Games Preservation Hit Hard By U.S. Copyright Office

Recently, the U.S. Copyright Office announced that the Digital Millennium Copyright Act (DMCA) will not provide exemptions for the preservation of video games. This decision highlights the challenges in enabling enthusiasts to experience classic games that are no longer readily accessible.

The Software Preservation Network, along with the Video Game History Foundation, had submitted a petition aimed at broadening DMCA exemptions for software like video games. Their goal was to facilitate remote access to these games for research and educational purposes, which could be hindered by current DMCA provisions.

While both the U.S. Copyright Office and the Library of Congress have previously emphasized the significance of preserving video games, the Copyright Office expressed concerns that the proposed guidelines might still pose a risk to the market. This ongoing apprehension does little to alleviate the issues retro game enthusiasts face, including copyright strikes and takedowns.

“While the Register recognizes the broad safeguards that proponents have introduced to potentially limit recreational use, she believes these measures lack specificity and cannot assure that market harms would be avoided,” the ruling states. Other aspects of the decision pointed to inconsistencies in the documentation provided and the witnesses’ accounts, as well as the influence of recent remasters and re-releases that help bring older games to new audiences.

In a statement released on Friday, Phil Salvador, the library director of the Video Game History Foundation, expressed disappointment with the ruling. He noted that their efforts, along with those of similar organizations, had been impeded by lobbying from groups like the Entertainment Software Association (ESA).

“Unfortunately, persistent lobbying by rights-holder groups is obstructing progress. During our discussions with the Copyright Office, the [ESA] stated emphatically that they would oppose remote access to games for research indefinitely,” Salvador remarked. “This extreme position in the gaming industry forces researchers to consider illegal alternatives for accessing a majority of out-of-print titles that are otherwise unavailable.”

A report released last year by the foundation indicated that 87% of classic games that should normally be accessible, especially those on obsolete or inactive platforms, are effectively unplayable through standard means. Furthermore, the closure of the Wii U and 3DS eShops and the Xbox 360 marketplace in 2023 has worsened the situation, increasing the number of games categorized as “critically endangered.”