The Video Game History Foundation (VGHF) has expressed its disappointment over the US Copyright Office's refusal to grant a new Digital Millennium Copyright Act (DMCA) exemption that would have supported video game preservation efforts. The proposed change aimed to allow libraries and archives to remotely share access to "out of print" games in their collections, but faced significant pushback from industry groups like the Entertainment Software Association (ESA).

Unlocking the Vault: The Struggle for Accessible Game Preservation

Roadblocks to Remote Access

The VGHF, working alongside the Software Preservation Network, had petitioned for a DMCA regulation change that would enable libraries and archives to break copy protection on games in order to make them remotely accessible to researchers. However, the current anti-circumvention rules in Section 1201 of the DMCA have prevented these institutions from doing so, effectively locking away a vast majority of out-of-print video games.

The ESA argued that the proposed controls over who would be allowed to access the exempted software, and for what reason, were unclear. They claimed that a "human review" requirement was "at best incomplete," and that by not including more specific requirements in the proposal, supporters of the exemption were "trying to reserve almost complete discretion in how they would provide access to preserve[d] games."

The ESA also asserted that "there remains a substantial market for classic games," and that allowing "widespread remote access to preserved games with minimal supervision would present a serious risk to an important market." This stance, which the ESA's own members have declined to publicly support, has forced researchers to explore "extra-legal methods" to access the majority of out-of-print video games that are otherwise unavailable.

The Copyright Office's Ruling

In the end, Shira Perlmutter, the register of copyrights and director of the US Copyright Office, was not swayed by the arguments in favor of game preservation. The ruling stated that proponents of video game preservation "have not satisfied their burden to demonstrate that the requested uses are or are likely to be noninfringing."

The Copyright Office also found that the proponents "have not met their burden of showing that reproducing works to allow for multiple simultaneous use in the computer program class is likely to be fair," and that they "have not met their burden of showing that the proposed off-premises uses in the video game class are likely to be fair."

A Glimmer of Hope

Despite the setback, the VGHF remains undeterred, stating that it is "not done fighting." The organization will continue its advocacy for greater access and legal allowances for video game preservation, and work with members of the game industry to increase internal awareness around these issues.

There may be a glimmer of hope for the future, as DMCA exemption rules are updated every three years. The ruling has recommended "clarifying the single copy restriction language" in proposed rule changes, which "will address the perceived ambiguity in the current exemption, while serving the single-user limitation's intended purpose to minimize the risk of substitutional uses of preserved computer programs."

The Urgency of Preservation

The need for video game preservation is growing increasingly urgent. According to a 2023 study by the VGHF, 87% of video games are "critically endangered," meaning they're effectively inaccessible without either piracy or travelling to an authorized archive and playing them on site.

This alarming statistic underscores the importance of finding a solution that balances the interests of copyright holders and the preservation of gaming's rich history. As the battle for digital accessibility continues, the VGHF and its allies remain committed to ensuring that the vast majority of out-of-print video games are not lost to time.