Last month, Nintendo discontinued the online functionality of games on its Wii and DS platforms. Gamers mourned the loss of online gameplay and leaderboards for popular titles such as Mario Kart Wii and Super Smash Brothers Brawl. It has been rumored that this change was predicated by new ownership of GameSpy, the company which hosted Nintendo’s game servers. It is also possible that Nintendo ended online service on the Wii and DS to incentivize gamers to adopt its Wii U platform. Whatever the reason for Nintendo pulling the plug, gamers are not taking the news lying down. Many have begun taking matters into their own hands by hosting private servers for their favorite Wii and DS games.
Until last month’s shutdown, Nintendo and Gamespy maintained the servers which supported the Wii and DS online game libraries. Now, by utilizing console mods and updated firmware, gamers can patch in to an unsanctioned private server and continue playing their favorite games with one another. This is, of course, certain to be in violation of Nintendo’s end user license agreements and terms of service for both its game hardware and software. At the time of this writing, it seems the servers are free to use and no one has tried to monetize a private server for personal financial gain. Nintendo declined to comment on its course of action when contacted by Loading Law.
The greatest threat of private servers is a loss of control over intellectual property rights and unfair market competition. To combat that threat, networks for online console gaming have traditionally been highly regulated. Such regulation is possible since hardware and software are so uniformly streamlined and licensed in the console market. Online gaming in the PC sector, on the other hand, is much more difficult to regulate due to a myriad of hardware platforms and software titles. Understandably, PC gaming has a much longer history of private severs springing up after a game enters planned obsolescence. It also has been the source of most of the legal precedent relevant to private servers.
The seminal case on private servers is Davidson & Associates v. Jung. In that case, Blizzard and its parent company Vivendi brought suit against a group of programmers who were hosting private servers for the popular Diablo and StarCraft game franchises. The trial court’s grant of summary judgment in favor of Blizzard/Vivendi was affirmed by the 8th Circuit Court of Appeals. It was determined that federal copyright law did not preempt the games’ end user license agreement and terms of service. The Court also held that the defendants violated the DMCA’s anti-circumvention and anti-trafficking provisions.
What this means for Nintendo is that the law is in its corner if it decides to go after the operators of private Wii and DS servers. It is unclear how Nintendo will react, however. The Wii became a favorite of the modding and hacking community early in its lifespan so these kinds of infractions are not unusual. Nintendo responded to these infractions with new hardware and firmware updates, but little in the way of litigation. Instigating litigation against your fan base is not good for sales, and Nintendo has been in the red for several quarters now.
But what do you do when your fans want to keep playing your games online after you’ve pulled the plug? Microsoft met a similar issue when it discontinued its original Xbox Live service and Halo 2 fans refused to quit playing. Microsoft’s solution was to migrate its gamers over to its new Live service on the Xbox 360 and re-release Halo titles on that platform. This strategy has been met with substantial success. Unfortunately Nintendo has not been so lucky with the Wii U, but with Mario Kart 8 being released last week to great success and a new Super Smash Brothers game expected to debut at E3 this summer, maybe this issue will work itself out soon. Nothing lasts forever, and it may be time to move on and look to the future.