Downloading roms is certainly not illegal, sharing them is. From my experience most older Nintendo games are not available for purchase. I would gladly pay to play classic Pokémon for example games on the switch (or on Steam).

And nintendo will later rerelease those classic pokémon games in some form and rake in money off people like you (and me). Waiting is part of their market strategy. The NES and SNES classic editions sold out quickly iirc; when the time is right, a gameboy classic might do the same.

Whatever the merits of your sugggestion, verifying that a company was "actually and actively be trying to make money" would be wide open to abuse and practically speaking, impossible.

Why? Make copyright something you register and pay for and companies making no money from them would simply stop paying.

This but apply to all property. Unused lots of land will be a liability. Empty houses should be onerously expensive.

But if someone takes your land, you lose it. If someone looks at a bootleg photo of your land you still have your land, if you ever choose to monetize it again.

What is the video game equivalent of a bootleg photo of land? A bootleg video trailer?

They’re called property taxes.

empty houses in the middle of nowhere dont bother anyone.

Seems unlikely that it’s a particularly hard problem to solve, given that trademark law works in a similar way, where if you stop actively using the mark in the market, you can lose it.

This could be easily solved, if the burden of proof was on the company itself... when they report/sue you for copyright infringement, they'd just have to prove, that it's reasonably simple for the person to obtain the material legally (so, is there a (eg nintendo) distributer in the country of the accused, is there a store that sells those games there, is it possible to buy it online, etc.). If there are no reasonable legal ways to obtain the material, then you cannot claim lost profit and the "pirate" cannot get fined/sued for infringement.

Simpler still, collect property taxes on copyright. Companies aren't going to pay money just to sit on something that doesn't earn more money.

That simply ruins the copyright system for everyone that isn't making money. Which is pretty bad given that copyright is also what stops people from say, simply stealing someone's art drawn and shared as a hobby or even drawn and shared as part of a portfolio (and thus indirectly being a potential source of profit for them).

I always think about this with the Black and White series. You can't download it anywhere. EA has it listed on their website but its basically just marketing material which is bit of a tease.

The entry on the GOG.com wishlist has 36K+ upvotes with a new comment posted every week or so. Seems like low hanging fruit for someone at EA to make a quick buck.

https://www.gog.com/wishlist/games/black_white_2

You can blame the copyright, trademark and possibly patent if it's not that old for that.

The problem is, a game is not owned by single entity. There were multiple persons and organizations own the game.

Some persons are now deceased, some organizations are now bankrupted.

It's almost impossible to find all entities who own the rights, negotiate the share. It costs more than the potential profit of the old games.

What we need is a copyright exemption law(or recognized as a fair use if you're living in US common law system) which allows unlimited use of copyrighted works(including commercial use) if the copy of the work cannot be obtained from the author.

Some may argues that they want the right to not distributed, but the very reason copyright exist is to give temporally exclusive rights the the author for... you know what? distribution. If the author don't want to distribute their works, it's shall not be copyright protected in the first place.

Nintendo makes a lot of money rereleasing games. You might not be able to buy an n64 or a copy of mario 64 new anymore, because they aren't manufactured anymore. But people will pay for a rerelease of mario 64 on the wii or switch, possibly highly (a bundle of 3 rereleased "unavailable"mario games was going for $50-$60 new on switch recently).

Also the games aren't 100% unavailable, they're perfectly available on their original platforms on the secondary market if you want one badly.

> but if you copy/download that rom, you can get fined due to fictional losses for the copyright holder. What losses? If you're not selling the game anymore, how can you have losses from it?

That is because there are statutory damages to copyright violations. By definition, any violation causes a fixed amount of damage.

This seems like a solution, but who judges what "availability" is? If Nintendo say they'll reproduce any NES cart you want anywhere in the world for the low low cost of a hundred thousand dollars per unit, and all requests must be made in writing, please allow 6-8 weeks for delivery, is that "available"?