The US Copyright Office announced today that they would not grant a new exemption in the Digital Millennium Copyright Act (DMCA) in support of video game preservation. (see p.29)
For the past three years, the Video Game History Foundation has been supporting with the Software Preservation Network (SPN) on a petition to allow libraries and archives to remotely share digital access to out-of-print video games in their collections. Under the current anti-circumvention rules in Section 1201 of the DMCA, libraries and archives are unable to break copy protection on games in order to make them remotely accessible to researchers.
While we are disappointed by the Copyright Office’s decision (see p. 191 of the Register’s Recommendation), we have no regrets about going through this process. Over the last three years, working on the petition has helped us generate important research, notably our Survey of the Video Game Reissue Market in the United States report, which proved that around 87 percent of video games released in the United States before 2010 remain out of print. Our combined efforts with SPN have raised significant public awareness of these issues and have already made an impact throughout the game industry and preservation communities.
Unfortunately, lobbying efforts by rightsholder groups continue to hold back progress. During our hearing with the Copyright Office, the Entertainment Software Association (ESA) declared that they would never support remote game access for research purposes under any conditions. The game industry’s absolutist position—which the ESA’s own members have declined to go on the record to support—forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable.
We’re not done fighting here. We will continue our advocacy for greater access and legal allowances for video game preservation and working with members of the game industry to increase internal awareness around these issues.
We encourage members of the game industry who are disappointed by the Copyright Office’s decision to ask their leadership to push for greater support for the work of libraries and archives within their industry groups.