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The retro gaming industry could be killing video game preservation

"These companies are taking advantage without giving back."

There's arguably never been a better time to play older games. Companies like Nintendo and Sega are reconnecting players with their heritage via products such as the SNES Classic Edition and the smartphone-based Sega Forever range, while a flood of third-party companies like Analogue, Hyperkin, Retro-Bit and AtGames are manufacturing clone systems which offer a means of playing original cartridges with creature comforts such as HD output, save states and much more besides. On top of that, we've seen vintage games appear on a myriad of digital storefronts, most notably the Nintendo Virtual Console and Switch eShop, the latter of which has been getting fresh Neo Geo games each and every month since launch thanks to Japanese company Hamster.

The fast-moving nature of the games industry and the dizzying number of different consoles, each with their own unique technical specifications and foibles, once led some experts to ominously predict that unlike music, TV and film - mediums which can be easily transferred from format to format as new storage technologies appear - video games were in danger of being locked in the past, fenced-off behind the peculiarities of their host hardware. Emulation has done an excellent job of preventing this grim future, but ironically the new-found commercial success of this burgeoning sector could end up crippling its long-term prospects.

One of the more recent emulation success stories is the freely-available RetroArch, a downloadable frontend which works in conjunction with backend application Libretro. It has become one of the most respected means of playing old games on modern hardware; it's available on Android, Windows, Mac, Linux and (unofficially, thanks to the efforts of industrious hackers) the Nintendo Switch. "Contrary to how most people perceive it, RetroArch is not an emulator in the traditional sense," explains Daniel De Matteis, software developer and current lead of both RetroArch and Libretro. "RetroArch/Libretro is a frontend/backend project that seeks to create its own ecosystem of software that runs as dynamically pluggable code."

Despite having not been created with retro gaming expressly in mind, RetroArch has nevertheless become the go-to download for many fans of old-school games for a variety of reasons. "It has next-frame response time, which means that in terms of input latency, under the ideal setup, you can make RetroArch have zero frames of input, practically indistinguishable from real hardware," explains De Matteis. "A major distinguishing feature of FPGA [Field-Programmable Gate Array] retro hardware is normally that input latency is so much lower verses traditional emulation, but with RetroArch, there is no such issue. This is a major feature since so many emulators traditionally have built-in 3 to 4 frames of input lag, which impacts your enjoyment."

RetroArch's success is down to a team of spirited and enthusiastic volunteers who have given up their time and talent to produce something which - amongst other things, as De Matteis is keen to point out - connects players with the games of yesterday. Unfortunately, this hard work is being undermined by the fact that parts of RetroArch's codebase are being sold within commercial systems without the permission of the creators, and without giving the team (or any of the developers who have spent countless hours creating the emulation 'cores' which reside within it) any financial reward or basic recognition.

"This started around 2014 when Hyperkin first launched its Retron 5 console," reveals De Matteis. "No statement was made that this was built off the backs of several open source emulators. It took independent researchers having to reverse-engineer the software to figure out it was using our Libretro cores verbatim. After this got exposed, they came forward and admitted to the usage of these emulators, which necessitated them opening up the source code. However, the elephant in the room here is the continued use of Snes9x to this very day, a non-commercial emulator that has existed since the 90s. There have been an untold number of contributors to that project since, most which can no longer be reached at this point. In order to sell this emulator, you need the permission of each and every copyright holder that has contributed."

The convoluted nature of the video game emulation sector means that emulators rarely stand still for long; like any other program they are iterated upon, improved, modified for different tasks and generally tinkered with endlessly, creating development forks which branch off in multiple directions. It transpired that the fork of Snes9x used in the Retron 5 could be directly attributed to De Matteis himself. "Snes9x Next/2010 was a speedhack-focused fork that I personally developed, open sourced and published on Github," he says. "I had to perform heavy alterations to this core to get it to run acceptably well on old hardware. It is likely they used the software for this exact reason; that the others were not up to par performance-wise and it offered a good balance between performance and compatibility. Needless to say, I was never consulted beforehand; software was simply taken and sold in spite of its license that expressly forbids this."

In Hyperkin's defense, it's not like the company simply downloaded the code from the web and installed it on the Retron 5; like many firms of this type, it didn't develop the software in-house but instead purchased it from an external contractor. De Matteis knows who this individual is - and has informed Hyperkin that he is aware of their identity - but doesn't wish to name them here. Nonetheless, this contractor has profited off the hard work of the RetroArch team. "It is illegal for him to sell this," De Matteis states. "I hold specific copyright on vast portions of the Snes9x fork he has been using, and other people downstream also have their own individual copyrights. He cannot be sublicensing noncommercial software code written by dozens of independent volunteers to random companies."

To make matters worse, shortly after the news regarding the Retron 5 broke, another company was found to be doing the exact same thing. "A year later, Cyber Gadget released its Retro Freak hardware," De Matteis continues. "It appeared to be using the exact same source code as the Retron 5; the source code archive even expressly stated 'for Retron 5'. Years later after the fact, we have discovered that both Hyperkin and Cyber Gadget didn't actually develop any of their own software, but had bought it from the same contractor." How could these two businesses possibly use a piece of externally-produced software in a commercially-available piece of hardware without first making an attempt to properly ascertain where it had originated from, or if the contractor even had the right to sell it in the first place? "Their basic defense was that they had sourced their software from a contractor whom had told them this was legal to sell," explains De Matteis.

"We had hoped these companies, when faced with the clear-cut evidence that they are infringing upon non-commercially licensed emulators, would have done due diligence and shown themselves to be honest brokers by complying and removing the offending emulation cores," De Matteis says. "We have not had any correspondence until a short time ago, when I started sending emails to remind both firms that not only do we now have the name of the contractor who sold them this software, we know for a 100 percent fact he cannot legally sell this to them with Snes9x being included."

Only one company actually responded directly to De Matteis' emails: Cyber Gadget. "They sent me back an email stating they would temporarily freeze the sale of Retro Freak until they had done a full audit of the software. They have contacted the contractor and told him to provide them with proof that what he is selling is legal for him to sell. Obviously he cannot prove this, and this is why just a short time ago, he started contacting Byuu [creator of the multi-system emulator higan, previously known as bsnes] independently and asking him for a license. What good the license to bsnes/higan will do him is unclear since the internal hardware of both the Retro Freak and the Retron 5 is too weak to properly run higan at full speed, so a complete recall of the hardware would still have to be done and the specs significantly raised in order to be able to run the software competently."

Byuu's name is famous among those in the retro gaming community thanks to his efforts in the realm of SNES emulation, and higan is perhaps one of the most accurate emulators currently available, having been in active development since 2004. He empathizes with the RetroArch team. "My own contributions reside in Snes9x, so commercial sales of it have violated my IP rights as well," he explains.

The situation regarding Snes9x is just one example of how poorly-treated the emulation community often is by bigger, more powerful commercial entities. Even when firms like these 'do the right thing' and make contact beforehand, it doesn't always go to plan. Late last year Retro-Bit released the Super Retro-Cade, a micro-console officially licensed by the likes of Capcom, Data East and Jaleco (or, in the case of the latter two, the companies which now own those brands) that came packed with classics such as Ghouls 'n Ghosts, Final Fight, MERCS, Mr. Heli, Boogie Wings, Double Dragon and Renegade. Taking into account that it features games from the arcade, SNES, NES and Mega Drive, RetroArch's multi-system ethos was a perfect fit for the Super Retro-Cade.

"Retro-Bit were not in contact with me directly, but through another volunteer member that they kept in touch with," De Matteis says. "They first contacted us around August 2016. The employee of Retro-Bit left the company a few weeks before the Super Retro-Cade was released. At the time, we were struggling for funding, so I think the Libretro volunteer member who spoke to them believed that by providing proper counsel and showing some goodwill, we would gain a valuable hardware partner. Our volunteer warned this now-departed Retro-Bit employee that there was no way that the software he was buying from an external contractor would have a bunch of clean-room emulators fit for commercial use within a few weeks. Despite these warnings, he went on and bought it anyway. A few weeks before Super Retro-Cade released this employee was terminated, and our volunteer member gets contacted by Retro-Bit again. He is told that they are scrambling to release the product, but they don't know what kind of emulation cores the software they bought contains. They said they know it contains RetroArch, but that they cannot vouch for the legal status of the software they are using to power SNES and arcade emulation. Despite sending us this email and asking for our help once again - at this point the volunteer member disassociated from them and sent the email to me instead - they started selling the console anyway."

This worrying strategy of 'shoot first, ask questions later' is common, according to De Matteis. "This is just one of many instances where the same mistakes keep being made, and the main intent is just to make money, and worry later if it's all legal and correct," he laments. "We are not going to play the role of a low-rent contractor in order to fix up the obvious missteps and amateurism on display when cobbling together these products. We feel almost offended and insulted that our hard work and labour has all amounted to the legal quagmire on display, and to add insult to injury we aren't making a single penny off it ourselves - yet our time is being used up regardless."

Couldn't it be argued that with such a convoluted history behind each emulator - some of which have been in active development for over a decade - mitigate the mistakes made by the likes of Hyperkin and Cyber Gadget? De Matteis isn't prepared to give that side of the debate any thought. "Ignorance is not an excuse, and if one wants to start up a company from scratch and make products, you should have the appropriate lawyers and legal consultants at hand to make sure all this is properly vetted.

"There is no excuse for this kind of incompetence in the legal department. We have consistently pointed out the issue to them, yet despite this, these products still keep being sold. We assume that without the threat of legal force, they are not willing to give up on their main breadwinner. I am sure Hyperkin, Retro-Bit and Cyber Gadget have some talent and skill when it comes to hardware development and the creation of legitimate clone hardware, but they should probably stick to what they know best and not take some anonymous contractor at his word when he tells them he can sell them some emulation software legally."

You may well be wondering why De Matteis and the team behind RetroArch haven't taken more aggressive action against these firms. The answer is simple; like so many open source projects, there has never been any intention of turning a profit so no money exists to mount a robust legal defense. "None of us in this scene started our projects with business in mind," De Matteis admits. "We are (or were up until now) hobbyists, people who don't have lawyers on speed dial or have legal funds in order to mount a convincing defense. In many ways, we are the victims of our own success; we have succeeded as a project in that we are now omnipresent and everywhere, and our software is being used on many devices where it is not apparent to the user what software is actually running. Unfortunately, any economic opportunity has been stolen from us at every turn. Class-action lawsuits would be an option, and the longer software that is licensed as non-commercial continues being sold, the higher any potential damages could be - but again, the money for that would have to come from somewhere."

The end result is that this outright theft of non-commercial software is actually forcing people out of the community, and that can only be bad news for retro gaming in general. "This stuff is really starting to wear out the mostly volunteer coders who contribute every day to our project - and others like it - to improve it," says De Matteis. "We are bleeding talent and motivation thanks to a bunch of companies that are using our software and downstream cores in ways we have never approved of; they shouldn't be selling this software without proper accreditation, acknowledgment, or some basic compensation. We have to walk a tight line between continuing to use the tools we have to raise awareness on this while at the same time also making sure that we retain the current developers we have and they are not spooked by some kind of legal showdown that would get them caught in the mix."

While Byuu explains that he was well aware of the risks from day one, he admits that it could put others off contributing valuable work to the retro scene. "I knew about license violations before deciding to open source my own work, and it did concern me," he tells us. "But ultimately I decided to accept the risk, because the contributions of the community and the betterment of emulation for everyone outweighed the risk of license violations. But that was just for me. It's very plausible other developers will feel differently."

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It's saddening to think that these talented volunteer developers - who know full well that their hard work is being illegally sold by bigger firms who fail to acknowledge or reward them for their efforts - could possibly walk away, but Byuu points out this is a reality that is happening right now. "Most of the times the license violators reside in other countries, but even if not, there are extensive costs to mounting a legal challenge, and these efforts can backfire if the other party has better lawyers. It's hard to claim damages on a free product, and it would be even harder to pay legal fees if you were to lose. Given we are working for free, we often simply cannot afford to challenge license violations, and I'm sure the violators are well aware of this fact. Further, speaking from personal experience, any time one raises complaints, they face significant backlash from a small percentage of the general public. You absolutely will have fans of these products disparaging you for criticizing the company or product they've invested money into. Most emulator developers I know wish to keep a low profile, and choose to stay silent when their rights are infringed. The reasoning is, 'nobody likes a complainer.' Daniel and I are very outspoken, and as a result we tend to be rather infamous within the community. It can be rather exhausting at times."

In fact, De Matteis feels that such business practices could end up harming not just the emulation scene, but open source development in general - and that could have wider and more dramatic repercussions. "Unfortunately, stuff like this has the nasty side-effect of people losing faith in open source. If open source stops being a two-way street where both sides benefit and instead becomes something where one side just engages in endless self-serving vampirism, don't be surprised to see the well of open source code continue to dry up, especially when it starts becoming a legal quagmire as well. Despite this, so far we have stuck to our guns, and we still believe so much in the future and viability of RetroArch/Libretro as a project and platform that we are unwilling to let some bad apples spoil the bunch."

De Matteis believes that the open source emulation community needs to be given much more respect if it's going to thrive in the future and (perhaps unintentionally) sustain companies like Hyperkin, Retro-Bit and Cyber Gadget - companies which cannot possibly produce the same quality of software in-house. "This scene is still being unfairly maligned by industry powers as being 'non-legitimate' even though the courts have ruled in emulation's favour from a legal perspective," he points out. "These companies are showing they are not contributing to their own ecosystem by not giving back to the people that have worked as volunteers for numerous years writing this vast wealth or knowledge and software. They are just focused on making a quick buck off licensing deals and the like. I only fear for what it could mean for the future of open source emulation if this kind of blatant exploitation continues. It is not right for one company to prop itself up off the backs of open source authors who they feel don't have the necessary organization or wherewithal to mount an effective class-action lawsuit against them, and then laugh all the way to the bank. These companies are taking advantage without giving back. Free admission to the competition, where they have free entry, and none of the brakes applied."

This is all the more frustrating for De Matteis and his team at RetroArch (and, by extension, Libretro) because they're trying to create a solution which not only aids companies like Hyperkin and Cyber Gadget but at the same time ensures that the people who create emulators are rewarded properly for their work. "We reiterate that RetroArch/Libretro is not an emulation project, despite the numerous emulators that are available as part of its ecosystem," he explains. "We very much would like to be able to work with game developers and game publishers to expand this ecosystem, and we think there are definite opportunities there that they have not yet considered." Byuu believes that many within the community would gladly work with these companies if given the chance, and it needn't be considered an expensive investment, either. "There are many open source emulator developers that would be happy to license their products commercially for less than a week's pay," he says. "In most of our cases, we are doing this work in our spare time and for no pay. Having our works exploited to enrich others is very demoralizing."

In the future, De Matteis insists that he and his team can no longer entertain informal or verbal agreements from businesses. "We can no longer talk to a company unless it's on a strictly business-to-business relationship level with a written agreement," he says. "Gentlemen's agreements have not worked for us; talking to them as volunteers and hobbyists without a company behind you merely puts them in the driver's seat when it comes to any negotiations, and they think they can treat you as a glorified employee or contractor that cannot come after them later. We have to start protecting ourselves; without a company, nobody will take us seriously and we will continue to get taken advantage of and have our time wasted."

We approached Hyperkin, Retro-Bit and Cyber Gadget for comment in the process of conducting this report. We were told by a Hyperkin representative that the contractor who supplied the software for the Retron 5 has been in charge of "fixing the problem and communicating with devs" and that "the Retron 5 has gone through several updates to remove the code that causes the issue" - something which, it is claimed, has resulted in the system losing compatibility with certain games. "Our understanding of the entire situation is that it's between the contractor and [RetroArch]," stated the representative. When informed of the unanswered emails sent by De Matteis - which Eurogamer has seen - the representative pointed out that the product manager employed to oversee the Retron 5 project left the company around a year ago.

Hyperkin's representative was keen to stress that now the issue has been brought to their attention, every effort will be made to work with developers to ensure they receive proper creditiation and that measures have been put in place to ensure this kind of oversight never happens again. We have also been informed that Hyperkin has successfully licensed higan and Stella for future consoles, and is currently in the talks to secure similar open source apps for commercial use. Also, the company is no longer relying on external contractors and is creating all of the software used in its machines in-house. "We hope we can come to any resolution that properly gives credit to their hard work," the representative concluded. "They are more than welcome to reach out again."

We duly passed on Hyperkin's invitation to open active discussions, but De Matteis remains aggrieved that it has taken this kind of action to gain any kind of positive result. "We published blog articles listing all our issues with the Retron 5 product a while ago," he says. "They didn't respond to these posts; that was 2014. It is 2018 now. Nothing has changed, and the Retron 5 is still being sold on their storefront."

While Hyperkin and RetroArch clearly have some talking to do behind closed doors, Byuu has already reached an agreement with the company - although he is quick to point out that this does not make up for previous indiscretions. "I spoke with [Hyperkin] in private about my concerns with the Retron 5," he explains. "[They] assured me it was not their intention to violate the Snes9x license, and that they wanted to correct this by licensing software going forward. In my view, our goal is not to prevent the business side and the hobbyist side from working together, it's to get the business side to respect our rights. And so while I don't feel that licensing my software absolved Hyperkin of their past violations, I felt it was a step in the right direction. Concerns were raised by others about me engaging in this licensing deal, and I tried to take those to heart. From that point on, I have decided to only license my emulator to companies who pledge to not violate non-commercial open source licenses as part of the terms of our agreement. It is a risky move that may end up preventing future license sales, but I do hope to show solidarity with others' whose licenses are being infringed. I don't want to believe that all businesses are beyond cooperation, and I'd like to work with them instead of fighting them. But of course if they refuse requests to follow our licensing terms, then we generally have little recourse other than calling attention to the violations."

In the case of Retro-Bit, we were supplied with the following statement: "We are a company who is very passionate about retro gaming and would like to provide the retro gaming community the best experiences possible. As stated in the Libretro article, we reached out to RetroArch in good faith via email to explain the situation and coordinate a discovery call. We still hope for the opportunity to discuss and clarify the matter with them and possibly collaborate for possible future ideas and concepts to support the retro gaming community." De Matteis has confirmed that since taking part in this feature, the vice president of Retro-Bit has made contact and there are ongoing discussions about removing the Super Retro-Cade from sale and replacing it with a product which doesn't use non-commercial emulator cores. Cyber Gadget also issued us with a statement, saying: "All issues concerning the claims of the other party are currently under thorough review. We apologize for the inconvenience but no further statements regarding this matter will be released at this time."

You may be left wondering what all the fuss is about; these emulators are freely available online, and - despite being perfectly legitimate to create and distribute from a purely legal standpoint - give players the tools they need to run copyright-infringing ROMs on a wide range of devices. Surely this situation only harms the gaming industry in the long run, while officially-licensed products like Retro-Bit's Super Retro-Cade allow copyright holders to generate revenue on titles which would otherwise be forgotten?

While the issue of piracy remains a tricky one from a legal perspective - even when dealing with games that are effectively out of print, copyright still exists and should be honoured whenever possible - it's clear that not every company out there has the resource (or the inclination) to take Nintendo's lead and create its own in-house emulators for use in products like the NES and SNES Classic Edition consoles. Ultimately, the proper preservation of gaming's history is falling to unpaid volunteers like De Matteis and his team who work tirelessly to ensure that games from the past five decades of interactive entertainment history remain in a playable state for the foreseeable future. These individuals are toiling not for commercial gain, but for sheer love of the medium, while commercial entities are jumping on the retro bandwagon - at the expense of people like De Matteis - with the primary goal of making cold, hard cash. If this non-reciprocal relationship continues, a large part of gaming's history could be at risk of being lost.

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