reflections on a scene fall 2022

Piracy: A Speculative Future for Video Game Preservation

Intro to Design Studies Spring 2025 Research Paper

May 4th, 2025

Introduction

Within the past decade, the shift of video game releases from physical to digital formats has led to more conversations about the future, and present state, of game preservation. While conversations around preservation of physical formats of games have focused primarily on the inevitable deterioration of cartridges and discs, the biggest issue facing digital-only preservation is ownership.

When a physical game is purchased, the buyer has access to it for as long as they keep it in their possession. They are free to play it, sell it, destroy it, or whatever else they wish to do with it. While the actual data of the game is protected under copyright, the physical game is the property of the person who purchased it. Contrary to this, digital game purchases are purely made up of game data, so the act of “buying a digital game” is really just purchasing a license to access the data under a set of terms.

The EULA, or End User License Agreement, has existed long before digital downloads of games were the status quo. On physical games, they existed via “shrinkwrap”, printed on the outside of packaging wrapped in plastic film, or printed on a sheet enclosed in the package.¹ The EULA’s of modern digital games are usually much more straightforward. Before purchase, download, or for online games, connection to the server, a user is prompted to scroll through a popup containing the agreement, and checks an ‘Agree’ button at the bottom. In many games, the terms mention that “the rights owner owner [is allowed] ‘at its sole discretion’ to cancel a player’s registration and to cancel ownership of Points, Virtual Items, or Bonds, or change the terms and conditions attached to items that have been purchased, despite the fact that players will have paid real world currency for those items.” ²

This clause, often overlooked by consumers who are quick to hit the checkmark next to ‘I Agree’ and move on, sums up the primary roadblock for digital preservation. Even after purchase, access to the game is always contingent on the designer or the company. When digital games become unavailable to access, there is no action that the player can take. Games can become unavailable for many unpredictable reasons, such as changes in terms or conditions, companies going out of business, or licensing issues.³ However, especially in cases where there is no explanation given for the disappearance of a seemingly functional game, one can speculate if some games are being removed simply to focus consumer attention on newer releases.

‘Planned obsolescence’ is not a new phenomenon. Traditionally used to talk about physical objects such as durables, it is the purposeful shortening of a product's life for the purpose of profit. The planned obsolescence method of ‘programmed obsolescence’ is defined as “the engineered, premature breakdown of a product to trigger its replacement by its own maker.” ⁴ Programmed obsolescence has been used via code to prematurely end the life of technological objects. “Since software are ‘works’ within the meaning of copyright laws, any attempt to tamper with or to modify the code in-board any smart object in order to upgrade or render compatible and serviceable said object could constitute an Infringement”. Allowing “intellectual property [to give] an additional tool to control the life and use of the object”.⁵ For digital games, programmed obsolescence could happen through the shutdown of servers that are needed to load game content, or through the delisting of games from digital distribution services entirely.

A short lifespan combined with lack of ownership has made archival work for digital games increasingly difficult. Many games have become legally inaccessible, and only manage to live on through pirated or user modified versions. As a result of this, piracy, the illegal reproduction of copyright protected work⁶, has inadvertently played an important role in the historical preservation of many video games. In this paper I will argue that the usage of piracy in a variety of community projects that have successfully preserved inaccessible games sets a possible framework for future legitimate collaborative systems of digital preservation.

The Console and The Emulator

To understand piracy as something that has historically had ties to preservation, I want to first examine a method that has been used by both pirates and game companies to preserve physical games made for retro consoles. As older consoles become obsolete and materials decay, older video games (some only a few decades old) are at risk of disappearing. Emulators provide a solution for games made for outdated and defunct consoles. An emulator is a piece of software that emulates the playing experience of a game made for one console (e.g. a Nintendo GameCube) to another (e.g a PC), mimicking the original console's inputs and outputs.⁷ They are used in conjunction with Read Only Memory (ROM) files—digital copies of data from physical format video games.

In the case of pirates, a ROM is ripped from a game and then copies of it are made and distributed. Pirate groups online have created collections of downloadable ROMs and emulators for old games and consoles. Vimm’s Lair is the oldest, hosting a library of content on its website since 1997. On June 6th 2024, they announced the takedown of a large portion of their content: “Vimm's Lair has been asked to remove many games from The Vault on behalf of Nintendo, Sega, Lego, and the ESA. While most of these games (and the hardware to play them) haven't been sold in decades, ultimately it's their prerogative so these games are now gone for good.” ⁸ This takedown begs a good question. Why are games that are providing no profit prevented from being copied and preserved by fans?

The answer to this question: for the purpose of re-releases. The technique of emulation is also being used by game developers, to sell re-releases of classic games on newer consoles. For example, the Nintendo Virtual Console created for the Wii console. It allows Wii users to play “perfect recreations of classic video games…including favourites from the NES, Super Nintendo, Nintendo 64, Turbografx (PC Engine), SEGA MEGA DRIVE, SEGA MASTER SYSTEM, Commodore 64, NEOGEO and arcades.” ⁹ But these re-releases are subject to programmed obsolescence too. The Virtual Console service was shut down for the Wii in 2019 and WiiU and 3DS in 2023. It was replaced with emulators available on the Nintendo Switch with a yearly Nintendo Switch Online subscription.¹⁰

The choice to shut down older console services and then come out with a new service, especially one with the temporary nature of a subscription model, shows that Nintendo’s main priority is not preserving the games but rather making money off fans' desire to play old games. Nintendo is preventing others from attempting to archive any of their games in case they choose to emulate and re-release them in the future. Even for completely inaccessible games, emulation through pirated ROM files remains illegal. “While emulation might seem like the saviour of games in the long-term, it is videogames hardware and software manufacturers and publishers that have been at the vanguard of those calling for legal measures against emulation and ROM acquisition and distribution.”¹¹

The pushback by game companies makes legitimate archives and libraries struggle to find ways to legally access ROM’s of classic games. Because of the lack of collections by legitimate archives, pirated collections remain the most complete sets of information at peoples disposal. The variety of ROM’s from multiple purchased copies of games also provides important contextual information. “These databases and the knowledges they contain constitute an invaluable source that distinguishes and documents the variations between versions of games. Most importantly, the data and metadata that document the specifics of the ROM version in question not only contribute to the much-needed database of instances of games, but also communicate much about the compatibility of specific versions of hardware and software, and the variation in game design and gameplay opportunity.”¹²

Hacked Consoles - The Case of The 3DS eShop Closure

Moving from physical games to the present issue facing digital games, let’s examine piracy methods that preserve handheld console games that were accessible via digital storefronts, in their original console format. This requires moving from emulating the console onto a computer, to altering the firmware on the console itself.

In March 2023, the Nintendo eShop, a distribution service for purchasing games and software on Nintendo consoles, was shut down for the 3DS and WiiU consoles. Instantly, around 600 digital releases for the 3DS and around 450 digital releases for the WiiU could no longer be accessed, as well as “nearly 530 Virtual Console games, around 335 of which are not currently available on Nintendo Switch Online." ¹³ Unlike the smaller selection of games that were released both digitally and physically and could still be found on secondhand markets, these games are no longer available to anyone who has not already purchased the game, as there is no way to share digital games between consoles within Nintendo’s firmware.

Hacked or “modded” consoles using custom firmware were relatively popular in the console gaming community before the eShop shutdown, but they are now essential for accessing this missing content. Custom firmware (CFW) “is a full software modification to your [console], comparable to ‘administrator access’ on a computer. It allows you to do anything that the [console] is physically capable of doing, rather than being limited by whatever Nintendo allows you to do.” ¹⁴ Through modded consoles, pirates can create and download apps that ‘replace’ Nintendo’s shut down services.

The hShop is one such service created for the 3DS console, providing full access to their pirated collection of the entire eShop library. They have accumulated this collection from CIA files created from existing purchased downloads on 3DS consoles. CIA, standing for CTR Importable Archive, is a digital file format that allows the installation of titles to the 3DS. On their website, hShop defines itself as a “3DS content preservation service” stating that “a decent chunk of the official content we provide is no longer available for purchase anywhere. We want to provide most if not all content that is (or was) available for the 3DS. This is why we are also a preservation service, and not just one of those sites that provide CIAs.” ¹⁵ Their dedication to preservation is seen through their interactions with the 3DS piracy community, even releasing an app to make it easier to download content at fans' request. 3hs is the free and open source app they built from the ground up, with user-friendly menus, allowing users to directly download hShop content in a way similar to Nintendo’s eShop. The app can be downloaded on any 3ds console that has been modded with CFW.¹⁶

After the closure of the eShop, the hShop has become one of the only options for access to digitally downloadable 3DS content. Similar to emulation of unavailable physical games, pirated eShop games, as well as CFW (classified as a “Circumvention Product”) are disapproved of by Nintendo, and violate their Terms of Service.¹⁷ However, the hShop, while illegal, has become the closest thing to an archive for the preservation of this missing content.

Private Servers

Some digital games, including many 3DS games, require online servers to load content, or for multiplayer capabilities. Nintendo, continuing where they left off from the eShop closure, discontinued their online services for the 3DS and WiiU consoles in April of 2024. This ended service for all 3DS software, with the exception of Pokémon Bank and Poké Transporter. Essentially, this made almost all the games that rely on online access unplayable, regardless of if a player owned them or not.

Pretendo, a project that began long before the shutdown, with code repositories dating back to 2018¹⁸, soon emerged as the alternative, working on replacing the services for every 3DS game requiring online access. They are a non-profit project with open source code that is using clean room reverse engineering of the original Nintendo servers to build their own.¹⁹ Pretendo, unlike many other projects not sanctioned by Nintendo, is fully transparent about their progress, team members, and has dedicated forums online. While their clean room reverse engineering methods are not necessarily illegal, it is, as mentioned earlier, against Nintendo’s terms of service to use “Circumvention Products”, such as CFW, and Pretendo requires CFW to run. For this reason, Pretendo falls into the scope of “piracy projects” examined in this paper.

Fan servers are also being used to restore online support to previously shut down Massive Multiplayer Online games played through online browsers. Toontown Rewritten and Club Penguin were two such browser games created by Disney, shutting down in 2013 and 2017 respectively²⁰. Both games were widely loved before their shutdown, and as a result dedicated fan servers have emerged for both games, with the goal of preserving access. While many popular servers replicate the gameplay of Club Penguin, including one that ended up under investigation by London police²¹, the servers for Toontown are particularly interesting as each takes a different method to preservation.

Toontown Rewritten, the most popular, aims to continue the original playing experience, while adding updates that improve look and gameplay.²² Toontown Corporate Clash is a new experience inspired by the original game, with new content such as characters, gameplay, and worlds.²³ Toontown Archive has the goal of making every iteration and update of the original Toontown made throughout the years accessible, from its beta version to its final pre-shutdown state.²⁴ While all the revival servers have differing goals with their preservation, they are all non-profit projects not sanctioned by Disney, working to keep the game accessible more than a decade after it was shut down.

City of Heroes Homecoming is a fan server made for another shut down browser MMO—City of Heroes. The original game was shut down in 2012, and the private server for it was initially secret, created using code given to a player by one of the developers. In 2019, the server was discovered, and several fan servers emerged from the leaked code. Homecoming became the largest of those servers, providing consistent updates funded by the players.²⁵ What makes this server different from fan servers like the ones for Club Penguin and Toontown is that the creators were actively trying to negotiate with the games owner, NCSOFT, for legal permission. In 2024 it was announced that they had succeeded in getting a license. The unsanctioned work done for nearly half a decade to preserve this game, has now turned into a legal project unlikely to be taken down in the foreseeable future.

Are Community Archives the Key to Digital Game Archiving?

Preservation, at its core, is a community effort. Everyone has access to different data, and altogether, they make an archive. The piracy project examples can all be reframed as ‘rogue digital archives’— identified by researcher Abigail De Kosnik as digital archives not associated with physical museums, libraries, or archives, run by “rogue memory workers” such as amateurs, fans, hackers, pirates, and volunteers.²⁶ Rogue archives are taking preservation into their own hands.

There have been other attempts at preservation, some made by video game publishers and distribution platforms. The PC game distributor Good Old Games (GOG) has started a preservation program to maintain classic games for constantly improving modern computer systems, after their developers have stopped updating them.²⁷ However, GOG is, ultimately, a corporation, with commercial interests as heart. Without profit, they cannot sustain themselves and upkeep such programs. Frank Cicaldi, founder and director of the Video Game History Foundation, a non-profit organization dedicated to preserving video game history²⁸, talked about their efforts in an interview: “GOG has a commercial interest, of course, but it’s coming from a place of caring. That said, this is the job of an archive. I would never trust a commercial entity for permanent preservation – or at least an attempt at permanent preservation. I’m really glad they’re doing it. It is a temporary solution for a real problem. I don’t believe that G.O.G. lasts forever, whereas I think a well-funded archive might. And I’m not even necessarily saying ours; we’re not that well-funded yet”.²⁹

The archive in question, VHGF, has been working on their own attempt at preservation— a Digital Millennium Copyright Act petition to allow remote online access to out-of-print video games for restricted purposes of private study, scholarship, teaching, or research. To ensure fair-use, they suggest that “vetting could include institutional verification by way of a requirement that users fill out a research request detailing the scope of their project, a process already widely used by museums with video game collections.” as well as placing games “within catalogued archives with other special collections resources, requiring a user to know what they are looking for and, more importantly, to request access after finding it. The attention-to-detail and academic literacy necessary to see this process through to the end will go a long way toward filtering out nefarious users.”³⁰

Archiving in this way can be problematic however, limiting access from people who may be unknowledgable of the workings of archive catalogues or wanting casual research access for the sake of preventing “nefarious users”. It’s also uncertain whether this system would ensure preservation of as much content as possible, or only selective games deemed to be important for institutional research. While it would ensure the preservation of emulated games for the foreseeable future, an archive like this does not provide true accessibility.

Rogue archives, however, work against “selective tradition”, striving “to save and keep as much of the documentary culture as they can acquire and digitize”³¹. Video games have a broad cultural range and history, and this style of preservation can best tell their complete story, and preserve less popular games that still (when accessible) had some form of community and a player base, and arguably a role in culture. As none of the piracy projects examined in this paper are for-profit, the motivation of its participants is preservation and enjoyment of the game, even when they can no longer legally obtain it.

Conclusion

The story of the City of Heroes Homecoming server sets an example for the ideal future of these rogue archives. In essence, the ‘work’ of all of these projects is simply modifying the original code to restore access. They are considered piracy because the code is copied without the permission of the developer or company. The establishment of a collaborative system between game developers and pirates and volunteers would allow rogue archival efforts like the successful examples covered in this paper to continue without the need for piracy, and give fans who are not currently participating out of fear of legal trouble the incentive to contribute.

Licenses, the source of the digital preservation problem, can also become the solution. When a game developer can no longer continue upkeeping a game, it should be passed on with a license and legal backing to fans who are willing to preserve its access. Similar to how preservation of artwork and objects involves touch ups and upkeep, to remain accessible, games need to be updated as technology evolves. For effective and accessible preservation, design must become a community practice. With collaboration between the designer and the enthusiast, games can survive longer, and game design history can become accessible and tell a more complete story.

Endnotes

¹ Susan Corbett, “Computer game licenses: The EULA and its discontents”, Computer Law & Security Review 35, no. 4 (2019): 453-461. https://doi.org/10.1016/j.clsr.2019.03.007, 455.

² Corbett, “Computer game licenses”, 461.

³ Dominic Bayley, “Why Your Digital Games Could Vanish in a Heartbeat,” PCWorld, September 26, 2024. https://www.pcworld.com/article/2465274/why-your-digital-games-could-vanish-in-a-heartbeat.html.

⁴ Pierre-Emmanuel Moyse, “The Uneasy Case of Programmed Obsolescence,” University of New Brunswick Law Journal 71 (2020): 61–111, https://doi.org/https://dx.doi.org/10.2139/ssrn.3804451, 62.

⁵ Moyse, “Programmed Obsolescence”, 95-96.

⁶ William L Hosch, “Piracy: Copyright Crime,” in Encyclopedia Britannica, August 5, 2009, https://www.britannica.com/topic/piracy-copyright-crime.

⁷ James Newman, “Illegal Deposit: Game Preservation and/as Software Piracy,” Convergence: The International Journal of Research into New Media Technologies 19, no. 1 (September 20, 2012): 45–61, https://doi.org/10.1177/1354856512456790, 48.

⁸ “Vimm’s Lair: Preserving the Classics” Vimm’s Lair, accessed May 4, 2025, https://vimm.net/history.

⁹ About: Virtual Console: Wii: Nintendo UK,” Nintendo of Europe SE, accessed May 4, 2025, https://www.nintendo.com/en-gb/Wii/Virtual-Console/About/About-Virtual-Console-Wii-Nintendo-UK-626440.html.

¹⁰ “Play Classic Games with Nintendo Switch Online,” Nintendo Official Site, accessed May 4, 2025, https://www.nintendo.com/us/online/nintendo-switch-online/classic-games/.

¹¹ Newman, “Illegal Deposit, 50.

¹² Newman, “Illegal Deposit”, 57.

¹³ Chris Scullion, “These Are the 1,000 Digital-Only 3DS and Wii U Games Disappearing Next Week,” VGC, March 22, 2023, https://www.videogameschronicle.com/features/analysis-digital-only-wii-u-3ds-games/.

¹⁴ “3DS Hacks Guide,” 3DS Hacks, accessed May 4, 2025, https://3ds.hacks.guide/.

¹⁵ hShop, accessed May 4, 2025, https://hshop.erista.me/.

¹⁶ hShop.

¹⁷ “Circumvention Products,” Nintendo of Europe SE, accessed May 4, 2025, https://www.nintendo.com/en-gb/Legal-information/Nintendo-s-Intellectual-Property-Enforcement-Program/Hardware-Piracy/Circumvention-Products/Circumvention-Products-732247.html.

¹⁸ “Pretendo Network,” GitHub, accessed May 4, 2025, https://github.com/PretendoNetwork.

¹⁹ Pretendo Network, accessed May 4, 2025, https://pretendo.network/.

²⁰ Daphne Ford, “Toontown Online Continues Living in the Modern Era of the Internet,” Trill Mag, June 27, 2024, https://www.trillmag.com/entertainment/toontown-online-continues-living-in-the-modern-era-of-the-internet/.

²¹ Joe Tidy, “Three Arrests over Unofficial Club Penguin Site,” BBC News, April 14, 2022, https://www.bbc.com/news/technology-61107939.

²² “Welcome to Toontown!,” Toontown Rewritten, accessed May 4, 2025, https://www.toontownrewritten.com/.

²³ “Toontown: Corporate Clash,” Corporate Clash, accessed May 4, 2025, https://corporateclash.net/.

²⁴ “Home: Toontown Archive,” Toontown Archive, accessed May 4, 2025, https://toontownarchive.com/.

²⁵ Bree Royce, “NCsoft Has Officially Granted a City of Heroes Server License to the Homecoming Crew,” Massively Overpowered, January 5, 2024, https://massivelyop.com/2024/01/04/ncsoft-has-officially-granted-a-city-of-heroes-server-license-to-the-homecoming-crew/.

²⁶ Abigail De Kosnik, Rogue Archives: Digital Cultural Memory (Cambridge, Massachusetts : MIT Press, 2016), 2.

²⁷ “Gog Preservation Program,” GOG Preservation Program | GOG.COM, accessed May 4, 2025, https://www.gog.com/en/gog-preservation-program.

²⁸ “Mission,” Video Game History Foundation, October 6, 2020, https://gamehistory.org/our-mission/.

²⁹ Nathan Grayson, “Preserving Video Game History Is an Uphill Battle,” Aftermath, December 6, 2024, https://aftermath.site/aftermath-hours-podcast-video-game-history-foundation.

³⁰ Brandon Butler, “SPN and Library Copyright Alliance Petition for Updated DMCA Rules to Expand Access to Preserved Software,” Software Preservation Network (SPN), January 10, 2024, https://www.softwarepreservationnetwork.org/spn-and-library-copyright-alliance-petition-for-updated-dmca-rules-to-expand-access-to-preserved-software/.

³¹ De Kosnik, “Rogue Archives”, 79.

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