Most of the world’s video games from almost 50 years of history are effectively legally dead. A Research by the Video Games History Foundation has shown that it is almost impossible to buy legally 90% of the games pre-2010. Conservationists have been looking for ways to give people legal access to gaming history, but the U.S. Copyright Office dealt them a major blow on Friday. The FBI has stated that you or any researcher are not entitled to access old games under the Digital Millennium Copyright Act or DMCA.
Groups like the VGHF and the Software Preservation Network have expressed support for an exception to the DMCA surrounding video game access. The law says that without a license you cannot access old, defunct games that are still under copyright, even if they are not for sale. Current rules in the DMCA limit libraries and repositories of old games to one person at a time, in person.
The foundation’s proposed exemption would have allowed more than one person at a time to access content stored in museums, archives and libraries. This gives players access to a piece of video game history, just as they would if they were checking out an ebook from a library. The VGHF and the SPN stated that if the museum has multiple copies of a game, it should be able to give as many people access to the game as possible if copies are available.
At the Copyright Office decision dated October 18 (found on page 30), director Shira Perlmutter reached an agreement with multiple industry groups, including the Entertainment Software Association. She recommended that the Library of Congress maintain the same restrictions. Section 1201 of the DMCA restricts “unauthorized” access to copyrighted works, including games. However, it allows the Library of Congress to allow certain classes of people to bypass these restrictions.
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— Video Game History Foundation (@GameHistoryOrg) October 25, 2024
In a statement, the VGHF said lobbying efforts by rights holders “continue to hold back progress.” The group pointed to comments made by an ESA representative. A lawyer for the ESA told Ars Technica: “I don’t think there are currently any combinations of restrictions that would support ESA members to provide remote access.”
Video game curators said these game repositories can display full-screen pop-ups with copyright notices to anyone who has checked out a game. They would also limit access to a time limit or force users to access through “technological controls,” such as a purpose-built distribution of streaming platforms.
Industry groups argued that these museums did not have “appropriate security measures” in place to prevent users from distributing the games once they got their hands on them. They also argued that there is a “substantial market” for older or classic games, and that a new, free library to access games would “endanger” this market. Perlmutter agreed with the industry groups.
“While the Register appreciates that advocates have proposed broad safeguards that could discourage recreational use of video games in some cases, it believes that such requirements are not specific enough to conclude that they would prevent market harm,” she wrote.
Do Libraries Lending Out Books Hurt the Literary Industry? In many cases, publishers see libraries as free advertising for their products. Word of mouth is created, and since libraries only have a limited number of copies, those who want a book to last longer are incentivized to buy one. The video game industry is so effective at shooting itself in the foot that it doesn’t even notice that third-party conservationists are actively about to help them, without any cost on the part of the publishers.
If there is such a substantial market for classic games, why are so many still off-purchase? Players will inevitably turn to piracy or emulation if there isn’t an easily accessible way to play older games.
“The absolutist position of the gaming industry… forces researchers to explore extralegal methods to access the vast majority of out-of-print video games that would otherwise be unavailable,” the VGHF wrote.
