This is a conference paper presented at the 2021 Canadian Game Studies Association Conference.
Iantorno, Michael. “Double Bootlegs: Reproduction Cartridges of Videogame Hacks.” Canadian Game Studies Association Conference, 31 May – 4 June 2021, University of Alberta, Canada. Held online due to COVID-19 pandemic.
Hello, my name is Michael and I am a PhD student in Concordia University’s Communication program. This presentation is titled Double Bootlegs: Reproduction Cartridges of Videogame Hacks.
Before I get started, I will first acknowledge the support I have received from the Residual Media Depot, the Technoculture, Art, and Games Lab (TAG), and the mLab — as well as the Fonds de Recherche du Québec — Société et Culture. I’d also like to thank Alex Custodio and AD Cybulski for joining me for this panel.
I’d like to open things with a short anecdote.
In the autumn of 2020, I discovered that one of my Super NES hacking projects, HyperBound, had been appropriated and sold as a reproduction cartridge without my permission. I found the cartridge when sifting through the eBay storefront for a Toronto-based retro videogame shop.
To quickly summarize: HyperBound is a hack of the 1994 videogame EarthBound for the Super NES that I created as part of my senior undergraduate project at Ryerson University. Although “hack” can be a slippery term, for the purposes of this presentation I loosely define it as an unauthorized modified version of an original videogame. In this case, I took EarthBound, played with its narrative and combat structures, and released it on the Internet.
Since its release, HyperBound has gained a somewhat surprising amount of popularity online — having been featured on ROMHacking.net and in Anna Anthropy’s book Rise of the Videogame Zinesters.
Scrutinizing Reproduction Cartridges
Seeing my videogame hack turned into a cartridge was surprising but not entirely unprecedented. Videogame cartridge reproductions — essentially, cartridges that are manufactured and distributed outside of developer mandated channels — are found frequently across eBay and other online marketplaces.
The most common reproductions you see generally fall into one of three categories:
- Homebrew games. These are completely original games developed for consoles by independent developers or hobbyists, without authorization from the original game manufacturer. There is a very small but very dedicated homebrew cottage industry, which is mostly focused on high quality short-runs of games that include box art, instruction manuals, and other collectibles.
- Bootleg copies of existing games. These are usually popular “classic” titles whose prices have skyrocketed. Thus, the bootleg is meant to provide an affordable (physical) alternative to buying the original or, on occasion, is dubiously sold as the original at great profit to the seller. For example, an original EarthBound cartridge sells for about $350 while a bootleg sells for about $40 and looks roughly the same at first glance.
- And, finally, videogame hack reproductions. These are fan-modified versions of commercially-released videogames that have been packaged into a reproduction cartridge. These range from English translations of games that were never released in North America, such as Bahamut Lagoon, to hacks that change the narrative and gameplay of the original title, such as my hack, HyperBound.
Although there are many of these reproductions circulating in the world, I was still a little stunned to see a cartridge-based version of HyperBound up on eBay. A lot of questions began swirling through my head:
- Why now? I had originally released the ROM hack in 2007, meaning that it had taken 13 years for someone to make the reproduction.
- Why had the manufacturer decided to make the cartridge lime green, instead of the stock Nintendo gray?
- Why had the game been released as a European-region cartridge, while the hack was of a North American version of the game?
- Did I care that someone was capitalizing on my hard work without my permission?
- Did Nintendo care that someone was selling their intellectual property without their permission?
These questions point to wider topics in game studies, game histories, and media law and ethics. In this presentation — which can be seen as a prelude future research that I will be conducting during my dissertation — I want to touch on a couple avenues of investigation.
- First, the moral and ethical debates surrounding the creation and distribution of reproduction cartridges.
- Second, the discourses of authenticity and nostalgia that contribute to the emergence of such material goods.
The Legality and Morals of Reproduction Cartridges
When looking at reproduction cartridges, one of the first questions I am tempted to ask is: “are they legal?” As with all things related to intellectual property law, the answer is somewhat muddy. From the perspective of physical technology, one could argue that reproductions are allowed — at least for older videogames and consoles — because the patents for the original devices have expired. For example, the patent for the Super NES expired around 2011, twenty years after its original filing.
All sorts of companies have since manufactured devices that mirror the functionality of the Super NES, including compatibility with its game cartridges and peripherals. The RetroN is perhaps the most famous of these devices, but HyperKin’s Supaboy and Analog’s Super NT are also popular variations on the form. At first glance, one could assume that making new versions of patent-expired physical technologies is a legal, almost mundane, practice. However, I’d like to add the important caveat that IP law is almost entirely determined by a company’s willingness to enforce it, and new precedents for what is legal and/or illegal are being set all the time.
However, although the physical cartridges may be more-or-less legal to create, their contents are contentious for a number of reasons. Each videogame cartridge contains read only memory (commonly abbreviated to ROM) which is stored on a ROM chip and cannot be easily modified. The ROM chip contains all of the data of the game, including its executed code, graphics, and music. When someone wants to make a digital copy of a cartridge-based game — say, to play it on an emulator or to modify using computer applications — they have to create a ROM image first. This ROM image is a self-contained file that holds all of the data that is stored in a ROM chip, and is usually created using a physical device such as a ROM reader/dumper. However, there are so many ROMs circulating online, that it is very rare that a player or hacker would have to acquire a ROM using this method.
While hardware technology is protected by patents, a game’s content is protected by copyright law, which has a much longer term and a contentious history of enforcement. Copyright grants the original creator certain exclusive rights to their work, mainly reproduction and translation. This includes making copies, such as copying a ROM image to or from a videogame cartridge, and altering those copies, such as is done with videogame hacks.
Even if a patent on a physical game cartridge has expired, it is more than likely that copyright on its contents has not — copyright lasts the entire lifetime of a work’s original creator plus 50 years (in Canada) and 70 years (in the US). Additionally, many aspects of a game (such as logos and characters) are actually trademarks, which come with their own rules of use that I’m not going to get too deep into today.
Homebrews, Bootlegs, and Hack Reproductions
So let’s return to the three examples I mentioned before — homebrews, bootlegs, and videogame hack reproductions — through this legal lens.
With homebrews, most of the legal concerns are alleviated since the cartridge does not contain a copyrighted game — the game is an original work unassociated with past titles. However, this does not mean that homebrew is unambiguously legal. Alex, in her study of GameBoy modders, has noted that Nintendo uses a unique digital rights management system in some of their devices that requires the display of the Nintendo logo on start-up. Since the logo serves as a “lock-and-key” mechanism for the device, and is fully under Nintendo’s trademark, this creates a prickly situation in which some homebrew games may need to violate intellectual property law in order to function.
Unauthorized reproductions of commercial titles are much more straightforward — they are presumably illegal. Copying and selling a ROM image violates copyright law, and adopting Nintendo logos and imagery is a dubious use of licensed trademarks. In fact, stopping the circulation of ROM images is something that many media companies have pushed for in recent years, perhaps best exemplified through Nintendo’s 2018 legal action against the websites LoveROMs and LoveRetro. These websites hosted enormous collections of videogame ROM images online, but received a multi-million dollar lawsuit from Nintendo before having to shut down their servers.
Videogame hack reproductions are illegal for the same reasons that commercial bootlegs are. However, to add an additional moral wrinkle to these legal discussions, they also involve stealing the creative work of videogame hackers. In the case of HyperBound, no one ever asked me if they could take my game hack, put it on a cartridge, and then sell it — and I certainly don’t make royalties from the sales. Of course, I never asked Nintendo if I could make the hack in the first place either. Thus, these hacked reproductions are essentially “double bootlegs,” in which a hacker creates a modified version of a commercial title using a ROM image, and then a bootlegger packages that ROM image onto a cartridge and sells it without the hacker’s knowledge and certainly without giving them a cut of the profits.
The circulation of these morally and legally ambiguous goods is intriguing, as they are simultaneously ubiquitous and marginalized. On one hand, you can find almost any type of reproduction cartridge online using a quick Google search. On the other hand, it is very rare to see them for sale in official online storefronts (say, Amazon or Gamestop) or in brick-and-mortar stores.
I have found Ramon Lobato’s conception of shadow economies — which he defines as informal systems of commodity exchange — to be a useful framework to think about how reproduction cartridges are sold and distributed. Lobato is mainly concerned with the informal distribution of cinema, citing examples such as bootleg DVDs and direct-to-video mockbusters that mimic the aesthetics of blockbuster films. He argues that these shadow economies are not inherently legal or illegal, good or bad, commercial or independent — choosing instead to resist these reductionist moral and legal classifications. Instead, he poses that shadow economies share a set of tendencies that place them in opposition to established media production and distribution networks:
- Shadow economies disrupt standard media flows that rely on established release structures and regional boundaries.
- They produce goods with higher levels of textual variation than formal economies, and question common assumptions of what a media object should be.
Essentially, shadow economies defy tidy conceptions of power, legality, and movement in favour of the “messy, multi directional scurrying of large numbers of small-scale distributive agents.”
While reproduction cartridge economies are arguably illicit or immoral, they are undeniably informal — lacking the order and oversight usually mandated by media companies. Thus, while the legal arguments I’ve posed above are a useful starting point, they do not fully encapsulate how these markets function. In fact, it might be impossible to fully determine how media flows through these economies, as they lack the formal business documentation and structures often relied upon by political economy methods.
Discourses of Authenticity and Nostalgia
I’d like to switch gears a little bit for the last portion of my presentation. I have spoken a lot about the legality and morality of reproduction cartridges, but those aren’t the only factors that influence the existence of a media technology. One of the enduring questions that follows videogame reproduction cartridges is not related to the law, but, rather: “why are people paying for physical copies of games that they can download for free?”
Even after the shuttering of LoveROMS and LoveRetro, there are numerous websites that host enormous collections of videogame ROM images and the emulators required to play them. These resources are roughly on the same legal footing as the reproduction cartridges being sold elsewhere, and are certainly easier to access. Additionally, homebrew developers are free to distribute their games digitally rather than on cartridges, as they are just as playable through free emulators. Yet, so many of these ROMs seem to eventually get turned into physical goods. Why?
In his study of the retro videogame industry, John Vanderhoef contests these digital-centric discourses, recognizing that the creation of reproduction videogames and consoles is both market-driven and rooted in discourses of nostalgia and authenticity. He notes that one of the key motivations of NES homebrew developers is, in fact, the possibility of creating a physical game cartridge. In addition to generating revenue for the homebrew developer, homebrew reproductions fulfill a desire to “preserve or recreate the experiences of classic Nintendo games” and to make a personal contribution to a beloved videogame platform.
Vanderhoef also notes that this nostalgia is widely recognized and capitalized upon by both small and large media companies, who have taken advantage of social and cultural memory. Nintendo, for example, has been repackaging popular titles on its online platforms for decades, and their classic editions are a type of reproduction in their own right. Thus, the co-option of nostalgia becomes an effective marketing strategy for various industries, “repackaging it, and re-selling it to consumers, many of whom wish to reconnect with earlier periods in their gaming lives.”
Earlier, I posed that emulators as an alternative to physical reproductions. This is actually a really interesting site of conflict, as emulators and reproductions represent two different ideas of authenticity in relation to retro gaming.
Some of the most popular videogame emulators claim to provide the “most faithfully accurate emulation possible”, wielding terms such as “pixel perfect” and “100% accuracy” in their project descriptions. These notions of digital authenticity may oppose discourses of nostalgia that favour specific hardware assemblages, such as those that are common in the reproduction industry. Retron’s line of reproduction consoles, for example, feature the ability to output video to older CRT televisions and are compatible with original videogame controllers and peripherals. Emulators, in contrast, are somewhat device-neutral — and can be played on laptops, tablets, and even smartphones.
In his investigation into the development of the MAME emulator, David Murphy elaborates that — despite claims of code-based authenticity through accurate audio-visual reproduction — many would argue that emulators are bereft of the social context of play as well as the materiality of the devices they seek to represent. Their authenticity is achieved through a remediation, of sorts, that is open to a title being played on numerous devices. Software emulators and console reproductions can be thus viewed as the outcomes of two different, somewhat competing, discourse of authenticity, which favour different assemblages of hardware, software, and aesthetic.
Returning to HyperBound
Returning to HyperBound, such discussions of authenticity become a bit strange. Whereas reproductions of popular titles are essentially duplicates of original games, and homebrew development is often geared toward materiality from the onset, HyperBound (and many other videogame hacks) were never intended to be physical objects. Calling it a reproduction seems someone erroneous as it never really existed in physical form to begin with!
To conclude this presentation, I’d like to speculate a bit about the cartridge’s origins — something I will be further researching in the coming months. Although I can’t say for certain why HyperBound is being sold or why it took this particular form, I can, however, make some educated guesses.
- The eBay seller from whom I purchased the cartridge seems to have many different reproductions available, each of which feature similarly odd assemblages of labels and cartridge shells. This suggests that the various parts of the cartridges are interchangeable, perhaps hinting that they are made in small batches (or even on-demand).
- After a bit of online research, I discovered that someone had uploaded HyperBound to ROMhacking.net in 2014, and that it had received a couple thousand downloads since then. Since ROMHacking.net is a public archive, I wonder if bootleggers simply searched the website for ROM images that had gained a bit of traffic. This might actually be verifiable by dumping the ROM image from the bootleg version to see if it has any metadata that identifies its origins.
- Finally, the shipping address indicates that the cartridge was assembled in Beijing, China — which is of course home to one of the world’s biggest videogame gray markets. I can’t begin to speak to the dynamics of that market at this time, but it is interesting to consider that it appears to be more viable to create these reproduction cartridges on the other side of the world and ship them, rather than making them here in North America. This may be due to intellectual property law, production and labour costs, or some other factor that I have yet to determine.
These all prove to be intriguing starting points for further investigation. As I move forward with my dissertation, I will be looking for specific ways to study media technologies such as these — videogame objects that embody legal tensions, moral debates, and discourses of authenticity and nostalgia.
Earlier, I mentioned that I thought that this HyperBound bootleg was weird. Perhaps more accurately, I can say that although it may appear unusual, it is actually emblematic of a number of relatively common creative, commercial, and potentially illicit activities. It just isn’t until these activities materialize as a discrete object that we get a chance to directly confront them.