North American fans of Nintendo's Super NES RPG masterpiece EarthBound are used to disappointment. After all, we're talking about a beloved game that sold poorly when it was released, lost its 3D Nintendo 64DD incarnation to development hell, and missed out on official releases of both its ready-to-go prequel and unlocalized sequel (not to mention the portable compilation collection). In fact, for an EarthBound fan it seems that there's only one last ray of sunshine to anticipate: the original game's release for the Wii's Virtual Console. The game was rated by the ESRB nearly two years ago, so the release must be imminent, right? Wrong. Keepers of the EarthBound flame over at the reliable Starman.net have the final nail in the coffin for us.
[P]retty much everyone has believed that it's just a matter of time before [EarthBound] is released on the [Virtual Console]. Unfortunately that's not true, as we found out a little later that summer. We've had to sit on the information until now, but the time and circumstances are finally right to let the cat out of the bag: The VC rating was a mistake.
Not like "ugh we never should have done the ESRB rating early, all these annoying fans are all worked up", but more along the lines of "Uhhh, why was EarthBound rated? I thought the guys over in legal told us to forget about it?" From what we've learned, Nintendo never intended to send EarthBound up the flagpole; it seems to have been some kind of internal mistake on behalf of the ESRB. By the time both parties ([Nintendo of America] and the ESRB) realized what had happened, it was presumably not worth the effort to 'fix'. NoA didn't have to pay for it, and the ESRB didn't have to go to the trouble of backpedaling. And besides, as far as the ESRB knew, the game would be released eventually anyway... right?
EB was, and will continue to be, withheld due to legal issues. It doesn't matter what anyone's opinions are on copyright law or fair use; the fact is that Nintendo's lawyers have a huge amount of leverage over the release of any game they're uncomfortable with, and EarthBound made them pretty uncomfortable. As long as [Nintendo Company Limited] remains unwilling to approve changes to the game, EarthBound will stay buried.
If there's enough sampled material in the game to make the lawyers skittish, then why was the game released in North America at all back in 1995? It amazes me that a franchise that has suffered so many setbacks outside of Japan continues to have such a devoted international fan base. Those of us who have explored the world of EarthBound know that the game is something special. We'll always have our memories and our original game paks, at least. Nervous lawyers can't take those away from us.