Game emulator Delta has now been downloaded through the App Store 7m times in two weeks, according to Appmagic estimates. But could Nintendo get it removed from the iOS store? And if so, why hasn’t it done so already?
After we published our original report on Delta’s chart-topping success, many readers speculated that it would be removed from sale in a matter of weeks. But at the time of writing, it’s still available worldwide and is racking up around 300k installs per day.
So we asked Kristen Evans, an interactive entertainment associate at games law firm Sheridans, to explain why it hasn’t been removed (yet). “Just because Nintendo hasn’t taken action yet does not prevent it from doing so in the future,” Evans told us.
“The law around emulators is a grey area with different defences depending on differing circumstances and jurisdictions. If Nintendo do decide to take action, as with the removal of the Yuzu emulator in March, their legal team would likely want to examine all possible avenues to find the best argument.”
The crux of it is that Delta is not directly providing access to ROMs, so the liability is on the distributor of the ROMs and not the maker of the emulator itself. “It is legal in many countries for a person to import the game files to an emulator from a game they already own for personal use, for instance,” says Evans. “The distributors of ROMs, however, are likely to be infringing copyright and may present a more obvious target.”
But what about Apple? By approving this software for release on its store and distributing it globally, could Nintendo potentially take action against the tech giant? “Simply put, at present, Apple does not appear to be acting outside of expected and legal parameters,” says Evans.
If a complaint is made against Apple for distributing the software, though, Apple may decide to remove Delta while the lawsuit plays out, says Evans. “In its policy change, Apple have made it clear that the app developer is responsible for any software – including games – that the emulator can download, and that it must comply with ‘all applicable laws’.”
A “safe harbour provision” in eCommerce law limits the liabilities of intermediary service providers like Apple and Delta, “so long as appropriate steps are taken to remove illegal content when it is discovered,” says Evans.
In US law, Apple could potentially be liable to damages based on “wilful blindness to permitting copyright infringement,” says Evans, but “a high threshold is required for this liability and may not be applicable here in the circumstances.”
When asked for comment on this report, Apple directed us to its App Review guidelines, which appears to allow the ‘sideloading’ of ROMs in this clause: “Apps may offer certain software that is not embedded in the binary, specifically HTML5 mini apps and mini games, streaming games, chatbots, and plug-ins.”
The App Review guidelines also clearly place the responsibility for app content on the developer. A Nintendo rep told us they have requested a comment from HQ on this matter, and will send one through if or when they get a response. We will update this story if or when that comes through.
Delta shot to the top of the App Store charts when it was released on April 18, having been released officially after Apple changed its App Review guidelines to allow “retro game console emulator apps”.
The tech giant has not explained why it made this change, but it is widely believed to be a move to stem the flow of customers to alternative app stores, which could sell emulators outside of Apple’s walled garden. Apple has been forced to allow these alternative marketplaces to satisfy regulation like the EU’s Digital Markets Act.
Delta allows players to play ROMs, game files that can be found with a quick Google search. Delta’s release on the App Store effectively means players can download practically any old Nintendo game for free and play it on their iPhone. Delta supports the emulation of NES, SNES, N64, Game Boy, Game Boy Advance and Nintendo DS ROMs.
Similar emulators have been available on the Google Play store for years, though they are often pulled down for copyright infringement or other violations of Google policy.
