Recently, the U.S. Copyright Office has denied the request for an exemption in the Digital Millennium Copyright Act (DMCA) that would allow libraries and archives to digitally share out-of-print video games for research and preservation purposes. This decision has dealt a serious blow to the efforts of organizations such as the Video Game History Foundation (VGHF) and the Software Preservation Network (SPN), who had been advocating for this cause for three years. The proposed exemption sought to allow these institutions to legally break copyright protections to make video games that are no longer on the market accessible remotely. However, the Copyright Office, in its ruling, indicated that fair use standards would not be met, especially with regard to multiple reproduction for simultaneous access.
Why do they reject the idea?
The main opponent to this initiative was the Entertainment Software Association (ESA), a body representing major video game publishers. In its submissions, the ESA argued that allowing wider access to preserved video games would pose a significant risk to the market for classic titles, including those that can still be found in re-releases or licensed versions. For the ESA, the VGHF proposal did not contain adequate safeguards to prevent recreational use outside of strictly educational or research purposes.
This rejection is part of a long-standing industry stance against changing copyright laws to facilitate the preservation of video games. The ESA was already vocal in its opposition to attempts to amend the DMCA to allow the preservation of abandoned multiplayer games in 2018.
The concern of preservationists
The VGHF expressed in its statement that it does not regret having fought for this cause, despite the adverse ruling. During these three years, its collaboration with the SPN has brought to light important data, such as its report on the video game re-release market in the US, which revealed that the 87% of games released before 2010 are out of printThis alarming percentage puts many titles at risk of disappearing forever, leaving them in what the VGHF calls a state of “critical danger.”
In addition, preservation organizations have highlighted that without changes in legislation, the options for legally accessing these titles are very limited, which could force researchers and academics to resort to extra-legal methods to continue their studies. According to the VGHF, the industry's closed stance is imposing insurmountable barriers to digital preservation efforts.
Impact on access to classic video games
Video game preservation is a topic that has long concerned experts both inside and outside the US. However, under current regulations, access to out-of-print titles is restricted to research in the physical locations of libraries and archives, where only one user is allowed to consult them at a time. This greatly hinders the work of historians and academics, who depend on digital availability to advance their research.
The Copyright Office report also noted that the VGHF proposal lacked clear requirements regarding who would be authorized users to access these games and for what purposes. Given this lack of clarity, the Office decided not to expand the DMCA exemptions.
A problem that affects not only the US.
The issue of video game preservation is not unique to the United States. Across the world, many titles from before the digital age remain out of reach for fans and researchers alike. The lack of physical media and the rapid advancement of technological platforms have left much of video game history in limbo.
According to ESAThere is still a “substantial” market for these classic games, which is why they oppose any legislation that would allow wider access without extensive control. They believe that granting these exemptions could hurt sales of re-released or compilation versions of older titles, which would represent a threat to the revenue generated by this content.
VGHF: an uncertain but persevering future
Despite the legal defeat, the VGHF The organization said its efforts do not end here. In its statement, the organization said it will continue to work to raise awareness in the industry and the public about the importance of video game preservation. It also urged video game industry professionals to pressure their leaders to support preservation initiatives in negotiations within their groups.
For their part, companies such as Xbox have begun to take steps in this direction. Recently, the company announced the creation of a team specializing in video game preservation and future compatibility, demonstrating that some industry players are beginning to see the importance of these efforts.
The inevitable comparison with piracy
Obviously, the main problem that the industry projects on this subject is the high possibility of increasing the consumption of piracy, since by digitizing the titles and offering the possibility of accessing them in a completely free way, it opens a range of possibilities that go from personal consumption to the commercialization of ROMs. Companies like Nintendo continue to squeeze their IPs and their old catalogs as is the case of the Nintendo Switch Online Expansion Packs, which allow you to play a catalogue of NES, Super NES, Nintendo 64, GameBoy Advance and even Mega Drive games, so these free libraries would reduce the interest in their products. Who is right?