The fight to save old games

In episode two of our gaming mini series, The Verge's David Pierce chats with Polygon's Russ Frushtick and Chris Plante about the obstacles around both preserving and emulating video games from discontinued hardware. Email us at [email protected] or call us at 866-VERGE11, we love hearing from you. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

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• 0:33David Pierce?

  Welcome to The Vergecast, the flagship podcast of Horizontal Scan Lines. I'm your friend David Pierce, and this is the second episode in our three-part mini-series about the future of gaming. And today, to talk about the future of gaming, we're going to talk about the past of gaming. Specifically, these decades of video games on old consoles and old media systems, like remember the cartridges you had to blow in? What happens to those games as the companies that make them disappear, and the consoles that they worked on disappear, and the CRT TV you plugged it into disappears? How do we save those games? Do we want to save those games? What does it mean to save those games? That's what we're going to get into today. My colleagues from Polygon, Chris Plant and Russ Frushtick, are both back with me today to get into all of this.

• 1:17David Pierce?

  I'm going to consult with them and then go out, try to find some answers, and then present them with my findings. Let's get into it.

• 1:25David Pierce?

  Russ, hello, welcome back. Hello. Chris, hello. I'm back, baby. We're doing this again. I'm excited. For our second topic in this series, we picked something, I think, if I remember correctly, I brought this up when we were talking about what we wanted to cover on this series, and you immediately were like, "David, you know nothing. Let's explain how this actually works." Which makes me very excited about this, because this is a subject I find very interesting and know very little about, and I'm excited to dig into the weeds of it. Which is essentially how we adapt and change very old games to be able to play them now. Some of that is old hardware, some of that is you can play old N64 games on your phone. There are like people who exist in the world to try and preserve these games. I guess it's, would we call it emulation?

• 2:10David Pierce?

  And preservation as a topic. Is that a good way to look at it?

• 2:13Speaker 02

  I think there are two separate concepts there.

• 2:16David Pierce?

  Okay.

• 2:16Speaker 02

  Emulation and preservation are like two, obviously related, but there are a lot of people that are focused on preservation that aren't using emulation and vice versa. But they are both equally important when it comes to preserving the history of video games overall.

• 2:30David Pierce?

  Catch me up just really quickly. Again, this is truly a world I know very little about, except that it's very popular and it's the kind of thing that like a lot of people like to buy an Android phone just to do. Like, one of the things I hear over and over is people like to buy Android phones just to play old video games on them. And I'm like, sure, that's a, that's a reason. How big a thing is this? Like, you guys are in the day to day of covering games. Like, is this kind of emulation world something you spend much time thinking about?

• 2:54Speaker 02

  Yeah, honestly, I mean, it's not just people just downloading like a ROM online to play Contra on their PC. Nintendo uses emulation on their official Switch Online service to allow their games to run on modern hardware. So everyone is using emulation at that point to play older games. But emulation is not perfect when it comes to recreating every aspect of how the game originally ran. And some of those aspects are bad. Like, the game ran at 10 frames a second when there were 30 bullets on the screen. But that is like the true experience that developers kind of created when they originally made the game. So a lot of people are really focused on recreating those experiences

• 3:36Speaker 02

  as authentically as possible on as many platforms as possible.

• 3:40Speaker 03

  And I think that's where Frash mentioned the difference between emulation and preservation. Preservation is trying to either recreate that perfectly, which we will get into with things like the Mr. Device or System, or making it so that you can just still play your original hardware, right? Like, can you find an old school CRTV and an original Super Nintendo and the original game? They all kind of can blend together. You know, you can get emulation that is close to preservation perfect, but it gets really nitty gritty really fast. And we thought after last week's episode, you didn't kick the kind of purist nest hard enough.

• 4:22Speaker 03

  So this week, you would really go for it and awaken the beast within.

• 4:28David Pierce?

  Yeah, I'm partly fascinated by this because I think I have always struggled with this idea that you should preserve something exactly as it was in the time in which it existed, right? Like, the idea that a video game from 25 years ago deserves to be played on a crappy console and a crappy TV that is like, only has three channels and rabbit ears is like, I've always had a hard time with that because part of me is like, well, most things are better now, right? It's like, we don't eat like cavemen because we have better diets now because we've figured out how to not die. And a lot of the same stuff is true. I think like, this stuff gets better and I think a lot of these ideas about how do we preserve what these games were, sort of in the essence of them, so that they don't go away. Separating that from TVs were worse 30 years ago and they're better now and maybe that's

• 5:13David Pierce?

  okay. It has always been hard for me, even just like emotionally.

• 5:17Speaker 02

  I'm about to blow your mind even further. The problem is, all of these games and all the art in these games was made for those shitty TVs.

• 5:24David Pierce?

  That is true. I play like, the old, old, old versions of some of these games and they just look like crap on new TVs.

• 5:31Speaker 02

  Yeah, because they were designed for CRT TVs, like, it's really wild.

• 5:34David Pierce?

  Yeah.

• 5:35Speaker 03

  Yeah. I guess the big question that I have for you is, the mix of legality and purpose of emulation and preservation?

• 5:44David Pierce?

  I was just about to ask, am I in for like, do I have to go talk to a bunch of lawyers about the rules around this stuff?

• 5:49Speaker 02

  I think you might.

• 5:50David Pierce?

  Okay.

• 5:50Speaker 03

  I think you will, because, yeah, pirating ROMs and playing them on your emulated handheld is illegal. Like, that's just like a hard, a hard truth of it, right? Whether or not it is like, morally okay, or you personally can justify it, or you own the game and then that's, you feel that that is comfortable enough, that's all, I think, very valuable. But then, when we get to the question of preservation, a lot of these companies are not preserving their games and either are actively or passively creating blockades that would allow people to preserve the games for them. So by that, I mean, why can libraries not... Allow you to emulate video games, right?

• 6:35Speaker 03

  Like, that seems fine. That seems like a good and reasonable thing. You know, there are video libraries where you can see Broadway plays that were filmed, right? Like, there are libraries that allow for things that are legally tricky, and you make that kind of carve out. And I think what has kind of led to this emulation boom is publishers being so protective of their stuff, so unwilling to make it more widely available, or their own, I think, legal murkiness when they look back at their old paperwork. They might not even know who owned certain things, or they might not even have the original source code. So there's just a lot of problems that I think are getting in the way of preservation.

• 7:19Speaker 03

  And emulation has been able to answer those while kind of creating its own.

• 7:25David Pierce?

  Yeah, that's really interesting. Okay, two more things I'm curious about, and then I'm gonna go chase a bunch of people down and see what I can figure out. The first thing, Chris, you mentioned the Mister. I had never heard of the Mister until you mentioned it. Tell me about the Mister.

• 7:38Speaker 03

  I'm not going to. I said it's your turn to kick the hornet's nest, not my turn.

• 7:44David Pierce?

  Oh, crap, okay.

• 7:46Speaker 03

  But the basic idea is, what if you could virtually recreate the physical boards that powered video games in the past? So you are not creating an idea, an emulated version of the Super Nintendo. You are digitally recreating the Super Nintendo, so it should run one for one. I think that's right. I think. There's a real chance that you play that tape back for him, and he's like, "I think I need to go fire somebody." And his name's Chris Plant. But it confuses me. I can say that I have one right behind me, and it plays Simpsons Arcade or whatever really, really well, and that's pretty cool.

• 8:29David Pierce?

  That's the dream. And then the other thing is, Russ, when we were planning this, you mentioned games that are, for one reason or another, unemulatable, and the challenge that comes with that. What's on your mind when you think about that? I don't think there's a game that is 100% unemulatable, but there are games that are surprisingly resource-heavy for when they came out. The example that springs to my mind is Yoshi's Island, the original Yoshi's Island, which came out on Super Nintendo. People use the Start menu of Yoshi's Island as a benchmark for whether a device can handle an intense handheld emulation experience, because it uses this wild Mode 7 3D art thing that doesn't exist anywhere else in the game.

• 9:14David Pierce?

  But that's an example of something that is like, that's what people look at when they're testing like an emulation handheld, for example. And there are a number of those examples, I'm sure, that pros can point you to, but that was the one that jumped to my mind.

• 9:27Speaker 03

  I'd give two other types of emulation where you are gonna have trouble. Anything that required specialized physical hardware. So like WarioWare Twisted, I think, had a special cartridge. I'm curious about how people emulate things like that, and they preserve those things.

• 9:43David Pierce?

  Yeah, Wii games, for example.

• 9:45Speaker 03

  Yeah, and also online games. As we get more and more to, you know, always online video games, Fortnite. Like, what does it mean to emulate or preserve Fortnite in its many manifestations, right? Because Fortnite today is, might as well be Fortnite 12.

• 10:05David Pierce?

  Right.

• 10:05Speaker 03

  It is not the same game that came out, or was even out a year ago. And I don't know. I don't know the answer there.

• 10:12David Pierce?

  Okay. Yeah, so I think I need to go figure out, basically, what does it look like to preserve this stuff? Is it allowed? And then like, how are we as people supposed to interact with it, right? Because I think there's a version of this that it's like, it's cool that this stuff exists for sort of purely archival purposes, right? Like, put Fortnite 1.0 in a museum, it's cool that we can see what that looked like at the time. That's one version of it. But there's also a version of it that it's like, what if we as people who like to play games had access to every game that has ever existed in something like the form in which it was intended to be consumed? That's very cool, and very exciting, and super, super complicated for 1,000 reasons. So I think I'm gonna run both of those things down and see what I can come back with. Does that sound good?

• 10:53Speaker 03

  Rock and roll. I love it.

• 10:55David Pierce?

  All right. We're gonna take a break. I'm gonna go explore a bunch of stuff. We're gonna come back in a couple of weeks. But for you, thanks to editing, it's gonna be much faster. We'll be right back.

• 11:10Speaker 04

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• 11:41David Pierce?

  All right, welcome back. It's been a few weeks. I've gone all the way across the country. We're recording these, I've discovered, where I'm in a different place every single time we record. This is like a fun game we're playing for an audio podcast that no one will get anything out of. How are your lives? Tell me everything. What have you been up to?

• 11:56Speaker 03

  It's been such a thrilling time. Frush actually solved a cold case 30 years in the making.

• 12:03David Pierce?

  Wow, huge. Yeah. It turns out it was me the whole time. I just didn't want to admit it. So it was actually a pretty easy case to solve. It's open and shut when you get to it. Well, okay. Emulation and preservation. This turned into kind of a strange, like philosophical rabbit hole for me of talking to folks about what it means to keep video games around. And what we did last time was I had sort of five pieces of evidence for a theory that I developed in the course of talking to people. And we talked about why handheld gaming is the future. This time I have come to you with, I would say, five ideas about how we can make game emulation and preservation work for everybody.

• 12:39Speaker 03

  Okay.

• 12:40David Pierce?

  Some of these I think are very good ideas. Some of these I think are very bad, impossible ideas. But they are ideas that I have heard from people over and over. So I'm going to throw them all at you. And we're just gonna, we're gonna litigate what happens to old games. How's that sound? I love it.

• 12:53Speaker 03

  Why am I afraid that you're gonna throw five very good ideas at us? And all of them are going to end with, unfortunately, that requires legal changes. And there will never be any movement on this for at least 10 years.

• 13:08David Pierce?

  I have really great news for you. Idea number two is change all the laws. So we're gonna get to that. Okay, cool, cool, cool, cool, cool. Comfort. We talked a little bit about this up top, but I just- Just to like, reset the scene here a bit. Question I found myself asking everybody is basically like, why do we want to preserve old games? And I got a lot of good answers from smart people, but I just have a couple that I want to play for you right now. One thing a couple of people told me was that they compared the video game industry now to like, the early days of the film industry. Which I think is a fairly common thing in this space. It's a useful metaphor for how we think about how long things live and the formats of them. And a thing that people told me that I had not realized, but is very true is there's a huge amount of stuff from like, the twenties and thirties in Hollywood that is just gone. Like, fully gone, does not exist.

• 13:53David Pierce?

  No one will ever see it again because it was made once, it was put on one thing, it was shown in theaters because that was the only way to watch movies. And then it just died. And those things are gone. And there's this real sadness in that industry about how we lost what turned out to be these crucial parts of film history. But at that time, it wasn't history, it was just like, this weird lark that people were doing. So there was no feeling that this is a thing we need to preserve. And there are a lot of people who feel like, the early days of the video game industry in particular, has really run into that. One of the people I talked to for this was a guy named Frank Sifaldi, who I'm sure you guys know. He runs the Video Game History Foundation. And he told me a bunch about the idea of the old film industry, and he made that same comparison.

• 14:34David Pierce?

  But he did this really great thing where he was like, let me explain to you what it's like to have a video game right now. And I just really enjoyed the way he explained it. So let me just play this for you real fast.

• 14:43Speaker 05

  We often compare it to like, if movies were only released on like, VHS ever. And you want to watch Back to the Future, alright, well you have to go on eBay. And you have to like, find an antique VHS copy that's degraded a little bit from use of Back to the Future. You have to find a VCR that works. A TV that it plugs into, or you have to like, find the external scalers that make it look correct on your modern TV. You might need a time-based corrector, because, and those are really expensive because the magnetic flux signal is like, out of sync or whatever. You know what I mean? Like, that's where video games are, in the legal world. That's literally the same thing.

• 15:28David Pierce?

  I love this explanation, and it makes it seem like a mess. Does this feel right to you? Like, does his way of thinking about it track?

• 15:33Speaker 02

  Yeah, so in other words, what he's saying is because games are specifically designed for very specific hardware, in order to experience them now, the way they were intended, you need to have the hardware itself. So in his example, you need a VHS player to play a VHS tape, and that's the case with so many games, which I think is fair, especially for the games from like the 80s, 90s. Absolutely. I think it's gotten a little better, but it's still definitely true.

• 16:04Speaker 03

  I think there's another way of kind of hearing what Frank said that I had not considered, which is with an original movie, you would have the original elements, like the actual film that you shot, right? Before it then gets like transferred over and over and over again. And the comparison to a VHS tape is really interesting because we don't have the source code for so, so many games. The original code of most games is lost, even very big games. And with a VHS tape, there's a way of hearing that as we are not even getting the best version of it. We're just getting a version of like how they could print it at the time. I think that that gets into like real nitty gritty of preservation.

• 16:47Speaker 03

  Are you the person who thinks that a game should be experienced exactly was it experienced in 1996 for, you know, Nintendo 624 or whatever? Or do you think it should be experienced like literally the code that they wrote? And yeah, I had never considered it like that. If you think about it as the latter, I mean, wow, that would be, that actually really messes with preservation because I can think of very, very, very few games where the code of a game is available.

• 17:14David Pierce?

  Yeah. So, okay, you just brought up a thing I was gonna get to later, but let's just talk about this now. The single most controversial thing I talked about with all the people I talked about for this was this question of is the right way to preserve a video game to preserve it exactly as it was and exactly as it felt and like the most true to the experience at the time? Like, should the way you play a game from the 1980s be? On a 1980s TV in like a shag carpet living room with fluorescent lights everywhere. Like, should it be as close to what it was when it came out as possible? Or are there ways we can like modernize and improve these things? And a lot of people use the word artist's intent, right?

• 17:55David Pierce?

  Like, to what extent can we infer what they wanted to do and were technically constrained from being able to do versus what was it at the time? And which of those is actual correct preservation? And I have a bunch of, I have a bunch of theories and some answers that I got that I'm gonna play for you guys. But I wanna know what you guys think about this, cuz I suspect this is a debate that's happening all over the gaming industry all the time.

• 18:16Speaker 02

  Yeah, I think there are people that only see what you were describing early on, the experience, you have to have an 80s TV and you have to be running on original NES hardware. And I think there are definitely people that consider that to be really the only way you can experience an NES game from that era properly. I think the fear is that if you view that as video game preservation, it really puts a box around the number of people that can then experience the thing moving into the future, because so many people are not gonna have that hardware, not gonna have that setup. So by gatekeeping it and saying that's the only way to do it, I think that will limit, really, you know, I think the one thing we can be sure of in terms of artist's intent

• 19:01Speaker 02

  about video games from that time and even now, is people who make games want people to play them. And as many people as possible to play them, because they spent all their time and energy and soul into this thing. So if the pixels don't look quite right, even though that's not ideal, I think they would probably still rather people are playing them than not.

• 19:21Speaker 03

  Yeah, I mean, why not both is kind of my approach. I think of film preservation, cuz it is a really useful comparison here. Most film preservation these days is like 8K, 12K, even restoration of, if they can find them original elements right. And then they go in and they can digitize that and they can, you know, actually like clean up the image and try to get the color closer to what it would have actually looked like and use. AI tools to get rid of damage to the film and various things like that. I think that like for most people, that is the right answer. Because again, it does give you an experience weirdly closer to what it was like to watch back in the day.

• 20:02Speaker 03

  Or again, the artist's intent. That said, there's a YouTube channel that I follow from a person who uses a DIY tool that captures old film trailers, like actually off of 35 millimeter film.

• 20:16David Pierce?

  Oh, wow.

• 20:17Speaker 03

  And those, you know, they're not putting any extra work into the preservation. It is as it was after degrading for however many decades and everything else. And for certain movies, that's like a very appealing thing. I think there are a lot of people who like Star Wars because they saw Star Wars prints that had been screening for decades by the time it got around to them as a kid in the eighties. Right. And that's their idea of Star Wars. So I think when you can have both with games, I think that is yes, having the original SNES experience and then having one that works on your emulator, having a Nintendo 64 and now having one that uprises to 4K on your emulator. I think those are both good. I also think that there is a middle ground in Mr.

• 21:01Speaker 03

  And I have a feeling that we'll talk about Mr. A lot more and hopefully people can explain it way better than I can. But when you are able to kind of recreate the original hardware in digital form. I think that allows for what I suspect a lot of people will say, which is some of these NES games in these classic retro games, you actually, they don't really work on modern screens. Like you actually need the, the kind of like jumpiness of the frames and other things to experience them appropriately. And that is something that can be created with a tool like Mr. But I'm excited to hear more because it sounds like you've like, you've spoken to all the right people.

• 21:40David Pierce?

  Yeah, I think the, the place that I've landed, I think is it's kind of about how you think about the goal of preserving these games, right? Like, I think there's a divide I've come to think about where it's like, and this actually informs a lot of what we're about to talk about. Where one way of thinking about what we do with video games is, is like as sort of historical artifacts. Right. And that's where. The goal is to understand them as they were when they were around. Right. And I think like, one of the things Frank talked a lot about when he and I talked was this idea that one of the things the Video Game History Foundation does is context. Right. Like, they have this big idea of you can't understand a video game without understanding the world around the video game. So not only do we have to preserve the game as accurately as we can, we also have to like, bring in these other things

• 22:24David Pierce?

  around it, whether it's commercials, or like, things going on in the world, or other games that were before and after, to help you understand what this game meant in the world. So there's a version of it that I think, I think you're right, Chris, that is like, this should be as perfectly preserved as possible for that particular use, because you should understand it as a thing in space and time there. But then the other half of it is like, what if you want people to play these games? And this is where I really come to kind of Russ, your way of thinking about this. Like, these games can be better now. And in so many ways, like, one of the things Frank was talking about was, there's this little thing, actually, you know what, let me just play it. He gave me this whole really funny speech about the NES and blinking lights. Let me just tell you about the blinking lights.

• 23:05Speaker 05

  I think preserving that experience often requires, you know, just fixing up little things. You know, really, really easy example is the NES, the 8-bit NES. I worked on a few collections that had NES games in them. And one thing that was an absolute no-brainer for us was, the NES has a limitation on how many sprites, like, moving objects, can be on one horizontal line. And if you go over, I think the number is eight, if there's more than eight objects on one line, they start flickering, because the NES can't render that ninth object. Right? So what it does is, in hardware, it just kind of turns one

• 23:48Speaker 05

  off, and, you know, like, it alternates turning them off at that point. And so, a really no-brainer thing that we do is, like, no one wants this, is we up that limit to, I mean, it might be infinite, I don't know, but we have the limits, and we allow more than eight sprites on a scan line. And all that does is eliminate flicker. And it's like, did artists maybe sometimes intend for there to be flicker on this part? You know, theoretically, but I think for the most part, artistic intent was, like, that this look good. You know? And we don't have to be slaves to this hardware anymore.

• 24:24Speaker 02

  That is a great example, quite honestly. Like, he's right. It's so rare to think of a scenario where an artist or a game developer wanted that to be flickering, but they just had to because that was the only way to pull off the game.

• 24:37David Pierce?

  Yeah, this idea of like artist's intent, I think, is always sort of tricky, right? Because it's like, how do you guess what somebody was thinking about when they built these things versus what was just like a technical limitation versus like art comes from constraints? You know what I mean? So I think it can get tricky, but things like that seem to me to be not all that controversial. I suspect there are people out there who will think that is like bastardizing what this game was. I increasingly don't buy that argument.

• 25:00Speaker 02

  I think where it gets interesting and tricky is when you talk about where that line is, right? Because you can certainly go past that line and start making changes that arguably make a game look dramatically better, but are pretty far afield from what the original source material was. An example that jumps to my mind, just recently, a collection of Metal Gear Solid games was released. And it's every Metal Gear Solid game, basically one through three, and the original NES Metal Gear Solid games. And the original Metal Gear Solid came out on the PlayStation One. And in this collection, the game runs at 240p. And if you push out a 240p image to a 4K screen, holy cow.

• 25:41Speaker 02

  That looks like jaggy and messy and not the prettiest look. But emulators and people that work in emulators have figured out ways to upscale an image from a 240p image to look actually quite clean and quite good on a 4K image, but it looks dramatically different from what it looked like when you were playing it on a PlayStation. And is that a bridge too far? Or do we just like that people have the option to do that? That's where it gets tricky.

• 26:12David Pierce?

  I tend to increasingly think that is not a bridge too far. I really like, so this is ultimately like theory number one of how to make this stuff work is make the games better. Make them work the way that they would if you were building them now, which is obviously there's a lot of like interpretation and complicated stuff in there. And I think reasonable people can disagree on whether that's the goal. And Chris, I think that is not exclusive of the idea of we should also preserve these things as Cultural artifacts, right? But I think that's not gonna be a big reason for folks to do this, right? And I think one of the things I've heard a bunch in talking to people is that the problem with emulation, and I suppose to some extent, this brings me to idea number two about how to make emulation and preservation more successful, is that it's not a very good business. One of the things people have said to me that I thought was surprising was that if you're Nintendo,

• 26:57David Pierce?

  or Sony, or anyone else who has been like making games for a very long time, everybody brings up Nintendo just because it's sort of the best example of like, they've had a million different consoles over a million years, and figuring out what to do with those things over time. Nintendo kind of has that challenge more neatly than anybody. So everybody talks about Nintendo when you ask about this. They also just have the longest history of great games that people love. But if you're Nintendo, I always sort of thought there was just like a database of games sitting somewhere, and you just like click eight buttons and it becomes available again. And I have been aggressively disabused of that idea, that actually it is more work than people give it credit for to make that stuff available. And if you're Nintendo, you can probably resell some of those games, and that's cool and exciting.

• 27:41David Pierce?

  But the case a couple of people made to me that I can't stop thinking about is that if you're Nintendo, or any other game maker, you can spend your finite resources and energy bringing these old games forward, which will sell to some people. There's a cool nostalgia factor, you can you can help some people encounter new kinds of games. Or you can spend that time and money and energy building new stuff that is going to make you lots of money and sell more consoles and be good for your bottom line over time.

• 28:09Speaker 03

  I would clarify a little bit on that, I think.

• 28:11David Pierce?

  Okay.

• 28:11Speaker 03

  Which is, it is very, very easy for Nintendo or anybody else to take a bunch of ROMs, put them into an emulator, and put it on the Switch. That itself is very, very easy.

• 28:25Speaker 03

  What would be difficult is the paperwork.

• 28:28Speaker 02

  Yes.

• 28:29Speaker 03

  Which, that is not for me to say that that is an excuse. I think that's actually very legitimate, especially, I think a lot of people believe that developers should be paid for their creations, right? And a lot of these games were made before people could even conceptualize something like this sort of emulation, or a game being widely available like this. And digging up, who even owns some of these games? I mean, I think, I'm curious if people talk about this in any of your interviews, but I think listeners would be shocked how many popular games, nobody knows who owns them.

• 29:05Speaker 02

  Yep.

• 29:06Speaker 03

  Or knows where the original code is. They have been, over the years, caught in so many various mergers or acquisitions, that that paperwork is gone. And if you've ever wondered why your favorite game is just never made available on the Nintendo Switch, often the answer isn't somebody's punishing you, it's that they would love to, but like you said, it's really hard to figure out how or if it's even possible. So people just don't.

• 29:35Speaker 02

  Yeah, I would also add to your point about kind of triaging where your priorities should lie. You're right, it's, it is more time that you would spend bringing these older games that a lot of people wouldn't play. The amount of time required is so small compared to the amount of time required to make a brand-new-from-scratch game, given the fact that, at least for the first-party games that they have access to, like, they don't have to worry about that paperwork, they own all the stuff already. I mean, that's really what they've done with the Nintendo Switch Online subscription model, is like, those are all running through emulators that emulate an N64, a GBA, or whatever, and they kind of pump them through, and Nintendo has some stipulations about,

• 30:19Speaker 02

  like, we want it to look pretty close to the original hardware, but they've also released ports that are like, pretty rough on there, pretty not well amulated. I think the original version of, oh, Green of Time, looked pretty rough on the Nintendo Switch Online version, so.

• 30:35Speaker 03

  I think they're still doing it. I don't think it's that hard for them to do it. And it certainly hasn't prevented them from making new stuff as well. And I think you're seeing a lot of companies like Microsoft as well and Sony doing this with their back catalogs because they have the access to that back catalogs and they own the games already, so might as well. It just adds more value and more incentive for people to buy the hardware.

• 30:59David Pierce?

  Yeah, no, I think that's right. And I think over time, that's a victory, right? Because it is a small but predictable business for those companies and they can kind of add to it over time. But like, I mean, we talk about like the weird incentives of like venture capital all the time on the show, right? And one of the things that it does is say, like, old games are like a lifestyle business, right? Like, it's a nice thing, it's predictable, there are people who will like it. There is no earth-shattering gigantic business in that, right? And the incentives in the other direction are like, if you can go out and stumble into being the next Fortnite or Call of Duty or Roblox or whatever you want to be, that's so much sexier that I think, especially if you are in a position of having to like make hard decisions,

• 31:42David Pierce?

  it's just so tempting to go that direction, even though the audience and ability to do that older stuff is there. And my hope is that calculus like shifts more over time, especially as a lot of these companies try to like make smarter decisions about how they make games because this business has gotten so chaotic. But I don't know, a lot of the folks I talk to are not crazy optimistic about that happening, but I sincerely hope it does.

• 32:06Speaker 03

  I think we're all on the same page. And I think where the sexiness of this, if there ever was or is or will be one, is the streaming services, is subscription services. Because it is a number that you can add to the list of how many games are on your platform. If you can easily go from a platform that has 100 games to 600 games, that is appealing, even if it is disingenuous maybe. But I agree. And I think Sony said as much when they were asked about backwards compatibility versus Microsoft, you know, like, it does not behoove us to spend all of our resources on a thing that we have tried to appease fans with time and time again and we do not see a big payoff for.

• 32:50David Pierce?

  Chris, you just brought up the thing I am perhaps most excited to talk about in all of this, which is what I would call Spotify for video games. Before we get into the Spotify for video games thing, there is, I do want to go back to the thing, Chris, you were saying about basically the paperwork part of preservation and emulation of video games, because that is something I heard a bunch about. One of the people I talked to for this was Chris Kohler, who was a video game journalist for a long time, now works at Digital Eclipse, which does a lot of really interesting work about emulation and preservation of video games. And he was saying they worked on a Teenage Mutant Ninja Turtles thing. He basically said it's a miracle that that collection existed, because there are so many different rights for different versions of those stories and different actors and

• 33:33David Pierce?

  different characters and different platforms of different games in different countries, that he called it kind of a minor miracle when all of those things come together. And then I asked him, like, is there a version of this that is just totally impossible? And he thought about it for a while, and he's like, I don't really want to say, because as soon as I say this, like, it'll come together and it'll, everything will be great. But he did say that anytime somebody comes to them and says, can you bring back this big hit game that we loved when we were kids? They've almost always looked into it, and it's almost always just logistically, like, paperwork-wise, impossible. But then he told me a story about NBA Jam that I'm just gonna play for you very quickly, because I thought this was a really good example.

• 34:06Speaker 06

  Something like NBA Jam, where NBA Jam has all of these likenesses of all of these individual basketball players, and it's like, they will never, ever, ever be able to re-release, you know, the first NBA Jam. But does that mean that literally, like, no one gets to play it unless they go and, you know, buy an aging piece of hardware and spend a bunch of money getting a Super Nintendo running on a, you know, it's like, does that mean literally, like, you don't ever get to experience that, that important, very important part of history? And I think that that's, that's an untenable position.

• 34:47David Pierce?

  I love this because A, I think NBA Jam is like a perfect example of why this is so impossible to do because you have to call up a bunch of NBA players, like living and dead, and try to convince them to do this with you. But also, kind of perfectly describes this tension, right? Between this stuff feels intuitively like it should be available in some way. And it is a part of history. Like NBA Jam is maybe the game I personally have the most childhood nostalgia for. I played the shit out of NBA Jam and I loved it so much and I miss it terribly. And it is sort of sad that in a very real way, that game is probably never going to come back into my life in a meaningful way. And like, I just, I like that as a way of thinking about like, why this is complicated

• 35:28David Pierce?

  and for perfectly valid reasons is complicated, but it also sort of sucks that that's the way that it works.

• 35:34Speaker 02

  Okay, but it kind of then begs the question, and again, I'm sure this is part of this episode, of obviously there are ROMs out there that you can get within 30 seconds of Googling NBA Jam ROM. I'm sorry, like I don't want to like step too far afield of Midway and their lawyers, but like-

• 35:54David Pierce?

  You just did the same thing that almost every single person I talked to for this show did, which is you kind of can't have this conversation without basically saying, yes, this is illegal, but it shouldn't be, go do it.

• 36:04Speaker 02

  Well, I'm not necessarily saying go do it, but I am saying like, I think everyone who knows this space knows how easy it is to do.

• 36:13Speaker 03

  But there's step one and there's step two there, which is, yes, there are ROMs, and that's creating more VHS tapes, right? Like, that's what we're kind of talking about there. And the problem with relying on ROMs and relying on piracy, forget like all the legal stuff for a moment, is it's just not organized. So it's still so easy for things to be lost and to slip through the cracks. It really actually relies on popularity and a collective willingness to remember something versus something that is more official, like a library, where whether or not it's popular is irrelevant.

• 36:54Speaker 03

  It existed, it will be preserved, and then if, even if people forget about it for 30 or 40 years, when people go back to look for it in the future and there is suddenly a reason to care, it'll be waiting for them. It won't just be lost because it didn't keep getting uploaded over and over again onto different like random ROM sites that were getting whack a mold by Nintendo and other companies.

• 37:15Speaker 02

  Yeah, but don't you think that the, you know, non-centralized distribution of this stuff ensures its longevity rather than relying on like a singular?

• 37:27Speaker 03

  Not at all. I mean, I appreciate a Bitcoin mentality, my friend, but...

• 37:32Speaker 02

  That's not me. I'm not that guy.

• 37:34Speaker 03

  I think it's idealistic in that, again, it's so informal and it's so easy for those sites to get taken offline at any moment. Here, actually, there's a really easy way for me to point this out. When Napster was popular, and this is when I was in high school, there were a lot of songs that were like alternate versions of songs or live versions of songs that I loved and some of my favorite music. And I cannot find it anymore. And a lot of those, I was like, why don't you download? It's gonna be on Nap. They're like, it's in the air. Everybody's sharing it all the time. It's just available there forever. And now, I'm sure it exists. I'm sure it's on some like, you know, 40 and 50 year olds' hard drives somewhere, but they're not sharing music anymore.

• 38:17Speaker 03

  And then younger people don't care about those bands, so it's just gone. And that is what I always worry about with ROMs in the world of gaming is it is easier for it to disappear than I think we think because generational shift is a real thing. And a lot of, you know, 40 and 50 year olds right now really care about 70s and 80s game preservation. But like, who knows if that'll stay this, you know, true another 10 years from now?

• 38:43David Pierce?

  The question there is kind of who should be responsible for it, right? And this is, this is where we start to get into like some of the legal stuff. But I did have a couple of conversations with people who think that public libraries are really the correct home for this, as we were talking about at the beginning of the show, that that is a place that can not only sort of preserve this stuff for historical reasons and has good, useful like loopholes by which to do so, but also can give you access to it, right? Like we have, we have this idea of controlled digital lending, which is very much under threat because of what like the Internet Archive did with books during the pandemic. Like, it's all very complicated and we'll get into some of that in a minute, actually. But I think this idea of who is the Right steward of that is really the question.

• 39:27David Pierce?

  And this is where we get to Spotify for video games because there are a bunch of people out there who think that maybe the way to do this is to essentially bundle it all together. And I think you have to sort of set aside a bunch of realities in order for that to be possible. Like, the idea that a bunch of these companies that have been making games for 40 years are suddenly going to decide to all kind of throw in on a single service for old video games, probably super unrealistic. But who knows, maybe we would have said that about the music industry 20 years ago, and now here we are, Spotify exists. Like, I think the theory of it is a really interesting one for two reasons. One, because it gives it a real chance, I think, of being an actual business in a way that I think these sort of mini libraries and multiple different services is less compelling.

• 40:10David Pierce?

  Having this like one giant place with all the old stuff could work in a more convincing way. I talked to some people who do not agree with that, and I talked to people who do. But the other thing is I think it would just make it easier. And I think, like, it's definitely true that you can Google "video game name and ROM", and we'll talk about the legality of all this in a minute, but you can Google that and find it. But the gap between that and actually playing it somewhere is bigger and more complicated than it often is. Like, one of the first people I called for this episode was a guy named Riley Tessit, who made this emulator app called GBA for iOS a bunch of years ago. Yeah. He exploited the like enterprise certificate thing on the iPhone so that you could download games onto your iPhone and emulate them and play them there,

• 40:55David Pierce?

  doing all these really cool old video game things. And he then made a thing called Delta, which is this very professional, kind of high-touch, beautiful way of emulating old video games. It's not a way to get ROMs. It's very like cognizant of the fact that it can't have the ROMs for you, so you have to bring your own ROMs, and it just kind of turns a blind eye to where those ROMs come from. But it's in this place of like, he built a really great app and went to Apple and said, "I built this app for emulating old video games. Can I put it on your platform? Let me do it for you. It'll be awesome." And let me just play you the way he described what happened with Apple.

• 41:36Speaker 07

  After GBA Fireworks were shut down, I tinkered away at what would become Delta, like just to entertain me and also to learn Swift. It was like a fun thing. But then I was like, you know what? I should just reach out to Apple and see what I could do to get it in the App Store. I like, is there anything? And so I talked to like the app review team at WWDC and they basically told me, "Apple's problem is mostly that they don't want to allow people to install any game that they can't approve." And I believed them. Like, they were concerned that people could down, like, go around like the A-rating and stuff if they just like downloaded old games through Delta. And I heard that. I'm like, you know what? That makes sense. I understand.

• 42:12David Pierce?

  So, that's the first half of the story. The second half of the story is he figures out how to make kind of an allow list for these games. He's gonna say, "Only these ones are allowed," which again is a complicated legal thing to do, because if he's saying you can bring your Pokemon ROM and emulate it on this thing, you've sort of entered into a world of hurt. But then Apple ultimately just said, "Never mind, we don't want emulators on this device at all." So he built this weird, complicated thing where you essentially use your computer as a server to run Delta on your phone. And it does work. You have to like turn on developer mode and it's really hacky. And most people just aren't gonna do that, right? And I think we're just in a position now where if you want easy access to these old video games, the best move, at least that I've found, is to buy one of those slightly sketchy things on Amazon

• 42:55David Pierce?

  that ships with like 27,000 games on it. And some of them work and some of them kind of don't. And some of them are definitely like porny and gross. But it just doesn't feel like we have the good system for it that would even give it a real fighting chance to work. The good system for like easy emulation for the masses, basically? Yeah, like even, even leaving aside the legality of it. Like, it just doesn't feel like there is a good tool by which I can get access to this stuff. It's all out there if I'm willing to, you know, search through Reddit and GitHub and find all this stuff. And this is also kind of where we get to the emulation hardware and software side of things. Like, the thing that surprised me the most, honestly, in doing this research, is how sophisticated the emulators are for basically every console ever.

• 43:38David Pierce?

  There are amazing groups of people out there working on this stuff, mostly in an open source way, mostly just out of the goodness of their hearts. The software behind it is incredible. It's just really inaccessible to most people.

• 43:49Speaker 03

  Which makes sense, because whoever would centralize all of this stuff would need all of the permissions that we've been talking about that are next to impossible to get. So that's why we don't have the core, main person doing this. They don't want the responsibility. It's much easier to just say, okay, it's on archive or whatever. You know, you'll find it somewhere, but I don't want to be the person that's responsible for that.

• 44:13David Pierce?

  Yeah, I mean, I do think that's part of the challenge is it's like, building the Spotify for video games would be 5% really interesting product challenge and 95% just nightmare legal paperwork scenarios.

• 44:25Speaker 03

  Like, I would say literally impossible. From a legal standpoint, literally impossible to get the clearances on the entire catalog of old games.

• 44:34David Pierce?

  I think that's probably right. But even in theory, like, just play out this flight of fancy with me for a minute. If, if in theory it worked, do you think there is a real business for the Spotify of old video games?

• 44:45Speaker 03

  Not at all.

• 44:46David Pierce?

  No?

• 44:47Speaker 03

  No, it's why it should be in libraries. Well, again, I'm obviously very clear with my belief here. Who gives a shit? I mean, an adventure capital size thing, right? Like, music, people love music. You go out to a stranger and like, have you heard the Beatles? And they're like, yeah, I know a few of their songs, definitely. You go out to a stranger and you're like, hey, did you play Belmont's Quest? And they're like, can you stop talking to me? I'm trying to buy my groceries. Like, I love this. I am a huge advocate for it. I would love for it to exist. But as we already said with Microsoft and Sony, part of it sure is the legal. Part of it is the financials, again, of all of the legal. And

• 45:27Speaker 03

  then part of it is just the hosting of it. You put up thousands and thousands of games, most of which are like, bad. That's the other part of this. It doesn't mean they shouldn't be preserved. But just like early film, most of it's garbage.

• 45:41David Pierce?

  Yep.

• 45:41Speaker 03

  And then you get into like, it is a spiral of more questions, right? Like, okay, we did all of that. How do we curate it? Okay, we did all of that, but all that people are playing is Mario and Mario Kart and the original Zelda, which have always been, not always, but are relatively readily available. I'm not saying, let's not do it. You know, fight a fancy. Money is no object. I can't wait for somebody to like, lose money on this. But when I think of things that are important for history, important for culture, and are going to lose profound amounts of money, there's only one group that comes to mind. And it's the good old USA government.

• 46:24Speaker 03

  And they are going to do a great job doing what they've done, again with books, in the same way that only now are we seeing Barnes & Noble trying to figure out how the hell to make a business out of books. Yeah, I just, I don't buy that it is a business on practically any facet. Unless you did very specific targeting, which is, again, what emulation is now, which is, you can pay and get Metal Gear Solid Collection, and you can get just the game that is like very specific, and they'll charge you a ridiculous amount of money for it.

• 46:55Speaker 02

  Yeah, or you subscribe to Nintendo Switch Online, which is arguably the closest comparison, David, to what you're talking about. And obviously, that is the main selling point. Like, you get a few other perks with Nintendo Switch Online. You can get cloud saves and various other things. But what they're selling is access to this library of old Nintendo games. And it's a pretty big library. I don't have a count in front of me, but it's a lot of games. And so they do view that as at least some level of an incentive. I don't think it's a genuine, like, big tick on their balance sheet, but it's there.

• 47:30Speaker 03

  And I'll say, even with Nintendo Switch Online, it's telling that they advertise that, but then they also advertise the free DLC for their major games. They advertise the Mario Kart, you know, courses or whatever. It's, even, even they see Nintendo, you know, with the best collection, is not like, well, it's, this is enough. You know, like, we have these great old games. That surely will be enough to get people to spend it each month. Even they're like, we gotta get some new stuff on here, else we're not gonna get people.

• 47:59David Pierce?

  Yeah, I think I want desperately for it to be a thing. And I think the case for it, which Chris Kohler made to me, is that essentially, if you can get to a world in which everybody has a handful of games they want to play, right? And that handful might be totally different. But if I'm willing to pay 10 bucks a month for access to all these games, even though I'm going to play 10 of them, you're going to play a different 10, somebody else is going to play a different 10. That's kind of how you can build a sort of omnibus service that works. Everybody else I talked to said, seems super fun, incredibly niche, probably not going to be worth anyone actually investing in. So I tend to land on like, I wish it existed. I'd be very surprised if anybody actually does the work to make it exist.

• 48:35Speaker 03

  The other flag that I would say, even if it did exist, is does it fundamentally devalue video games in general? If you do that? In the same way that Netflix, trying to have as much as possible on streaming, has devalued media, in the same way that Spotify having music has pushed it so that musicians have to tour to make their money and they, like, people don't expect to make money off of the music itself. I think that's a pretty fair concern that people have had about Game Pass, is that, like, are we seeing this yet again with a devaluing of creative work? And I think that's been a big part of the unions, all the strikes in Hollywood, right? Is like, if you're going to do this sort of thing, how do you pay people?

• 49:19Speaker 03

  Because the audience isn't going to like the answer, which is, we should be charging way, way, way, way, way more stuff for, for all of this, for these services, if we want people to be paid how they were in the past. It is tricky.

• 49:34David Pierce?

  It is tricky. I really agree. Okay, let's switch gears. We're going to take one more break, and then we're going to come back and we're going to talk about the law. And I have learned more about copyright than I ever intended to for the purposes of this show. We're going to get into it, we're right back.

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• 50:24David Pierce?

  All right, we're back. We've been sort of circling this the whole episode, so let's just dig into this now. I called up a guy named John Loiderman, who works at a law firm. He's been in the gaming industry for a long time now. He's a lawyer, thinking about a lot of this stuff. And I basically asked him, like, walk me through what is going on with the legality of emulating and ROMs and where we are in this space. And it turns out it's both very simple and very complicated, kind of all at the same time. And basically, the first thing he told me was that emulators are lawful. As a general rule, if you want to emulate a thing that exists, you want to reverse engineer something and figure out how to run it in software, that is generally considered to be lawful. That's fine. So the actual act of emulation is okay. And he explained it in a way that I really liked. So let me just play this for you really fast.

• 51:09Speaker 08

  An emulator is considered to be lawful because it doesn't actually copy anything. You know, an emulator is software that is designed to mimic the function of another piece of software, which doesn't necessarily require you to copy the code or to copy any binary executable component of it. You can monitor how that system works and then you can make another system that functions the same way. And copyright law only applies to the expression of an idea and not to the idea itself.

• 51:44David Pierce?

  So I thought that's very good and straightforward and helpful, right? And what he did say is, do you guys know the story of the Dolphin emulator? And what has happened to Dolphin over the years?

• 51:53Speaker 02

  Not recently. I am familiar with it, but I don't know what the backstory is.

• 51:57David Pierce?

  So Dolphin, as I understand it, and please, everyone, email [email protected] and tell me all the reasons I'm wrong about this story. But the way I've come to understand it is Dolphin is a group of people who made a Wii U emulator. And it was very good and very successful. The Wii U is a hard console to get right and emulate, but they worked on it really hard, did a good job, and it was made available through, I think, the Steam Store. And Nintendo basically went to Valve and said, "Take this thing out. It's breaking the law." And what it turned out was happening was, again, it's not illegal to build an emulator. So the fact that it existed was OK. But what Dolphin had done is found an encryption key, which is what allowed Wii U to

• 52:38David Pierce?

  connect to the games and content. They had this key that basically was a handshake between the two things. And the copying and distribution of that key was illegal. So if Dolphin had shipped the emulator and said, "Bring your own key," like Riley did with the ROMs, right? It's like, "Where you get them from is not my problem. It's readily available on the internet, but I'm not going to tell you how to do it. But if you bring them, we're cool." That would have been OK. But instead Dolphin got basically booted out of the store, not because it was illegal, but because of the policies of Valve and Nintendo. They agreed and took it down. But it did get into this tricky legal gray area where suddenly it's not as straightforward a thing, because you are taking something that belongs to the company and distributing it. And

• 53:23David Pierce?

  one of the things that John said to me is he would bet that as gaming goes forward and as we get more consoles, they're going to find more ways to lock those things together, which is going to make them even harder to emulate, which I think is a big bummer.

• 53:37Speaker 03

  I will ease the raging nerd fire in certain listeners' hearts and minds right now. The Dolphin emulates the GameCube and the Wii.

• 53:47David Pierce?

  Did I say the Wii U? I did say the Wii U. You're right. Thank you.

• 53:50Speaker 03

  I believe there's a different emulator for the Wii U.

• 53:53David Pierce?

  Simu?

• 53:54Speaker 03

  But otherwise, I agree with you. I just love that we live in a world where I have to push my glasses up my nose. And be like, "Mmm, that was a great point, but actually..."

• 54:06David Pierce?

  Listen, this is what you're here for. Okay, so that's, that's the first piece of it. And then the other thing that he said, which I thought was really interesting, is that straightforwardly ROMs are illegal, right? Like, that, that's very simple. The act of distributing and selling ROMs is against the law, because that is just straightforward copyright infringement. You are making a copy of things you do not have a right to make a copy of. Super straightforward. Where everyone seems to agree, at least in this space, and where there seems to be real energy, is that that is bad and broken, and we need to fix it. Like, almost everybody I talked to ended up on some long rant about how the copyright system in America is broken, which listeners to The Vergecast will be very familiar with Neelai doing, so I don't need to redo that rant.

• 54:47David Pierce?

  But this idea that by default, essentially, a game has to exist for 90 years before people can have it and access it and do what they want with it, outside of just hoping and begging for one of these companies to re-release it for you, everyone I talk to seems to think that's a very bad idea. Even John, who is a lawyer, was like, "This is bad and we have to fix it," which I thought was really fascinating.

• 55:10Speaker 02

  So, let me ask you, because my understanding has always been that if you own a game, like, if you went and you bought Super Mario RPG on Super Nintendo and you have the cartridge in your home, it is not illegal to back up the data that is on that cartridge, which in turn would basically be a ROM. So, the actual doing of that, using your own personal cartridge that you bought, is legal, but distributing it to other people is not legal.

• 55:42David Pierce?

  Yes.

• 55:42Speaker 02

  So, that's my understanding of it.

• 55:44David Pierce?

  That's correct. And one of the reasons that is the case is John told me about, basically, the federal regulations that govern a lot of this stuff. Actually, let me just play you this clip. He introduced this thing, 37 CFR 201. And he was like, "If people want to know what's going on, they should read Federal Regulations 37 CFR 201." And rather than read that to you live on the show, let me just show you the way he explained it.

• 56:06Speaker 08

  There are exemptions for preservation of video games, but it's a little bit more narrow because some of those preservation exemptions only apply to libraries and museums and certain types of organizations. There are other exemptions that are specifically listed in there for, in cases where you own the software already and now you're allowed to make copies of it for different purposes. And there's some specificity in the code of federal regulations about that. There's also provisions in there about games that require some online component. And there's ways that if you own the game, that you can spoof these to play it locally.

• 56:48David Pierce?

  So this is also back to the make games better thing, I think is an interesting way of think, how do you keep a game playable way past the online infrastructure for it? It's going to be a really interesting question for the kinds of games people are playing now. But yeah, to your point, Russ, the federal regulations are what really govern a lot of this stuff. One thing that John told me is there's not a lot of case law around things like emulation and preservation. And his theory for that was essentially that the people doing the emulation and preservation are so small that they literally can't afford the court fees. So the way that it has been is you would need some big player to have the wherewithal and resources to fight against Nintendo or Sony or one of these companies picking this fight.

• 57:30David Pierce?

  But what it has been is you have occasional times where Nintendo will say, take this down, and they take it down because they can't afford the fight. But mostly, we've just ended in this place of like détente, I guess, where it's Nintendo doesn't want there to be precedent that this is a thing that is legal. So they don't really want the fight either. They want to have this ability to sort of take down things that they want, but also leave well enough alone. And like we've been saying, this is a niche enough thing, and it's for people who love games the most, that it's just a weird group of people to pick this fight with, which what John and others said is kind of the license for freedom in this space. Like you can do stuff and try things and do interesting things as long as you're not

• 58:12David Pierce?

  sort of flagrantly trying to become a billionaire selling old versions of Mario on the internet. You're going to largely get away with it because this is just not a space that these companies want to pick fights in, which I thought was a really interesting way of thinking about it. Like it is, you'll lose if it comes to that fight, but nobody really wants to have it with you.

• 58:29Speaker 02

  Yeah, and I think they know well enough that the idea of deleting something from the internet is impossible, especially something that people really, really want, like an old version of a game that they loved when they were a kid. So even though you're right, they have tried, and I think they've shut down some of the more popular, let's say, ROM sites. But largely speaking, there's nothing you can permanently do to get rid of this stuff.

• 58:51David Pierce?

  Right. And you just kind of look like an asshole. Chasing people making ROMs of old video games they want to play is a tough PR look for a lot of these companies, which I think is how some of these things continue to survive. The other thing John said that I thought was interesting is those federal regulations are updated every three years, and actually, next year is an update cycle. And so his argument was like, if you want to make changes to how libraries can access and distribute video games, or how these things are preserved, or what's allowed and what isn't, like, don't lobby Congress, it's a waste of time. Don't waste the company's time lobbying for that either. Try and get the federal regulations changed, and let's change the carve-outs, and let's increase the things that people are allowed to do with this stuff for the sake of preservation

• 59:35David Pierce?

  and backup and keeping things that you already own as yours that are accessible. That was his advice kind of over and over, was like, that's the move. If you want to make change, make that change.

• 59:44Speaker 02

  Who do I email, David? Tell me who to email.

• 59:46David Pierce?

  It's [email protected]. No, I don't know. It's actually, it's a good question, but I should figure that out. And if I find an email address, I'll put it in the show notes for this episode. But this stuff is also opaque that way, right? And this kind of goes back to like, this is almost an official industry, but it's not quite. And as a result, it's just so complicated. And this gets back to like, a lot of the emulator software and hardware that's out there, like, we should just talk about the Mistr for one minute before we get out of here. We are in this place now where a device like the Mistr is able to successfully emulate lots of different things at like, a hardware level, right? One of the things that it does is it's not just sort of making software that operates on a much faster device the way that an older device might have worked.

• 1:00:31David Pierce?

  It's actually better at, like, on the board, running it the way that it would have run a long time ago. And Mistr is such a weird and distributed thing that I literally- Wasn't able to find someone to talk to me about it for this. I emailed a bunch of like no name email addresses and nobody ever got back to me. I even tried Chris Grant, America's number one Mr. Fan, nothing. Wow. Things like that are really fascinating, but what Mr. Can't Be is like an official product that you buy at Best Buy, because that is just going to like open it up to complicated troubles that it doesn't need. But until you get there, it's just too complicated, right? It's like what you want is like the Raspberry Pi version of something like that. That is like much more accessible to regular people. And the emulation community seems to want that.

• 1:01:15David Pierce?

  And I talked to a couple of people who were like, we can get to the point where this is easier for people to get their hands on at a software and hardware level and install new things and find stuff. But it's just every step of that, you risk kind of raising the ire of one of these companies that doesn't want to fight you, but will if it has to.

• 1:01:35Speaker 02

  But I would counter that by saying, I think there is one company and people probably know this if they're in the space that has done a very good job of getting Mr.'s out in the world, and that's Analog.

• 1:01:45David Pierce?

  Oh, yeah.

• 1:01:46Speaker 02

  So Analog sells, you know, devices that, you know, they sell the Analog Pocket, which handles basically the Game Boy, Game Boy Color, a bunch of handheld systems. They have devices for old consoles, NES, Super NES, et cetera. And they have made a business out of it. It is a niche business, but they sell those things out frequently and they have constant models coming out.

• 1:02:09Speaker 03

  It's also a bit of a, for people who have not used the Analog system, you have to have the original video game cartridges to play games on it, unless you happen to find some additional firmware, software, whatever the word is that you could put on it, that would allow you access to start playing the ROMs directly through it. So I think that's true for, yeah, sure, if you have the VHS tapes on hand. But even Analog is not putting out an official emulation machine.

• 1:02:41David Pierce?

  That's true. Yeah. I do think you're right that Analog is proof that from a hardware perspective, that is the kind of thing you can do really well. Even it is like, it's very clear about the lines it can't cross. And I think until we make those lines easier to cross, which is really complicated. Again, because like for the reasons we've been talking about, the people who made these things, both under the law and just in sort of like moral reality, like deserve to be compensated for the art that they made. And the idea that everything from the, you know, whatever, 2006 and before should now just be freely available to everyone is just not how it works. But it does seem like there should be a better way of doing this. Like, one of the things that John proposed when he and I were talking was that a reform to the copyright system that he likes would be one where, let's say, 10 years after you

• 1:03:24David Pierce?

  release something, you just have to do an incredibly basic thing to keep your copyright. Like, you just have to send in a piece of paper that says, yep, I still want this. And it keeps it as yours. But what that means is for companies that go out of business, or for things that just literally nobody cares about that are going to otherwise just kind of die. And there are a lot of those out there. What it would do is, without that one tiny piece of effort, that stuff would become public domain. And he's like, that's how we get to a point where things that are no longer cared about become the property of everybody. And I think as like a common sense way of thinking about it, I like that a lot. I don't, again, that's like a giant legal minefield that I suspect will never happen. But like spiritually, that feels about right to me.

• 1:04:08Speaker 03

  I agree with that. I think that will raise a lot of questions, like what about disputes over ownership? So who sends in that sheet of paper, right? And what happens there? But I agree. I also am a version of that that I think is, I would hope, much more doable, again, with ROMs and libraries, is like, after five years or 10 years, you still have, obviously, the right to sell your game, but libraries have access to make the game available in however many copies you want for free at their discretion. And then it's like, yes, you still own your trademark, your copyright, whatever. Like, you still own the game, but in terms of public good, we can open this up.

• 1:04:53Speaker 03

  I also, I'm a firm believer that that should be true for not just games. I think the- The laws in our country in terms of preserving art as capital are deranged. But but like, that's a whole separate podcast, I'm sure we'll do one day.

• 1:05:09David Pierce?

  Yeah, I agree with all that. And I will say, there was real both enthusiasm and optimism among the people I talked to that we can get to the point where libraries can be that thing. That we're still we're still figuring out so much about digital lending and how that interacts with copyright. And I mean, we're talking about this with eBooks now, right? Like, is it the same thing, you have to buy a copy of an eBook for everyone you want to lend out, or can the library buy the book once and then lend multiple copies? Like, we just don't have answers to this stuff, but I think we're going to get them one way or another. And there's a chance it's really ugly and essentially kind of kneecaps everything libraries want to do everywhere, because there are some publishers out there who would like that and are very powerful. But there's also a version of it that says, like, even digital goods can be accessible to people as a public good through libraries.

• 1:05:54David Pierce?

  And almost everybody I talked to was like, that's an outcome we can absolutely all get behind, which I thought was very encouraging. What do we do about the fact that it's not going to be a business? This is the question I want to leave with is like, do we have to just think about this as artistic preservation and a thing we do because it's important and worthwhile? Or do we need to find a way to like, inject capitalism back into old games? Like, as we think about this issue over the next 10 years, do we think about this as a public good or like, a line of business?

• 1:06:23Speaker 03

  Absolutely a public good. And that doesn't mean that like, the really big things can't still be a viable business that keep people aware. For example, I, oh, humble brag here and a shout out. I'm on the board of my local indie movie theater here in Orange County.

• 1:06:39David Pierce?

  Of course you are.

• 1:06:40Speaker 03

  In Santana, called the Frida. People should go to it and see great movies, like Dog Day Afternoon was just there, right? And really great old movies like that, and some small ones that could get lost, screened there. And that is great. And that is a great service. And it is a nonprofit. Even to show very famous movies like Alien, you still are probably going to need to be a nonprofit status just to justify your business. But even we are not going to be showing the loss. Movies of like 1928, right? And as time goes on, as this becomes a more mature medium, that's going to be more and more true for video games. And I think, yes, we can use the machine of capitalism

• 1:07:24Speaker 03

  to maintain interest in older games, but it's going to need to be the big ones, just like it is with any other form. You know, how many novels from 1944 do people read on a regular basis, right? Like, you have to find other ways of preserving them. So I think it's a bit of everything. You're going to have the market keeping us aware of the really important stuff. You should ideally have libraries or nonprofits that are able to preserve the stuff that people wouldn't care about. You can do total remakes, like Resident Evil 4 remake, that are kind of doing, I think, something that you got. Which is, even if you do preserve this, sometimes the games just aren't that fun anymore. And you need to kind of like upgrade it.

• 1:08:07Speaker 03

  Demon's Souls on the PS5, I think, is another example. I think it's a multi-pronged approach. And I do think you're right that the fact that I can give all those examples is encouraging. The one that I can't give is what do we do about all the 99% of games that are not the big stuff? And right now, the answer is pretty much exclusively piracy and ROMs. And that's just neither... It's not good for anybody. It's not good for the companies. It's not good for preservation, to not have better options. It's not good for availability. It has people having to look at some really nasty ads on their browsers. Yeah, I think it's time for change in that department.

• 1:08:46David Pierce?

  I agree. Russ, any thoughts before we go?

• 1:08:48Speaker 02

  No, that is a good summary. I do love old games and I love very esoteric old games as well. Stinger is a side-scrolling shooter where you fight a giant floating watermelon. And if I can't play Stinger every other year when I have the urge, that is a real crime. So I think we need to make this a huge priority across the country and across the world, really.

• 1:09:11David Pierce?

  Do it for Stinger is a slogan I can get behind. I like this.

• 1:09:15Speaker 02

  Amen.

• 1:09:15David Pierce?

  All right. Thank you, guys, as always. We're going to be back for one more of these next week, but this is really fun. Appreciate you guys dealing with this with me, as always.

• 1:09:28David Pierce?

  All right. It's been a lot today. That is it for the show. Thanks to Chris and Russ for being here. Thanks to everyone who talks to me for this show and thank you as always for listening. As always, if you have thoughts, questions, feelings, games you'd like to emulate, or just more things to say about the fact that I called the Dolphin a Wii U thing, you can always email us at [email protected] or call the hotline 866-VERGE11. Love hearing from you. Send us all your questions and thoughts. This show is produced by Andrew Moreno and Liam James. Vergecast is a Verge production and part of the Fox Media Podcast Network. We'll be back on Wednesday to talk about Spotify, Netflix, and the hotline, and we'll be back on Friday to talk about all the news of the week because the news just keeps coming, my friends. We'll see you then. Rock and roll.

• 1:10:20Speaker 09

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