"The files located at the repository link contain unauthorized copies of Nintendo’s video game software in violation of the law and GitHub’s Terms of Service," Nintendo wrote in its takedown request.
GitHub complied with the cease and desist, so the repository is on lockdown barring a counter-notice from the repository owner. Nintendo indicated in its letter that it still might pursue legal action against the offender.
“We are considering action regarding those matters but are not including them in this notice,” the company said.
If the company is serious about shutting down every emulator of its hardware, its legal team may find itself writing a lot of demand letters. Nintendo emulators are relatively common across the internet, and several others still remain even on GitHub.
Hardware emulation is one of those murky legal gray areas that is easy to see both sides of the story. On the one hand, you have the copyright owner who certainly has a valid claim under the law. Then on the other hand, in some (if not most) instances the hardware being emulated has been out of production for years, so emulation is the only way to access such software.
The Game Boy Advance, for example, was discontinued in 2010. Unless you happen to have an old one lying around, you’re not going to get a chance to play Advance Wars without using an emulator.
Usually in situations where the hardware has been discontinued for a time, and the software titles are no longer generating revenue for the copyright holder, emulators are left alone. However, if the owner gets word that money is being made from its IP, it will go after the offender. That is what got LoveROMS and LoveRETRO in trouble — the owner of the websites was monetizing the emulators.
In the case of the GitHub repository in question, TorrentFreak says there is no indication that the owner of the emulator was profiting in any way. Of course, who knows with Nintendo. It might be getting ready to release a Game Boy Advance Classic Edition and doesn’t want any emulators stealing its thunder.
What do you think? Should Nintendo allow sites to host emulators of its old discontinued hardware as long as the site is not profiting from it? Or should it put the screws to anyone daring to offer old defunct titles to fans or those who may have never had a chance to play them?