean, you know, which is going to take a very long time, I mean, they're only going to get preserved, you know, through things that are, that are not in comportment with copyright law.

And that's just, that's just how it's going to be if these things are actually going to survive. I mean, again, like, with video games, it's great because video games are digital files. Also, people sort of started getting going with preserving them pretty early. So a lot of stuff is preserved and it's not going to disappear, which is nice. There's a huge problem right now with books, you know, because there's so many books that were just printed on paper. And librarians have these books and they're just like, they're just trying to preserve the books and run out the clock. Yeah. And the Gutenberg project stalled out.

right. It ran out of funding or something. Oh, I think so. Maybe. Yeah. I think I heard something about that. Yeah. It's just a real big mess. It's just a very big mess because it's, they call it the 20th century black hole, which is that everything we, you know, all of human history, everything that we've ever saved is all available on the internet up until 1920, which is, you know, where things stopped becoming public domain. And then nothing is there because it's all copyrighted. And then things start up again because there's legal. digital versions of it, but there's a big black hole in the 20th century through the year 2000, basically, where things can't be digitized because they're copyrighted, because we can't find the person who copyrighted it because they're dead, you know, everything, just it's a whole, whole big mess. And things just, things die. Libraries burn down. Books are lost. Films are lost. Yep. Well, speaking of dying, this episode needs to die because our next guest is here and I need to let them in. So it is time for us to call this episode a day. But thank you to everyone who wrote in with your letters. We will read those because there's a lot of great letters and a lot of different angles and opinions about the nature and the role of piracy in video games. In the meantime, again, we're not advocating casual piracy here, but we also recognize that it is a fact of life within video games.

And it would be cool if it didn't have to be. But for the time being, it is. So thank you, Bobby Najari, for requesting this episode. It was an interesting discussion. I wish Frank had been here to discuss it with us because he has kind of inside track on some of this. But so it goes. Thank you, Chris, for coming. And Bob, of course, for always being here.

You're so reliable. And thanks everyone for listening. So for Retronauts, this has been Jeremy Parrish. You can find me on the Internet on Twitter as GameSpite. And Retronauts itself is at Retronauts.com and on the podcast One Network and on iTunes, where you can download for free, or you can pay $3 a month, get it a week early with a higher bandwidth with no ads at patreon.com slash retronauts, and that is how I put a roof over my head. So please help. Bob.

Hey, it's Bob Mackey. I am on Twitter as Bob Servo. And I have other podcasts, by the way, and those are all found on the Talking Simpsons network. Go to patreon.com slash Talking Simpsons. You can find all of my other stuff there. The podcast Talking Simpsons, which is a chronological exploration of the Simpsons and what a cartoon, which is look at a different cartoon from a different series every week. Those are free, of course, on the internet where you download podcasts. But if you give five bucks to patreon.com slash talking Simpsons, you get all kinds of stuff on top of that. Lots of bonus miniseries, tons of bonus episodes. Lots of exclusives there. And we're having a lot of fun over there with live shows, too. So maybe I'll see you in the future. So that's

patreon.com slash talking Simpsons. Thank you. Chris. Hi. I'm Chris Kohler. You can find me on Twitter at Koboon Heath, K-O-B-U-N-H-E-A-T. And as I stated previously, I edit things at Kotaku. Mostly I edit things. I occasionally write things. Usually when I write things, it's about either old video games or Japanese curry. So if you like either of those things, please stop on by, find an article by me, click on my name, and it'll bring up everything I've ever written. And then just click on each of those one million times, please, thank you.

And this has been Retronauts. We'll be back again with another episode next week. In the meantime, let's all go to the pirate bay, let's all go to the pirate bay, let's all go to the pirate bay, and download lots of games. Thank you. Thank you. Thank you. Thank you. With Domino's week-long carry-out deal, you can carry out large three-topping pizzas, and now, medium-thre-topping handmade pan pizzas for $7.99 each.

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Carry out only. You must ask for this limited time offer. Prices participation in charges may vary. The Mueller report. I'm Ed Donahue with an AP News Minute. President Trump was asked at the White House if Special Counsel Robert Mueller's Russia investigation report should be released next week when he will be out of town.

I guess from what I understand, that will be totally up to the Attorney General. Maine, Susan Collins, says she would vote for a congressional resolution disapproving of President Trump's emergency declaration to build a border wall, becoming the first Republican senator to publicly back it. In New York, the wounded supervisor of a police detective killed by friendly fire was among the mourners attending his funeral. Detective Brian Simonson was killed as officers started shooting at a robbery suspect last week. Commissioner James O'Neill was among the speakers today at Simonson's funeral.

It's a tremendous way to bear knowing that your choices will directly affect the lives of others. The cops like Brian don't shy away from it. It's the very foundation of who they are and what they do. The robbery suspect in a man, police say acted as his lookout, have been charged with murder. I'm Ed Donahue.