Sorry Nightmare Creatures. Next week. I love you.
So, yeah, that happened.
If you remember, at the end of May I did an unboxing post on the Ouya. My Ouya. The one I paid for via KickStarter. The one thing I spent time last year defending, and the majority of that post justifying. It seems strange then, that for all the things the Ouya can do and the talk of its open, modular nature, that I would kick up a fuss about something as inane as emulation.
But the point is this; if we don’t, Nintendo will. And Ouya will rue the day we didn’t get involved.
Here’s the law. Copyright Infringement becomes Theft-driven when a company profits or uses it to sell a product without the due consent, rights or agreements of the original creator. The offending retweet, and the accompanying picture, amply demonstrate this (and, big surprise, they deleted it from their Twitter feed. But nothing stays hidden on the Internet. Oh no. We are watching you…). I would find it incredibly hard to believe that Nintendo would allow the Ouya people to release Super Mario Bros. on the platform for two reasons; the first is obvious. It still remains under Copyright and trademark jurisdiction, largely because Nintendo are still selling it, and Mario is an exclusive to Nintendo platforms. This is just how it is. Mario is inextricably and inexorably tied to Nintendo.
The second is that Ouya, no matter how they paint themselves, is a rival platform.
Some may find this strange to say but at the lower end of the gaming spectrum, Nintendo already has the Wii. Then it’s got a slightly more expensive next-gen Wii U. Both platforms will be in direct conflict with the Ouya platform – and it IS a platform. The nature of the machine is open, sure. Modular, can be hacked and tweaked whatever way. But this does not give it ‘Carte Blanche’ to ignore the rule of law. Open and free still requires rules and regulations to ensure that no matter where you are headed, your machine – unhacked – and your brand/company don’t end up in a legal tussle. Unfortunately, by utilising an image of Super Mario Bros. in relation to the Ouya’s “retro gaming” potential, the company may have unwittingly and irreversibly signed away any hope for future retro releases.
Because, oddly, there is a big retro scene out there that isn’t Nintendo. You have Neo Geo and Sega, companies with a large back catalogue of titles and no platform any longer to restrict their ability to sow those seeds. You obviously also have old third-party games on platforms that could have been repurposed for the Ouya, even spruced up. Retro gaming is a huge scene – Nintendo and Sony make a lot of money from their back catalogues each year, after all. But they have their own platforms to sell on. The potential for entitles like Activision, EA and others to repackage old classics like Pitfall: The Mayan Adventure and Soviet Strike was immense with the Ouya. And by simply showing off that it was a big believer in emulation of illegal or still-copyrighted ROM files, it will have undone all that, fostering nothing but distrust and disdain in its methods and tactics.
Of course, you could say that Activision and EA and their ilk could always release the ROM files themselves as downloads for the emulators. But that would cross a dangerous line; set a precedent about ROM files and Emulation that the industry has long fought a battle with and has in the past few years, been winning quite comfortably. More and more sites are being taken down and more and more distributors of ROM files are getting punishments for breaching international copyright laws. More than that, Nintendo themselves won a landmark case not too long ago with the issue of the handheld piracy scene, and FLASH cartridges that could have multiple ROM files dumped on them, and the way the flash cartridge was designed was to make it easier than ever before to simply download a title, dump it onto a cartridge (that cost about $50) and plug it into the console. It breached patents, it breached the law and it was criticised for allowing the free use of ROM files to take hold.
It was a huge win for Nintendo. And no doubt, bolstered by that, they will be more than happy to rise to the challenge of the Ouya if they so wish it. Considering the tens of billions of dollars Nintendo has in the bank and the countless millions it makes otherwise, money is not an issue. I’m not so sure the people who privately financed the Ouya in the last year can say the same thing.
Nintendo also could be offended by the whole notion of the hashtag. It could be seen as a direct insult. A red rag to a bull.
The company is currently – and in my opinion, rightly – seeing a campaign seeking to end the notion of region locking. Nintendo is the last of the breed to maintain a region lock for its software, and once upon a time this was obviously a sensible thing to do. Markets rarely bled into each other. However, with games getting releases in one region a year or two before another (Xenoblade Chronicles, I am sorry to my American readers that you had to wait so long for it. My deepest sympathies…) and others not even seeing the light of day, in spite of containing English menus and subtitle options, the notion of the region lock seems rather antiquated in the modern, global world. At a time when Nintendo can orchestrate a global launch for its products, when it can ensure game releases within days and weeks of each other, it seems a little strange that it continues to defend and retain such a system. Many will argue a sale is a sale. And at a time when Sony doesn’t have a region lock, and Microsoft won’t (though this won’t really affect it that much, truth be told…), Nintendo is definitely the minority on this front.
However, the #FreetheGames hash-tag in light of this is at best, in extremely poor taste. Moreso when you have developers and publishers wondering if it would be best for Nintendo to go third-party (which seems silly when you think that Nintendo is about to generate hundreds, if not thousands, of jobs in a major studio expansion! It has that much money!). It’s, dare I say it, almost childish and immature in its tone.
I was told by a chap who calls himself arcam (I owe him a drink) that Ouya shouldn’t act like a big business. And I’d agree. It shouldn’t. But more than that, it shouldn’t act like a twat either. Which it did. Sad to say, it did.
And then there’s just how open the Ouya can be before it really becomes a problem for everyone. The notion of the hardware was the idea of “no limits”. There was no boundary too distant, no concept too wild. It wanted everything, the more outlandish and crazy the better. The problem I find with freedom is that without some sense of a limit, you just end up with anarchy. If there are no rules, and there is no police, then you can do what you want. And in the process, you’ll end up with a chaotic melting pot of everything from the bizarre to the downright illegal. Rules are important, because they define the playground for everyone who enters. And most importantly, the main one Ouya has is that it makes money on every sale through its product. This makes it not only commercially viable, but self-sustaining too. It can make money. It generates its own income.
Herein likes a problem. And it’s the big one. What if… Ouya is profiting from the idea of emulation?
That really should be an alarm for people to listen to, if for no other reason than it paints the Ouya as a target. As I said, the firmware is modified and the brand is there. The system may be “open”, but the rule of law isn’t. If it can be argued that people are downloading the Ouya so they can explicitly download emulators, and play ROM files held on flash drives, then the Ouya has a severe crisis on its hands. People are buying it to break the law, therefore it can be argued the machine and the company are facilitating a potentially criminal act. This, I fear, cannot end well for Ouya as a company. It doesn’t have a serious market foothold now; a legal challenge from the likes of Nintendo could destroy what few shoots have sprung up through the ground, killing it and ensuring the Ouya can never return or survive as a brand. Forever outcast, forever deemed a danger and a risk to the industry.
And I genuinely believe it would be a crying shame to watch the Ouya be roasted alive on the subject of emulation and ROM files. Because the message was about upending the gaming market, by having a machine that was modular, could be powered by the cloud (OnLive is not on the Ouya, but has to be sideloaded through the browser. Which in itself seems rather strange and faintly dodgy…) and, more than anything, cheap enough to allow for more upgrades and more interesting works on the technical side. It could be anything from an entertainment device to a learning experience in a classroom, as people make apps and games for the machine. The Ouya was never, for me, ever about emulation, or breaking copyright laws. It was about something much more important; giving people the space, and the freedom, to let their imaginations run riot. An affordable, intelligent solution to a marketplace. Something which people could be proud of, be happy to invest themselves in and stand up and be happy they bought it, knowing that they could get experiences on the platform that they were unlikely to get anywhere else.
I didn’t ever want emulation on it. I’m surprised they even allowed emulators on it. You’d think this was the line in the sand, the one place they’d say “No, guys, just no.” I’m sure if someone had jacked their Ouya and simply dumped an emulator on it that way, like some phones and even the PSP enjoyed, then the Ouya people could argue this was somewhat out of their control. But no. You can see it on their marketplace. Emulators. Not even hidden, but actively promoted.
They may even argue “We have no ROM files!”. No, but you have an extra USB slot. Most people have a cheap flash drive. You don’t have to be a rocket scientist to get what the implications are. Most people are capable of putting two and two together here.
And this is my big worry about the Ouya. Nintendo is a company with many issues, but ultimately this is one issue where Nintendo would feel very safe indeed in the crazy world that keeps demanding change. That it is entitled, and certainly capable, of defending itself and its properties to the fullest extent of the law. Whether Ouya wins or loses (I would assume the latter, if the flash drive people can’t make the excuse that they don’t provide ROMs, then I suspect the Ouya people will be unable to use it either…), the very notion that it could be seen siding or even retweeting the ability to play a rivals old games on your platform is frankly shameful. This was the one place the Ouya should never have tread. Even if we knew emulators were there, this was the one issue it didn’t need to promote, or be seen encouraging.
But it did. It did, it did, it just did. And deleted or not, that just leaves a nasty, bitter taste in my mouth. There was nothing clever, nice or witty about it. It was a mistake, obviously noted by the fact it was deleted with such haste as people gasped at the very concept of the Ouya making any reference to emulation. It’s still a sore subject. Still just taboo enough to cause a ripple of disbelief, and create an air of distinct unease. I find myself just surprised that any of this needs to be said really. The Ouya people should know all this. And if they don’t, then that is even more damning and shameful and to me would show them as completely out of their depth. They need to hope this doesn’t blow up, and the only way I see that happening is by grabbing the emulators on the Ouya marketplace and jettisoning them out of the nearest airlock. Without the emulators, there is no case. There is no problem. With them? Ooh-err…
It leaves me wondering if the bright Ouya dream may have just begun its descent into a chaotic legal nightmare. One from which it may never truly awaken. As much as I have talked about Nintendo, it is not unique on the emulator front (although I spotted NES, SNES, GBA, DS, N64 and GBA emulators, so Nintendo has the lions share of this!); I noticed a PlayStation emulator with a screenshot saying, “Look! Crash Team Racing! You can play this!”. There’s also a Mega Drive emulator, a Neo Geo enulator and talk of a Sega Saturn emulator on the horizon. It’s not a unique issue to Nintendo; Sony too will be watching with great interest…
I hope it won’t end this way. Because it would be a damned shame for a vision that started out with such promise, a vision so many of us bought into, to fall to ruin over something as painfully obvious as this.
One can only hope.