What Is Stealing In the Digital Era?
Thoughts on Piracy and Bootlegs
Recently, I caught a bit of an online Metroid speedrun marathon and one of the games they played was AM2R. For those unfamiliar, AM2R (which stands for "Another Metroid 2 Remake"), was a fan game remake of the Game Boy title Metroid II: Return of Samus. The remake was released in August, 2016, to much approval from the fandom. It was a very enhanced remake, adding in a lot of features from the later games in the series while also updating the graphics and sound to make it a more contemporary game. In every way it was an improvement over the original and helped to make that game stand with the best of the series.
It was also almost immediately hit with a DMCA from Nintendo and the project shut down after the first full release. Fans were, of course, upset because this was a great game and Nintendo killed it. Not that Nintendo didn't have a right -- Metroid is their intellectual property and they are well within their rights to shut down any fan-game project they want. They've done the same thing before for various unofficial Pokemon, Mario, and Metroid sequels in the past, and much of the discussion around the game as it was being developed (and discussed online) was how soon would it be before Nintendo killed it. No one should have been surprised that AM2R was killed.
The thing is, though, that many other companies are totally supportive of unofficial fan games, loving the fact that their fans dig the original titles so much they want to add in their own. Sega, for example, not only embraces the Sonic fan game community but hired programmers from one of the most successful projects to then make an official game in the series, the recently released Sonic Mania (considered by many to be the best game in the series in a loooooong time).
Of course, other companies take a similar stance to Nintendo. Konami, despite the fact that they've barely done anything with the Castlevania IP in years (aside from some pachinko games and the occasional mobile venture no one really pays attention to) still regularly goes around shutting down fan games. Most fans have, thus, taken to making Castlevania games in all but name. These games seem to have taken inspiration from Bloodstained, a big-budget game that showed you could make Castlevania, just not call it "Castlevania", and make as loving a tribute as you could free-and-clear.
But that doesn't really answer the big question about who is right or wrong in this situation. Certainly, the people behind AM2R weren't trying to steal Nintendo's thunder. They didn't want money for what they were doing, they just wanted to put a great Metroid game out there that fans could play. Eventually Nintendo would release their own remake, Metroid: Samus Returns, which mollified the fans somewhat, but were they right to shut down the fan project? Being within their rights isn't the same thing as being right. Fan games are acts of tribute, love letters to the games, and when they're done for free someone really needs to ask "where's the harm?"
Was there a way for AM2R to make their game legally? Well, certainly if they'd made the "game" as a rom-patch to one of the existing games in the franchise it would have been more of a grey area. Rom patches, essentially, are programmed to go on top of a rom, altering the game without changing the base code. Roms, themselves, are legal although you have to rip them yourself so a rom-patch is legal so long as the programmer forces the players to find their own rom to apply the patch to. The onus is then on the players and it's harder to see how Nintendo could shut it down. They still might try (they have in the past for some Pokemon patch projects), but this version of AM2R might have survived longer.
Of course, this then raises a bigger question of just how far should fans be willing to push their luck? As an example, I own a copy of Seiken Densetsu 3 on a reproduction cartridge. It's an English-patched version of the game since the original was a Japan exclusive. Technically, the manufacture of that cartridge should be illegal as it's a pirated game then repackaged and resold in the States. Except, of course, since SD3 never came out in the States the game is effectively abandonware.
Square certainly had a few opportunities to bring the game out here even after the SNES (its home system) was killed off. They released a number of Final Fantasy compilations for the PSX, one of which had Chrono Trigger packed in it, and that game has nothing to do with Final Fantasy. A package with Final Fantasy III (another game never released in the U.S. at that point) and SD3 seemed like a no brainer (and rumors were it was in development), but that never happened. More recently Japan got the Seiken Densetsu collection, which had the first three games packed into it. And yet that, too, has never come to the States. Legally, there's no way to play SD3 if you don't live in Japan.
Now, if Square, or Nintendo, or Sega wanted to shut down these repro sites they could try. A legal argument could be made, of course. But at the same time, these sites, and the games they produce, are in a legal grey area since most of the games they're publishing are abandoned, or rom-hacks developed by fans. Where is the legal line there? Who is right in this instance.
I'm not going to even try to answer that question as for each person there is probably a different answer. Personally, I hate pirating at all. I dislike the fact that I have to own a repro-cartridge to play SD3 and I'd much rather buy an official release if Square would ever do it. But I see the benefit of a robust rom community (if for no other reason than to preserve old games when their cartridges no longer work). I also see the benefit of a robust fan-game community (to feed a desire than the game companies may be ignoring). I just wish the grey areas weren't so grey in this field.