In the last few weeks, a renewed bout of legal action from Nintendo has led to the shutdown of a handful of ROM sites, which previously let users download digital, emulation-ready copies of classic games. This has, in turn, led to a lot of good discussion about the positive and negative effects this kind of ROM collection and distribution has brought to the gaming community.
From a legal standpoint, it’s hard to defend sites that revolve around unlimited downloads of copyrighted games. As attorney Michael Lee put it in a recent blog post, “this is classic infringement; there is no defense to this, at all.” But as Video Game History Foundation founder Frank Cifaldi tweeted, “there is no alternative BUT piracy for, like, 99 percent of video game history” due to “the completely abysmal job the video game industry has done keeping its games available.”
But what if there might be a middle ground that could thread the needle between the legality of original cartridges and the convenience of emulated ROMs? What if an online lending library, temporarily loaning out copies of ROMs tied to individual original cartridges, could satisfy the letter of the law and the interests of game preservation at the same time?
What if such a library already exists? In fact, it has for 17 years.
Meet Console Classix
Since 2001, Console Classix has marketed itself as “the only emulation service that is 100 percent legal!” The site, and its associated Windows app, offers nearly instant access to thousands of emulated games from the Atari 2600 and ColecoVision era up through the Nintendo 64 and Game Boy Advance. A free subscription tier lets users play games from the NES and earlier hardware, while complete access costs just $6 a month or $60 a year.
When it comes to providing simple, convenient access to a wide selection of classic games quickly and cheaply, Console Classix seems like a Spotify-style holy grail. What’s more, site founder Aaron Ethridge says he’s confident he’s safe from the kinds of legal threats that have brought down ROM sites in the past.
“We talked to a lawyer before we even filed the paperwork to found the business,” Ethridge told Ars in a recent interview. “After that, we contacted a law firm that specialized in copyright law to help us keep the hounds at bay.”
Part of what makes Console Classix different is that each of the site’s available ROMs was ripped directly from one of over 7,000 actual cartridge in the company’s possession—you can see thousands of those cartridges in this video from 2011. Just as importantly, Console Classix merely gives subscribers temporary access to those ROMs rather than the unlimited, permanent downloads common on ROM sites.
This is the conceit that Ethridge says makes it all legal, as summed up in an archived notice from 2007: “Once a user has selected a game, our server locks that image so that no one else can use it. This ensures that we are never using more copies of a game than we own; that would be copyright infringement… We allow you to access our ROMs, but we don’t distribute them.”
In other words, if there are four Console Classix users currently playing the site’s four copies of Fester’s Quest for the NES, other users have to wait until one of those players is done to loan it out themselves. In essence, Ethridge and Console Classix have simply digitized the process of serially loaning out a physical game cartridge to anyone who wants to use it, one person at a time.
“There is no ideological difference between our service and that of any common video rental store,” the Console Classix site says. “We have simply taken a classic idea and brought it to the Web.”
Cease and desist? We’d rather not
Some in the industry have been quick to disagree with that sentiment over the years. In June 2001, just two weeks after Console Classix launched, the site received a letter from Nintendo of America insisting that “all Nintendo ROMs published on the Internet are necessarily unauthorized and illegal.” The ROMs Console Classix had ripped may not be used “for the purpose of acquiring financial gain,” Nintendo argued, meaning the site “may be subject to criminal prosecution and civil liability.”
In his response to Nintendo, Ethridge argued back point blank that “We are acting in full accordance with the law. We understand your determination to prevent software piracy. This was the very reason for our founding. We wish to provide a legal alternative for the retro-gaming community.”
The client-server architecture of the Console Classix software, Etheridge argued, is legally distinct from “publishing” ROM images on the Internet. “When a client requests a game image, the server places this image into the client random access memory (RAM),” he wrote. Since the client’s RAM copy of the game is destroyed as soon as the client-server connection is broken, no illegal permanent “distribution” of a ROM copy has occurred, Ethridge wrote.
“This application also ensures that no more copies of a software package are in use than are in our possession,” he wrote. “We are also granted the right to lease copies of a software in our possession, provided we also ensure the customers’ rights to the original software.”
In a 2006 interview with Vintage Computing and Gaming, Ethridge noted that Nintendo had failed to follow up on its letter in any way. “After sending this reply, we heard nothing from them for about a week, so I called NOA,” he said. “I was told that someone would contact me shortly… Since then we have had no other contact with Nintendo.”
A Nintendo representative did not respond to a request for comment on this matter from Ars Technica.
Security through obscurity?
While Ethridge told Ars that “other people have threatened to sue us” over the years, he says Console Classix has never actually been taken to court. Part of that is likely due to the site’s relatively low profile. After peaking at a few thousand paid subscriptions and five employees in the early ’00s, Ethridge says Console Classix now only has “hundreds” of paid users and the site only loans out 10 to 20 simultaneous ROMs across its catalog at peak times.
Back in 2014, Ethridge told Polygon that Console Classix had been “the sole source of income for his family of eight for over a decade.” Today, though, Ethridge says he runs the site as a part-time solo side business while working as a network engineer and author by day.
That threadbare maintenance is starting to show, too. The Console Classix app uses multiple open-source emulators without much interface consistency between them, and this library-of-sorts has a bare bones frontend that looks very much like it was created by hobbyists nearly two decades ago. The Console Classix website, while functional, still sports a 2016 copyright notice, and associated Twitter, Facebook, and YouTube pages haven’t been updated in years.
Ethridge says he hopes to do a “major overhaul” of Console Classix and start adding more cartridges to its library in the next year. But he adds that “in order to do things like they should be done, I would say at least one full-time employee would be necessary.”
Still, the relative obscurity these past 17 years has been beneficial for Ethridge in one sense. “If Console Classix ever hit it super big, we would be sued,” Ethridge told Ars. “We would win, but we would be sued.”
In any case, he thinks the industry has bigger fish to fry. “There are countless pirate sites out there where you can just steal these games. Us offering them legally is a novelty.”
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