FWIW licensing is definitely part of why some 'obvious' stuff is still missing, Nintendo doesn't own the rights to games that they didn't develop themselves (generally speaking).
Ex. We'll probably never see the first six FF games on Switch Online, Square Enix is just unlikely to agree to that for a variety of reasons.
Which is rather surprising to me. I don't know what the contracts between Nintendo and developers say but I would have expected "rights to publish or distribute in perpetuity" would have been in there as part of the deal for making official carts.
That's probably true for later generations, but in the NES (and maybe SNES) era? Undoubtedly, they didn't have the foresight to write that into the contracts.
In the early days of television, many broadcasters were prohibited by contract to retain any copies of the performance, because no value was seen in reusing them, and there's no other reason to give them any rights. Also see shows like WKRP in Cincinnati where music was only licensed for the slim purpose of the original broadcast (and perhaps direct repeats in syndication), but for release on home video, the music used did not support that use, so it had to be replaced.
Nintendo already tried this kind of power grab, more or less, and it failed.
The NES didn't have software lockout in Japan. Most third-party Famicom[0] games were manufactured and sold by their publishers, with little or no control from Nintendo. Nintendo's way to wrestle back control over their platform was the Famicom Disk System, a disk drive add-on that was intended to work around the NES's 32k ROM limit (and associated costs of ROM) with cheaper disks that could hold up to 64k of loadable data per side.
The key was that the FDS had two lockout features that Famicom cartridges didn't:
- FDS disks had an imprint of the Nintendo logo at the bottom that meshed with plates in the disk drive. If your disk did not say Nintendo on it, it would not mount in the drive and the game would not play.
- FDS disks were rewritable, and Nintendo planned to sell games at special vending machines that would write you a fresh disk. If you weren't selling your game through Nintendo, your game wouldn't be on these vending machines.
So if you wanted your game on FDS, you needed to sign a distribution agreement with Nintendo. I'm told the terms were rather draconian. Most developers just... put larger ROMs and better enhancement chips on their third-party Famicom cartridges. This continued until someone figured out how to copy FDS games using just the RAM adapter carts and Nintendo gave up on the FDS concept entirely.
To be clear, Nintendo did have software lockout in the US, and you did have to license your game to Nintendo and have them sell copies of it using their hardware. This caused a lot of problems for NES releases of Famicom games that had custom chips in them (e.g. Contra). But even then, these were not perpetual licenses.
A perpetuality requirement would have killed any and all licensed games stone dead. If you're making a movie tie-in cash grab game on NES, you don't want to have to license that movie in perpetuity just because Nintendo demands a perpetual sublicense for a game with an expected shelf-life of about a year. Hell, not even Nintendo licensed Mike Tyson for Punch-Out perpetually.
> I would have expected "rights to publish or distribute in perpetuity"
I think that would have been unlikely to occur to Nintendo's lawyers, since in the NES era, publishers required the developer's co-operation to provide masters targeting any additional platforms. This was before intergenerational emulation and internet distribution became widespread, and Nintendo would have had a sunset date for NES title sales.
Ex. We'll probably never see the first six FF games on Switch Online, Square Enix is just unlikely to agree to that for a variety of reasons.