Video game historians face significant obstacles in accessing older titles, often having to travel long distances to reach the few institutions that house them. Recently, the U.S. Copyright Office dealt a blow to preservation efforts by rejecting a proposal that would allow libraries, archives, and museums to offer remote access to digital copies of games that are no longer available for purchase. This ruling limits researchers’ ability to engage with nearly five decades of gaming history, confining their access to physical visits and complicating preservation initiatives.
According to a study by the Video Game History Foundation, around 90% of games released before 2010 are no longer available in the commercial market. This raises serious concerns about the preservation of this digital heritage. The Copyright Office stated that individuals and researchers lack the right to access these older games remotely, citing the restrictions under the Digital Millennium Copyright Act (DMCA).
Modest Request for Change
Kendra Albert, an attorney representing the Software Preservation Network and the Library Copyright Alliance, emphasized that the preservationists’ request was modest. They sought an exemption akin to existing models used for other library collections, where access is granted after thorough review to ensure alignment with preservation goals. The aim was to create controlled, temporary remote access to video games without infringing on copyright laws.
Despite these arguments, the Copyright Office did not budge, refusing to treat video games similarly to other digital media. Current laws allow libraries to lend out different types of media remotely, as long as they don’t lend more copies than they own. However, video games remain an exception. “It’s frustrating that this widely accepted process isn’t deemed adequate for video games,” Albert commented, highlighting the unique challenges faced by preservationists.
Concerns About Remote Access
The Entertainment Software Association (ESA), representing major game publishers, strongly opposed the proposed exemption. They argued that allowing remote access could lead to abuse, enabling individuals to play games for free and undermining the market for classic titles. ESA representatives expressed concerns that such access would reduce the demand for re-releases and remastered versions.
Conversely, preservation advocates contended that most older games are seldom re-released, and when they are, they often undergo significant changes that diminish their historical value. Nevertheless, the Library of Congress found that the arguments for remote access fell short, particularly in addressing concerns about potential market harm.
Reaction to the Ruling
The Copyright Office’s ruling asserted that allowing off-premises access to preserved video games could negatively impact the market for legacy titles. Preservationists contested this viewpoint, arguing that limited remote access would not harm market demand. Albert expressed disappointment over the ruling, suggesting that it ignored testimonies from some publishers who believed that such access would not affect sales.
While the exemption would have been temporary, requiring renewal every three years, the Copyright Office did renew the existing exemption allowing in-person access for institutions. Ironically, they also approved an exemption to legally repair malfunctioning McDonald’s ice cream machines, highlighting the discrepancy in regulatory priorities.
Proposed Exemption Details
The proposed exemption aimed to facilitate the preservation and sharing of games in libraries, archives, or museums under strict conditions. It would cover only those games that do not require an external server for gameplay and are no longer commercially available. Institutions would need to impose access restrictions to ensure that remote users engaged in private study or research, including confirming their intentions and notifying them of copyright regulations.
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