Why ROM Hacks Never Get Shut Down

As you probably know by now, there have been plenty of fan projects shut down by companies like Nintendo. AM2R, Pokemon Uranium, Super Mario 64 HD… it’s almost a badge of honour by this point. It’s like your project got so big even the original company couldn’t ignore its existence much longer!

But do you know what never gets taken down?

ROM hacks. Mods of existing games like Super Mario World on the SNES or Super Mario 64 on the N64. In all the years, they’ve been posted online, not one of these games has been taken down by an IP owner.

Like this one:

But how is this possible? How about ROM hacks being ignored while certain fan games are being taken down? What makes ROMs safer than fan games on a legal basis?

Well, it all comes down to one simple thing. The patch system.

Basically, ROM hacks are never distributed as ROM files. At least, outside of the few examples where creators got cocky anyway. Instead, they’re released in the form of patches.

What’s a patch? Well think of it like this:

It’s a series of differences between the original work and the edit.

In other words, imagine buying a book from a shop. Like Harry Potter or Lord of the Rings.

Now let’s say someone else wanted to make their own remake or sequel. Say, with Harry as a female.

However, distributing a bunch of copies with these changes already made would likely get them sued. Or at least, send a cease and desist order. After all, they don’t own Harry Potter or whatever other novel they might be editing.

So to get round this, they instead send out a list of changes to make. Like say, change the word ‘Harry’ on line 73 of page 16 to ‘Jane’, then change the pronoun in the next sentence from ‘he’ to ‘she’.

That’s how patches work. Except you know, there are thousands of major changes rather than a single small one.

And in theory, that’s why they’re not a legal issue. Because the only things being distributed in the patch are the changes made by the author rather than the original work it’s based on. Someone trying to sue over one would have to somehow prove that a series of instructions on what to change in a work is a derivative work in of itself. Which at least on the face of it, is completely absurd. It’s like say, Ford getting angry when someone writes down an article about how you can mod a car you bought from them to look completely different.

The same sort of argument could probably also be applied for ROM hack music too. Why? Because you’re not getting MP3, WAV or OGG files (or anything that plays back sound directly), but a series of instructions to the soundchip on how to create music that sounds a certain way. That’s why music on SMW Central comes in the form of text files, since it’s meant to be used with a program called AddMusic rather than listened to directly.

Either way, that’s not the only positive the patch concept has going for it here. One of the other things a lot of complaints about copyright infringement usually rest on are losses caused by a derivative work. Aka, the effect of the use upon the potential market.

And this is where ROM hackers (in theory) have another defence; their work doesn’t cause the company to lose money, because the user has to own a copy of the original work to play the mod. As a result, something like Brutal Mario had no effect on Super Mario World’s sales, because in theory someone would have had to buy Super Mario World to play Brutal Mario.

Heck, some might argue it could theoretically raise sales of the original game by getting people who merely wanted to play the hack to buy it in order to do so.

Of course, there are various arguments you can make against that interpretation, but that’s the subject of a different article.

There’s also the question of whether a complex enough patch could contain copyrighted material in of itself, which might be a potential issue with those full game overhauls/crossover titles. But the point is that in a patch, the amount of copyrighted material is far lower than in a full ROM file or independent fan game.

But hey, that’s the gist of it. They don’t get shut down by companies like Nintendo because they’re distributed as patches rather than full games.

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