The recent news about Earthbound never coming to the Virtual Console because of legal reasons has struck up a chorus of “But--” and “How come--”. People are understandably upset that Ness's adventure is going to remain in eBay Hell forever, and they want solid answers about why this wretched thing is happening.
There still aren't any solid answers, but the good man in charge of Mother 3's recent fan translation, Tomato, has put together an incredibly in-depth list of reasons why Nintendo is erring on the side of caution. Put in simplest terms, the Internet has made it easier than ever to conjure reasons for an IP lawsuit, and Nintendo already has numerous lawsuits hanging off it at any one time like parasitic fish on the belly of a whale. Even a company like Capcom likely doesn't see half the number of lawsuits Nintendo does, thus explaining why it shrugged off the release of Mega Man and Mega Man 2 on the Virtual Console, despite numerous musical “tributes” in both games.
As Tomato put it:
To avoid crap lawsuits, Nintendo has a team of legal people who have to go through everything Nintendo plans to release and look for anything that can cause potential lawsuits. Then these things are fixed if necessary.
The point is: they’re trying to avoid lawsuits in the first place. It doesn’t matter if they could clearly successfully win lawsuits brought against them; they’d still lose money in the process. Having this team of legal people is cheaper than putting up with every lawsuit that every crazy money-hungry company hits them with.
Remember Star Tropics, an 8-bit RPG by Nintendo? When we were kids, Mike pelted his enemies with a Yo-Yo. On the Virtual Console, his Yo-Yo became a “Star” because some Canadian company owns the rights to the Yo-Yo name. Likely said Canadians are too busy drinking and racing moose to care about an old Nintendo game, but Nintendo figures, why take the risk?
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