Should PlayStation/Nintendo Preserve Games?

This is a simple question, met only with the answer of an idealist: Yes. In a perfect world, every publisher past, present, and future would preserve their developer’s history. However, there is an inherent problem and it is to do with the phrasing: “idealist” and “perfect world.” These terms are filled with more hope than a teenager expecting to get a fairy tale ending.

In the world of the idealist, you’d be able to play all the games anytime you liked on any system you liked without having to do inconvenient things, such as inserting disks every time. The world of the idealist is a Star Trek world: One where conflict is done through words, not war. A world where all trouble is forgotten for the greater good of humanity. The problem there is we don’t live in a world which that is viable, where all our basic confrontational constructs built over years and years of Red vs Blue, Black and White, Sony and Microsoft, and so-on melt away with a goal of simple overall pleasure.

I am talking about the discussion around Sony’s recent announcement following the rumor that the PS3, Vita, and PSP online stores will begin to walk and talk like the dinosaurs. I assume that’s roaring through a V8 as Jeremy Clarkson shouts, “POWER!” Since the announcement, the overall discussion has focused around: “Should Sony preserve the history of games [in general]?” No.

Ok, that’s a bit of a conflicted answer given what I opened this article with. Yes, Sony should preserve its history, there is no doubt about that one. They have overall control or at least a majority control one would believe over those releases. However, let’s say a studio closes down and the publisher soon follows suit, who then is left to preserve the game? This is where I should say that this article is entirely based on opinion. It is not legal advice, and we’re going to have to cover topics of grey-area marketplaces and the likes of such. See, the question is just one of the many muddy ones we have to look at when saying the likes of Sony should be preserving anything.

Let’s take, for example, the demise of THQ. During the PS2-era of gaming, they were one of those publishers that were just “too big to fail.” They were pumping out just about everything under the sun. Spongebob games, wrestling games, and everything in between. They’d surely never, to tersely put it, go under. However, in 2013 the games publishing giant folded faster than I do on the weekend into a corner to read political biographies. They began the liquidation process following Chapter 11 Bankruptcy in December of 2012, ending on the 23rd of January, 2013.

Of course, those of you familiar with games newer than those of 1987 know the Austrian company Nordic Games would later become THQ Nordic, buying up several of the licenses/trademarks. Some of those licenses would pass on to other publishers, such as 2K or Deep Silver. However, they would more or less “preserve” several series within the THQ trademark umbrella. What about the smaller publishers and developers with similar history? How about the small games that almost no one remembers but myself, because I am weird like that.

See, go on GOG or Steam and you’ll be able to find Hogs of War no problem, the Ric Mayall voiced piggy turn-based strategy for the PS1 released in 2000. Now, in Sony’s defense, they did put the game on the game on the PlayStation store… for the PS3, PSP, and PS Vita. Which means we’re back to square one aren’t we? The PS1 classic title is being hogtied and roasted above a coal fire right about now.

Technically, the game’s initial publisher Atari, is still around. Though, they are only as alive as Schrödinger’s cat is still alive if you are stupid enough to believe a cat can survive since 1935 in that box. I should have put air holes in that for Edwin. The point I am trying to make is that Atari is having a bit of their own Chapter 11 issues with money, along with throwing the RollerCoaster Tycoon name up the wall in horrid mobile pieces of tripe. So, I don’t believe they are the ones saving the beautifully weird games of yesteryear anytime soon, and I don’t think anyone else will either.

Of course, this is one of the few instances of the game being preserved on PC via GOG and Steam, but that’s not saying every game gets the same treatment. Until recently, there was a bit of trouble with getting your hands on 40 Winks, another PS1 classic that haunted all our childhoods. Once again, 2012-13 Eurocom collapsed and laid off 200 staff, deflating the developer of some of the many movie and TV tie-ins of the 90s and 00s, and developer of 40 Winks. It was a game published by GT Interactive, later Atari, which had previously published Doom, Quake, Driver, and Unreal.

I get it, some of you may be born after the year 2000 and might be asking “why do you care about these old games?” We learn from our history. Take for example the number of games of the early 2000s that used X or A as the throttle for driving games: I’m playing a big of Race Driver: Grid (2008) for the Nintendo DS, and it uses this method. We don’t do that anymore for typical controllers because you can be more precise with R2 and RT.

I say you can be more precise, but as I’m finding with F1 2020 and turning traction control completely off while playing on the 4K TV in the living room, you aren’t always as well-defined as you think you are in that skill. Nonetheless, that is just one of the many changes we’ve made over the years to games. Those decisions have only improved our experiences now. Believe it or not, but back in the day, we’d sometimes use square or X on controllers for firing guns while using the left analog stick to aim and R2 to aim. We were fools!

A more recent example would be Dying Light using R1 as the jump button, requiring you to hold R1 to jump and clamber onto ledges. Conversely, Batman: Arkham Knight would use R2 for your accelerator, but used the square button as your brake and reverse. I’d like to talk with whoever thought these would be great ideas. The question that should be asked here is, how did we grow and learn not to do this? We looked back and said, “that’s bad.” Then we implemented basic control reconfiguring/button mapping tools that allow us as players to better the games we play to our pleasure.

Now, something like that seems like an obvious thing to include but it has taken years for things like this to become standard. Only more recently we’ve been learning to make games far more accessible for players. Now we’ve added things like filters for color blind people, seizure-safe modes for epileptics, dyslexic filters for fonts, and reducing strict timers both to competing puzzles and for quick-time events (QTEs). We’ve grown more as a community after years of many people being told to just adapt to games not made for them, and we’re better off for it because we’re also telling different stories now.

What does this have to do with Sony and preserving history? Well, everything. So much of gaming nowadays is based around retro games, along with the idea of capturing what you loved in your childhood, and as a developer improving upon that. Sometimes these games are learning well from history, but a majority of the time it is quick turnaround jobs to slop out on Steam. Once in a while some developers just don’t bother (FromSoft). We somewhat need to be able to look back at our mistakes of the past to not only make games more accessible, but also more enjoyable.

Nevertheless, Sony was the biggest question mark against how we preserve these older games through their virtual storefront. Well, I say they were, that was until we got a reminder that Mario was to so-called die on the 31st of March. Yes, Nintendo did one of those Nintendo things and created a great big mess with something that would/could make people defecate money onto them for the rest of time, or until the Switch is made obsolete (around the heat death of the universe). Instead of making the three highly requested remasters/ports of 3D Mario games available for the rest of time through the digital store, there was a time limit on how long they would last there.

Between these two stories the conversation has been kicked into overdrive, though for years now the question has been bubbling in the background of many heads, including mine. I’ve previously stated that I will often find myself grabbing games secondhand in their physical edition, which is why I rail against a disc-less future of gaming. It is getting rid of this simple thing. I remember years ago, when Microsoft/Xbox tried to curb the secondhand market with a bit of a controversial take on what was already a sold product. They were attempting to create more or less a tax on secondhand games.

If you don’t remember, or you are too young to remember, the idea was that you’d have to pay an activation fee to get the game to work once again on the Xbox One. This was 8-years ago, when we still cared about these types of things. Of course, the Xbox One had many issues on launch and its announcement, the least interesting being very much the Kinect security issues and anti-consumer practice of not allowing secondhand games. Nonetheless, years later I am sitting next to one with a handful of secondhand titles behind me, and I love the little thing.

However, Microsoft/Xbox gets pulled into this little kerfuffle too, as they made a statement following the announcement that more games will be available through their cloud gaming service. You can play classics on your phone. Some, I.E. the fire-stoking portion of the “gaming press,” have taken this mundane PR-driven statement as a stab at Sony, somehow. However, the statement is nonetheless true. We can facilitate the classics being played on modern hardware with a bit of elbow grease, so why don’t we?

Well, there is a simple fact: Preserving every single thing in history is going to take up space. For those of you still reading Harry Potter and calling it the best thing ever-written, there are other pieces of fiction with far greater stories that might make you a better person, such as Jorge Luis Borges’ The Library of Babel. To drill it down to the absolute, this came from Borges’ essay that traced the history of the infinite monkey theory, noting “Strictly speaking, one immortal monkey would suffice” to create all the books in the British Museum.

Taking this to the extreme conclusion, his fictional library of interlocking hexagons (bestagons) playing host to every piece of work ever written (including nonsense) is huge and labyrinthine. If you go back and click on the link over “To drill it down,” hit Ctrl + F to search that new page, and put those words in, you’ll see that entire sentence in a virtual version of the Library of Babel. Now imagine taking that entire conclusion into the real world of storing video games. Take every single one of them, from Bertie the Brain to whatever we have in many years from now. Yes, we’ve created storage devices of greater and greater capacity, allowing us to attempt these types of things, but there is a better question.

Is it worth it? Think about this one, because it is a far greater question than you’d first think. You may say “yes” right away, and then later think of some games that should never be preserved beyond examples of “don’t do this.” However, when you thought of saying yes, you were thinking of Portal, The Last of Us, Grand Theft Auto: San Andreas, The Witcher 3: Wild Hunt, Dark Souls, the Metal Gear Solid series, Far Cry 3, and so-on. That includes preserving the nonsense, the awful bile that is slopped out onto Steam, and beyond. I don’t think every single piece of it is worth preserving.

Nor do I think it is worth sacrificing the sanity of the monkeys in this extreme example just to catalog and gate-keep what goes in. It is a tricky and annoying point to say everything should go in, as common sense should prevail over time. Common sense should stop things like Yohjo Simulator ever being sold in the first place. Yet now that some things have been patched out, Valve thinks it is ok to sell that piece of rancid putrid bile.

Anyway, back on topic: Asking the likes of Sony to preserve all of gaming history ever released on their platforms would be a bit of a quick question for them to answer. It would be a simple no. It isn’t a Sony/PlayStation job to preserve the history of Atari, Epic, or Bethesda. That’s up to them. Could/should Sony be preserving their own history? That’s where I think this conversation works best to start from: Yes. It is their own work, that for which they have the most control over. Additionally, I think it is the thing that any store owner would be most resistant to withdraw, i.e. their own product.

So the question once again falls to, who preserves the games of years gone by? Legally speaking, it would fall to the publishers, for which there is quite a lot of apathy towards putting in the amount of work needed to preserve some of these games. Some systems do it automatically, Microsoft is known for preserving what once was, with a small amount of change in the background. The linked video of Tom Scott’s The Basics series covering PC backward compatibility even notes a section about games. Sometimes it is simply illogical or inefficient to preserve that history through official means.

This is where I need to clearly state that neither I nor Phenixx Gaming are condoning or advocating what I am about to talk about, it is just part of the discussion. Emulation, one of the many parts of the grey areas within gaming, is one of the points of which preservation crosses into what is both morally and legally questionable. On the one hand, yes if the game is 30-years out of print, the developer and publisher are out of business, and the copyright holders haven’t kept up with their side, it becomes quite grey but not entirely illegal to reproduce works. Before anyone takes that as legal advice: You need to track down copyright holders and make sure there are no active trademarks.

For example, you’ll have seen many works produced in this manner, it is called the public domain. Anything made by H. P. Lovecraft, Edger Allan Poe, H. G. Wells, Edith Nesbit, Louisa May Alcott, and more all fall within the public domain. This is why you see Cthulhu, Jack and Jill, and Dr. Jekyll and Mr. Hyde everywhere. They are no longer within the copyright-holder’s hands, thus can be reproduced for further works. Half of what Disney is built on is taking stories from the century before and making it their film. This is why kids nowadays don’t know who Jacob and Wilhelm Grimm are, but they’ve seen some form of Cinderella, Rapunzel, Snow White, Sleeping Beauty, and more.

Before I get back to the point of games, many copyright holders (such as Joanne) are fighting to extend their reach. Currently, anything produced from 1978 onward is eligible for copyright up to 70-years following your (the copyright holder’s) death. Now, theoretically, that works for books or music, something with either a small team or often one person working on creating it. Once you introduce film, TV, and games into the mix, you are really creating a bit of a mess as there is no single person responsible. It is a corporate-based copyright for which I am not well-versed in. From there on in, you need to seek legal advice beyond my basic/general knowledge of copyright and public domain laws.

So, let’s hypothesize and say there is a game out there in the public domain that was heavily copywritten. Who preserves that? As it is public domain, it is a public interest therefore most commonly it becomes a matter of museum-based ideals or volunteer-based preservation. i.e hobbyists. That returns us to emulation, something that for the most part dances on the line of legality wearing a funny hat and shouting rude words at lawyers.

This is my opinion of the best course of action, not the legal line which is hazy enough without me spitting on it: As long as you have paid, own, and could run a classic console and game, you should be able to emulate. The trouble there is, the line hazy enough to allow that is allowing outright piracy in extreme cases, which is legally black and white. So the fact I do own Burnout 3: Takedown and have it behind me, that I own a console that could run it, and that under the legal mess I’m fully able to play it: If I downloaded software to emulate the console and run the game, that’s the grey area.

Once again, in my opinion, owning the console and ripping the BIOS from it to emulate the console as a matter of maintaining the hardware that is no longer in production, that should be legal. However, it dances on that line so much that some would argue it is illegal. Of course, the argument being that if a remaster were to be released, I should instead buy that. I’ve said it time and time again, if you give me a remaster of Burnout 3 and The Sims (1), I’ll rob banks for EA all day long just to keep them happy. For EA (and other) lawyers, I am joking.

Putting aside those legal questions, the morality is still something I’d question but others don’t for dull reasons. I don’t want to count the number of times I’ve heard that I should play Paper Mario: The Thousand-Year Door, mostly because I would like to preserve my sanity overall. Nonetheless, the 2004 RPG has only ever been released on one poorly-timed console on disks as small as the face buttons on any controller you own. No matter how poorly the console sold in its few years, or how few copies the game sold overall, it is still highly requested whenever discussion comes up of a remaster/port. Yet it never comes.

Some see apathy such as that from the likes of Nintendo and stop questioning the morality of emulation. I’m not saying I agree that they should be doing that, but I understand the frustration. You as the player might want to preserve the game, you might see complete apathy towards the game from the publisher, and this becomes the only option. It is the last resort, putting you alongside criminals doing much worse. Before I even touch on actual piracy, I’ll stop myself as that’s a whole other separate kettle of fish.

The entire idea of emulation can indeed be a well-intentioned one with every attempt to stay on the side of the law. However, those stepping/falling over the murky line can be well-intentioned too (hence “falling”). Up until recently, fans of the Destroy All Humans series would have to have a PS2, the game, and hope the PS2 doesn’t die. Now it is on modern consoles and updated for PC. Not every game gets this same treatment, either as a cult appeal or mass financial attractiveness (just give me The Sims and all its expansions!) isn’t enough for publishers, and there are thousands like that.

Some are rightfully being denied access into the Library of Babel video game section, but some are otherwise less fairly judged. The first Red Dead game, Revolver, is something we should be learning from. Just as we should be learning not to do BMX games with Dave Mirra, unless we know how to do BMX bike physics now and we’ve resurrected him from the dead. The simple fact of the matter is this: If you want to move forward and make games better overall, we need to be able to look backward. However, we can’t do that without some form of preservation.

So, for the last time, I’ll ask the questions: Should Sony or Nintendo preserve every game on their platforms? No. Should they, at the very least, maintain the ability to buy their games? Idealistically, yes! Should the publishers/copyright holders of games be held responsible for conserving their games? Yes! Who is left to pick up the pieces when this doesn’t happen or, for the company, is no longer viable? That, I think is the question we should be discussing as a community. We know the answer to the other questions. Let’s properly discuss and get to the button of this one, once and for all; At least so we know how to preserve games properly and who to blame when they aren’t.