Phil Salvador and Kendra Albert, a partner at Albert Sellars LLP, digest, discuss, and dissect the 2024 DMCA exemption petition to make it easier for libraries and archives to preserve video games and the subsequent ruling by the US Copyright Office. Join us for an insightful look at the recent ruling, legal implications, and what it all means for the future of video game copyright and digital access.
*This episode has a follow-up bonus episode available to our paid tier Patreon members.
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Bluesky: @kendraserra.bsky.social
Mastodon: @kendraserra@dair.community
Law firm website: albertsellars.law
Software Preservation Network: https://www.softwarepreservationnetwork.org/
Video Game History Foundation:
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Website: gamehistory.org
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TRANSCRIPT
-Transcript edited by Jeremy Seith
Phil Salvador 00:08
Hello and welcome to theVideo Game History Hour presented by the Video Game History Foundation. I’m Phil Salvador, library director at the Video Game History Foundation. If you’re a longtime listener to this podcast, you might know that we care a lot about video game preservation and copyright law, which is kind of a complicated, thorny topic. If you want to, you can go all the way back to Episode 59 from about three years ago, where we talked with lawyer Kendra Albert about how DMCA exemptions work and how that affects video game preservation. If you’ve been following headlines around video game preservation and copyright law, there’s not many of those headlines, but there was a pretty big one recently in the last couple months. You may have seen that VGHF, working with other groups like the Software Preservation Network, was helping advocate for a new copyright exemption that would make it easier for libraries and archives to preserve video games, which you may have also seen, unfortunately, that did not pass. It’s been a few months since then, and now that we’re all you know, we’ve worked the anger out of our system, and we’ve launched our digital library. We have a little more bandwidth. We wanted to record an episode about what happened with this, because we’ve seen a lot of questions from people about what exactly this process was, what happened here, what it was we were asking for, and why the industry was opposed to it, and then what the government actually said about it, like, what the actual practical impact of this is. So we’re recording a new episode about it, and we brought back and look who it is. It’s Kendra Albert, back from Episode 59. We previously introduced Kendra as a lawyer from the Harvard Cyber Law Clinic, but Kendra has gone indie. Kendra is now part of Albert Sellars LLP, an independent law firm that works on cyber law issues. So newly independent Kendra, welcome back to the Video Game History Hour.
Kendra Albert 01:55
Thank you. Thank you for having me. You know, yes, some people can go indie, and that category apparently includes me.
Phil Salvador 02:03
You’re the Ken Levine of video game lawyers. You quit your company and started your own independent studio.
Kendra Albert 02:09
Something like that. So yeah, thanks for having me back and giving me, and I think all of us, a little time to mourn, lick our wounds, you know, scream into pillows, etc, before chatting about this round of 1201 rulings.
Phil Salvador 02:26
Yeah, before getting to the tale, I will say I remember the morning that ruling came out, I was woken up by a text message from you that was just the, like, angry swearing emoji. And it was like, Oh, we didn’t win, did we? But, but yeah, we’ve had a lot else on our plates with the library. And also just kind of winding down from this and kind of processing what our next steps are, and all those questions. So now that the dust has settled a little bit, I fear we should talk about, well, not just what happened here, but what this process is in general. But before we get to that, I want to talk about you, Kendra, just kind of reintroduce you to our listeners who maybe have joined us in the last three years. What’s your background with copyright law, and how you got involved with video games and preservation and law and this complicated field?
Kendra Albert 03:09
Yeah, so, I mean, I think, you know, unsurprisingly, I’m a person who likes video games and plays a lot of video games, and I have been for a very long, very long time at this point. And this is actually my– this round was my fourth time advocating for video game preservation in front of the Copyright Office. So doing it every three years. It started about 12 years ago, when I was still a law student, and I got turned on to this issue because I was working with the EFF and, you know, we were sort of thinking about what kinds of exemptions might make sense to advocate for.
Phil Salvador 03:43
Electronic Frontier Foundation, I want to mention, for folks who’re listening.
Kendra Albert 03:46
Yes, the Electronic Frontier Foundation. I was working with the Electronic Frontier Foundation, EFF, to talk about what kinds of exemptions might make sense to advocate for and there was one specific to video games. And I had this moment, I think, when I started reading about the issue, where I thought about, like, you know, playing, I’m gonna date myself very specifically, but playing Everquest II as a kid, and this, sort of, like absolutely– I know, right? And this, like, these sort of absolutely what felt at the time to be like, sort of transcendental moments of like, that were things I’d never really experienced before, and the sense of, like, you know, you can’t really go back to that, right? And that’s obviously in some ways more complicated and specific, because Everquest II is an MMO and when we started looking into the issue, initially, it became clear that advocating for MMO preservation in this context was not going to be effective, but there was these broader set of preservation issues that were out there. And I remember actually reading this quote from, you know, I think probably fair to say, friend of the podcast, Henry Lowood, who teaches at Stanford, where he sort of said, you know, Section 1201, of the DMCA takes, like, the very difficult, I’m paraphrasing, but the very difficult case of video game preservation, it makes it impossible. And if that wasn’t, like a call to action, right, as like, a young law student who’s like, How can I, like, advocate for the things that I care about in the world? So that started my career of working on 1201 and here I am, you know, 12 years later, still working on it.
Phil Salvador 05:25
So before we talk about the previous things you were involved with, I think we should jump in, because we had a little bit of jargon just now talking about Section 1201. This is what this whole process has involved is something in copyright law in the Digital Millennium Copyright Act called Section 1201 and I think when at least our listeners, think about the DMCA, they’re thinking about the takedown provision, right? They’re thinking about like people’s VODs getting muted on Twitch. But this is a different part of the DMCA that if you could explain what section 1201 is.
Kendra Albert 05:54
Sure. And you know, if folks don’t know what it is, they’re not alone, because most lawyers, even potentially lots of copyright lawyers, do not either know what it is or spend much time on Section 1201. So section 1201 is what’s called the anti-circumvention provisions of the DMCA. So we’re going to cast our mind back to 1996 which is when the DMCA was passed.
Phil Salvador 06:14
Dial-up noise playing in your head.
Kendra Albert 06:16
Yes, exactly. I’m not going to attempt to imitate a modem, maybe in the bonus episode. But as part of passing the DMCA, Congress was at the time, very worried about the fact that, using new digital technologies, you could make, like, identical copies of copyrighted works without any degradation in their, you know, quality, right? So, like, if you’re taping, if you’re, you know, copying a cassette tape, right? Eventually it gets worse. But the thing about digital copies is you can make an exact copy. It doesn’t get any worse. So Congress is super– and the content industries are super worried about the potential consequences of this for media, for, you know, media’s ability to make money. And so as part of you know the passage of Section 512 which is the takedown provisions that, the part that everyone’s heard of, they passed this law that was meant to sort of make an independent cause of action, so that’s just jargon for saying independent thing you can sue over, to remove technologies or get around technologies that prevent the copying or access to copyrighted works. So the way that you can think about it is copyright law basically grants the people who own the copyright a monopoly, the being the only ones who can do a specific set of things. They make copies, distribute works, publicly, perform them. You know–
Kendra Albert 06:27
That is literally copyright. It is the right to copy. I think that’s– we say the word but this is what it means, yeah.
Kendra Albert 06:58
Yeah. But section 1201 is different, right? Because section 1201 isn’t necessarily– it’s an actually, it’s different. It’s separate from copyright. It says, you know, for copyrighted works. It is independently, legally risky to try to get around something that keeps you from making copies or keeps you from accessing that work. Now, what’s interesting about Section 1201, and again, we’re casting our mind back to 1996 when they passed it is, at the time people were like, This is a problem, because there’s all sorts of things we do with copyrighted works without the permission of the owner that are legal. You know, we have– there are in, you know, this is doctrine and copyright law called fair use. You do not need to know the section number, I will refrain from quoting it at you, which basically allow, you know, is where Congress has said, Hey, in certain cases, we actually don’t want the copyright owner to be able to decide how people use their works all the time. We don’t want you to not be able to quote someone’s copyrighted book for the purpose of critiquing it, or, you know, report on something somebody said, or, you know, create a parody version of something. Those are things that you should be able to do, whether the copyright owner likes it or not. The problem with section 1201, was that it doesn’t– you know the way it’s written it doesn’t matter if the things that you’re doing with the copyrighted work, once you break those digital locks, get around that digital rights management, DRM, are fair under– are fair use or are otherwise non-infringing. It’s still independently, you know, potentially– you can still get sued. This represents a problem, so Congress, as part of Section 1201, created this process by which, every three years, the Library of Congress would grant certain temporary exemptions for people who wanted to do things that would otherwise violate section 1201, but were non-infringing copyright and were generally, like, I don’t know, prosocial. There’s a bunch of criteria, but like, good stuff that we think is good in the world. It’s a pretty good summary.
Phil Salvador 09:57
Yeah, it’s like, I want an exemption to make illegal copies of the Rolling Stones master tracks, like you can’t do– that’s not– you’re not going to get that. Yeah.
Kendra Albert 10:03
Yeah. So there’s also a bunch of permanent exemptions in addition to the temporary exemptions, but the temporary exemptions are sort of why we’re here, right? So this rule-making that we’ve sort of been talking about getting an opinion in getting is the thing that Congress did to sort of solve the problem of Section 1201, which is that it prevents people from doing things that they would be able to do under copyright law. And you know, since 1996 the copyright office, every three years, has overseen a process by which people, proponents come in front of them and say, Hey, we’d like to be able to do this thing. And then, you know, opponents, you know, say, Actually, you know, the sky will fall if you do that thing. They don’t always say that. Sometimes they say, We have concerns. And then the Copyright Office makes a decision, comes up with sort of a whether, you know, proponents have met their burden, shown that all the right things are present to get that exemption to 1201. And then, if not, you know, if so, you get the exemption for three years. If not, then you don’t. So that’s sort of the story of what 1201 is. And it’s important to note that it is different than it is part of copyright law, but it is different than that sort of core concept of copyright. And I think that’s something that folks very reasonably get confused about, because it is very confusing.
Phil Salvador 11:19
It is, yeah, and I think the reason this become an issue, and this is we’re getting to talking about why this affects video games, is that when this was done in, you know, talking about back in the ’90s, you know, software was kind of this new, nebulous thing. But especially now that it’s 2025, the definition of what is software, like that has– software is in everything now, and this has ended up encompassing way more than maybe they anticipated back then. And my favorite example of this is one of the exemptions that was brought forward this year by a friend of VGHF, Meredith Rose, who I want to mention, by the way, Meredith Rose is like a super-accomplished lawyer, but she was by the office, and all she wanted to do was organize our Sonic the Hedgehog comics. It was amazing.
Kendra Albert 12:00
A woman after my own heart.
Phil Salvador 12:02
But Meredith, she helped on a petition around breaking copy protection on software that involves food preparation. This specifically was the Taylor ice cream machines that are used by McDonald’s franchisees. Franchises were not allowed to fix those machines, because doing that involved breaking copy protection. So the fact that you couldn’t get a McFlurry, or, I guess we’re in Shamrock Shake season at the time we’re recording this, but the fact that you couldn’t get that was because of a copyright issue, which is a very weird thing. So copyright has ended up showing its head in some really weird ways, because “software” is embedded in everything now, and this has been a particular problem for video games.
Kendra Albert 12:44
Yeah, so I think it’s also interesting, because I think when we talk about this, we see a lot of comparisons between video games and other art forms. And you know, I think some of those come up, because I’m sure, as we’ll talk about later in the podcast, you often see advocates, opponents of these exemptions, as well as potentially the copyright office, sort of endorsing very particular commercial views of the value of video games that often discount their value as an art form or has as historically important. But the other thing to note about video games here is that there’s a whole bunch of stuff that happens in software in copyright land that just doesn’t happen with other kinds of works. You know, basically every time you run a piece of software, you know, video game or not, you’re making a copy. It’s, you know, getting copied from wherever. You know, one part of your hard drive, parts of it are getting copied to RAM, you know, etc, etc. And that means that copyright is often implicated in software preservation and software access in ways that are not true of, for example, books where you may have to make a copy in order to transfer it to a new format, but you don’t necessarily have to make a copy anytime anyone wants to read it, which is not true of video games. And that means that often times, when we’re talking about some of the restrictions on video game preservation that come from the exclusive rights of the copyright holders, those restrictions can be quite a bit more significant in the context of software than they would be in the context of other kinds of artistic works, and it means we spend a lot more time, you know, arguing about things like 1201, or things like copyright law, in part just because of how the medium works, and in part, probably because some of the other issues that we’ll talk about as we get further into the conversation about, sort of what makes how video games are treated through this process.
Phil Salvador 14:36
Yeah, when I think about how video games got caught up in this thing, there’s so many moving pieces because there’s, you know, there’s so much complicated copyright around, you know, other mediums as well. And then software, there’s all the complications. And video games gets all those things at once. There’s this, you know, kind of famous quote from designer Frank Lantz, where he said that making a video game is everything that’s hard about making an opera and everything that’s hard about building a bridge, and that video games are operas made out of bridges. And I feel like game preservation is everything that’s hard about preserving a film, with everything that’s hard about preserving software. And video games are films made out of software, like in terms of having to deal with those issues. So in terms of how this affects video games, it’s tough because, yeah, not just that you’re always making copies, but basically every form of video game has some kind of copy protection in it, whether it’s like, baked into the CD, or it’s DRM for something from Steam, or it could even be, you know, like the the lockout chip on an NES cartridge. So effectively, this has put some restrictions on what libraries can and can’t do with their materials.
Kendra Albert 15:42
Yeah, and I think it is, it is certainly possible to argue that all video games have digital rights management or technological protection measures as the language in Section 1201, I think, you know, one of the areas that is sort of interesting to think about, and I think hasn’t gotten litigated a lot, just because it’s not, sort of relevant often is sort of exactly how to, sort of– whether there are potential limitations on a statutory level about exactly what’s covered, but the statute’s written super broadly, so it absolutely, like from a textual perspective, just like looking at the text like does cover, you know, everything from your, you know, bad sector copy protection on your floppy disk, again, you know, going way back to sort of, you know, more recent things that we might consider, like more classic DRM of the type that would fill up someone’s Steam reviews with negative comments.
Phil Salvador 16:35
Yeah. So it’s interesting for video games, specifically, because the petition that we worked with this year, and that also happened last year, is specifically around remote access to video games. There are ways for libraries and archives to remotely share archival materials in their collections in secure ways. They’re able to do that for other mediums, but for video games, there is this issue where, yeah, there is this copy protection in place. They do have to deal with this Section 1201 problem. Back in 2021 in the previous petition that you were involved with, an exemption was granted just for remote access to software and not video games, which is a very strange kind of hair splitting, like, where does that line go? But the reason they did that was, if I understand it right, really, that there is an argument that it’s like, well, no, there’s an argument to maybe there is still a commercial market for video games, in a way there isn’t for software, was the argument that was made four years ago, right?
Kendra Albert 17:34
Yeah. So, yeah, exactly, right. So basically, you know, despite the fact that determining an exact line between software and video games is probably like, you know, how many angels can dance on the head of a pin? The Copyright Office has taken the position that you can remotely access non-video game software. And preservation institutions can make that available remotely, because there just isn’t really a market for old copies of Word, right? Which I think is accurate, versus video games where there is both a market for rerelease and also, I think the sort of other thing that comes up in this context is this concerns over video game piracy, right? So I’m sure we’ll talk about both of those things. But yes, those are the concerns that were expressed in last cycle when they sort of chose to give the off-premises exemption for software, but not for video games.
Phil Salvador 18:30
And to be clear, there is technology that lets people do this too, like there’s, I think the big one that a lot of folks in our network use is something called Emulation-as-a-Service Infrastructure, which is a cloud-based emulation platform, which, yeah, we can use that to provide access to, like, an old copy of Windows 95 running an old copy of Excel, but we can’t do it for video games because of that. Like, there is literally in the federal register there it says, Except video games, in the law, which is kind of silly. So that’s what this most recent cycle was about, that culminated last year was Okay, let’s try to get this exemption again for video games. So for folks who’ve been following us have been following the podcast, you probably know about our 87% study where we showed that, Hey, 87% of video games are off the market and they’re probably not coming back because of these factors. We had an episode back in 2023 with Brandon Butler, who is also involved in this effort. And you know, if you want to know more, you can go back and listen to us talk about that for about an hour. It gets very detailed about how we came to that number, but we did it in support of this petition that was being brought by the Software Preservation Network. So let’s go to putting this petition forward in 2024. What’s different? How do we approach it differently? What’s it look like?
Kendra Albert 19:43
Yeah, so, you know, the first thing we did was like, look at what the copyright office told us last time. And I think one of the things that they, you know, the way they talk about sort of the market for rereleases of the market for these games potentially being harmed is often through the idea that there need to be more specific restrictions on, you know, what can be done in terms of off-premises access to prevent that market harm. And this is hard, because I think historically, SPN, who you know I’ve represented through this process, has taken the position that it doesn’t want to tie these exemptions to particular technologies. We don’t want to say, Oh, you can only use this exemption if you will lock it this down in specific way, and you only and you use Emulation-as-a-Service Infrastructure or whatever, because the reality is that different types of research or historical work or teaching involving games often requires different ways of accessing them. And because, you know, frankly, I think that something we have argued, and the Copyright Office does not like, but we have argued it historically, is that the kinds of preservation institutions that do this work are really well– this is the kinds of decisions they make all the time, which is like, what kinds of technologies should we make these materials available through. So, you know, we heard the Copyright Office say, We want more restrictions to make sure that this isn’t that this off premises access. And again, this is only, you know, we didn’t say this because I think it’s sort of implied, but it’s only for games that are no longer available on the commercial market. So that’s you can’t– you may still be able to buy a copy on eBay, but you can’t buy it from, you know, the publisher anymore, and also only for accessing the games for research, teaching research and teaching scholarship purposes, right? So, you know, it’s already a pretty narrow slice of stuff. So hearing that the Copyright Office wanted sort of more restrictions, what we suggested this cycle was sort of a model that’s built on a special collections model that libraries use all the time, which is, you know, if you want access to the Gutenberg Bible, you can’t just wander in to whatever library has it, whatever preservation institution has it.
Phil Salvador 21:55
Sticky, Cheeto-covered hands being like, Can I handle your priceless material?
Kendra Albert 21:58
Yeah, you put in a request, and you say, here’s what I’m going to do with the Bible, like, here’s why I need access to it, right? And you know, a librarian or, you know, archivist at that institution, someone who works at that institution, will evaluate your request and see if it’s sort of worth the potential risk to the material for you to have access. So we modeled our request this cycle on that model, which is just this idea that the goal was to have people making a specific request for off-premises access to a game, and they would have to explain why they wanted it. So this is not a circumstance under which people are providing– preservation institutions who would be able to provide wide-scale access. It was tied to the sort of idea that specific people would want access for particular purposes, which we thought represented a good way to sort of remain technology agnostic, which I think was a goal, while also sort of really trying to take seriously these concerns about sort of widespread access to off premises games and fit within the model of what institutions already do in terms of sometimes betting researchers for access,
Phil Salvador 23:06
Yeah, I, I was at the Museum of Play this summer for a conference that we did an episode about, and I studied in their archives, and they brought out for me, it was a piece of memorabilia from Maxis. It was a hat with like a propeller on top of it. And it was like, they brought it out with, like, the gloves, and they clearly, like, assessed, like, Okay, this guy’s not gonna do anything weird with the hat. It’s like, yeah, we can take that model to, yeah, video games as well. But it’s– I feel like you mentioned that the slice was already thin. I feel like it’s getting thinner and thinner until, I forget what cartoon it was, where it’s like, a slice so thin that it’s just kind of like a transparent sheet. Why is this so difficult for video games in particular? Why are we having all these issues just with video games and getting anything across the goal line?
Kendra Albert 23:53
Well, I think some of it has to do with the sort of copyright questions that we mentioned earlier, the very nature of games and of software. There’s a couple other reasons I think, you know, one of them is that video games don’t often get talked about or engaged with in the same way as other kinds of artistic works, right? You know, I think, although I don’t think you see this explicitly as much in kind of the Copyright Office rulings, or even in the Entertainment Software Association’s briefings, we’ll get into how they come in in a second. There is sort of this implicit kind of belief that these are commercial products, right? And that the commercial value of these products is the important thing here, right? The the artistic or historical importance is sort of secondary to the commercial value. And, you know, I think it’s fair to say that a lot of mediums go through this process. I mean, you know, there’s sort of one of the issues that we often end up talking about, especially around the 87% study and you know, the lack of historic access to historical games is like sort of the early history of Hollywood films. Where they basically, like, taped over, destroyed, like most of the silent movies, and that was just how the industry worked, right? But ,so I do think part of it is that video games don’t get the respect they deserve, frankly, like and that is an implicit argument than one that is made explicitly on the text. But it has some consequences. One of those consequences is a real set of very specific focuses on video game piracy. And, you know, I use the word piracy here in some senses, because I’m functionally quoting the Entertainment Software Association, not because it’s the word I tend to use generally, but you know, the idea that because video games, there has been historically widespread problems, you know, sort of with video game piracy, that those concerns should– because people pirate video games, that should mean that we need to be even more restrictive about providing other kinds of off-premises, access to researchers. The third thing about what’s special about video games, and it’s not specific only to video games, but it is pretty special about video games is, the Entertainment Software Association. So that’s the video game lobby, for lack of a better term. They represent, sort of major, major publishers and developers video games. And they have historically opposed every single request to make it possible to preserve or broaden access to preserved video games.
Phil Salvador 26:39
And previous requests have also been, I think, smaller in scale, even where it was, things like, Hey, we want to make sure if a game tries to contact servers, but the game is otherwise totally playable without online access, we want to let archives break that DRM, and their argument was like, No, this will lead to widespread piracy and the destruction of the video game industry. And then we got that exemption, and the video game industry seems to be doing a good job destroying itself right now. I don’t think that’s the result of people– yeah, put like an air horn in there.
Sad Trombone 27:08
Whomp, whomp, whomp, whomp.
Phil Salvador 27:09
But I don’t think that’s the result of people accessing things through libraries.
Kendra Albert 27:13
Yeah, and I will note that, at least to my recollection, the current status of that exemption is actually that you can remove digital rights management to make playable a version of a game that required access to an external server for yourself, even if you are not a preservation institution, like you as an individual. And that was the first fight we had that was like, you know, when I talked about Everquest II and back in, like, 2015, that was the fight we were having then. But yes, exactly as Phil, as you said, right? The Entertainment Software Association has historically opposed every single one of these requests. And you know, often does this interesting dance, which I sort of admire from a lawyerly perspective, which is saying that, you know, the request will result in widespread privacy until it gets granted, in which case the restrictions that the Copyright Office placed on that request were the only thing that stood between that request that was granted, and widespread piracy. You know, I sound a little flip, and I think that’s partially because this has been a long process, but I think also it is worth noting that this is not a position that ESA has to take, right? I could imagine a world in which actually they are more supportive of this work, because I honestly think that the sort of, exactly as Phil said, right, the sort of how thin the slice is. The small number of institutions and organizations that make use of these exemptions do not represent a threat to the ESA bottom line, and it feels more of a sort of dogmatic position, frankly, that comes, and we can talk about exactly how that came out during this year’s hearings, to oppose these requests than one that’s sort of rooted in an understanding of either video game preservation or of what’s actually going to matter for the state of the industry.
Phil Salvador 29:03
Yeah, I think there is– the video game industry, I think is still historically very defensive about this stuff. I mean, you know, for the longest time, you’ve seen a lot of companies that automatically say, Oh, emulation is a tool for piracy, like there’s such a strong association with it, we’ll plant that flag for later, and come back to that later down the line that will result in something kind of funny and depressing later, but I think it’s– I don’t think their concerns are, you know, unreasonable. I just think they’re wrong. I think they’re just not rooted in an understanding of what this actually, practically looks like, and what issues are affecting video game preservation and how exemptions like this would, you know, create safer ways to access– that this won’t lead to increase in piracy. I think there’s, there’s a lack of understanding of the ground, and I don’t think that’s anyone’s fault, exactly. I think, you know, if you are, you know, the person at a video game of company who’s in charge of, like, rereleasing your game and understanding the rights around it, you’re not necessarily talking to the person who’s, you know, at a higher up executive level, who’s then talking to the Entertainment Software Association. I think there’s just not a lot of communication about what this practically looks like. But the end result, though, is that every time one of these petitions comes forward, the ESA opposes it, as they did this time. So Software Preservation Network put their petition in with everything we talked about, with all the evidence we brought up about the fact that there is not a commercial market for the vast majority of video games. And the ESA came back with a rebuttal that said, as I remember, it pretty much exactly the same thing they’ve said every other year.
Kendra Albert 30:32
Yeah. I mean, I think they’ve gotten a little bit softer. I guess when you know this year, this cycle, they did talk, I think, a little bit more about sort of that their concerns were rooted in people who are other than the proponents. So basically saying, Well, you proponents are upstanding academic institutions, but we’re concerned about other people who are going to take advantage of this exemption. And Phil, exactly as you were saying, right? The reality is that people who are going to run, like, giant pirate libraries of games do not care about what 37 CFR 201.40 B, 17 4 E says.
Phil Salvador 30:32
Did you just know that off the top of your head?
Kendra Albert 30:33
No, I was looking–
Kendra Albert 30:34
Yeah. Like, they don’t care what these exemptions say, right? Like, this is not– this law does not provide effective deterrence in that context, right?
Phil Salvador 30:34
Okay, good.
Phil Salvador 31:27
Yeah. And there are also, like, firm definitions in place for, like, what a library or archive is, where it’s like, no, you have to have, like, a full time person who’s trained in this area, who’s providing expertise. And it’s like, if someone says, Oh yeah, I’m a library and doesn’t, you know, and just kind of distributes games for free, not adhering to the law, it’s like, well, guess what? They’re breaking the law, either way. Like, it’s not like, this changes that.
Kendra Albert 31:47
Yeah. So I think that concern, which is sort of this will– We’re concerned about people who might be enabled by this, you know, is sort of an interesting way to frame it. You know, I think the other thing that sort of came up this cycle is, you know, this again, right? This sort of idea that there had to be really specific restrictions on exactly what kinds of access were provided. And I think they very explicitly,nd this is sort of a thing that has changed between last cycle and this cycle named the Internet Archive, which had been the subject of litigation over their ebook lending program, and had lost, at the time that we were going through this process, had lost at the district court level and then lost in the Second Circuit, you know. So that, to be honest, had always been a sort of implicit part of the conversation. But I think more explicitly they, this time, the ESA brought up the Internet Archive as a, you know, sort of an organization they were concerned about. So, yeah, you know, basically a lot of what they said is quite similar to what they had said previously. And that, you know, I think, often gets most succinctly expressed by this idea that we were not limiting our request enough. This, you know, that SPN had not done a good enough job articulating the very specific things that need to be present, and that they did not believe that the sort of special collections kind of model of requests would create significant limitations on who could access these works. I think that’s just wrong. But, you know.
Phil Salvador 33:19
It feels very a Zeno’s paradox to me. The thing where it’s like, Oh, you go halfway and then you go halfway again, and you go halfway again. It’s just getting closer and closer without getting to the end, where every time we make another compromise, they’re like, Oh, we wish you could compromise a little bit more, and that little bit keeps getting smaller and smaller, but it’s never enough.
Kendra Albert 33:20
Yeah, and I understand, you know, this is their, you know, they’re paid to take, you know, this is lawyers who are paid to take a position on this, right? You know, and just as I represent my clients, they represent theirs. But I do think fundamentally, it sort of creates this really significant challenge, because the people who are inhibited by this sort of hair-splitting are legitimate preservation institutions. Again, right? You know, if you’re running a sort of library of, you know, ROMs that of questionable legality, you do not care about the outcome of this procedure. It does not matter to you, right? So it often ends up, I think, really negatively impacting exactly the types of institutions that one would imagine that ESA wants actually to be doing game preservation and providing access to games?
Phil Salvador 34:23
Yeah, I’ve worked with a university that had a game history class, and I, you know, did a guest lecture, and they asked me to talk about game preservation. I looked at their syllabus, and they had like, Here’s all these historically important games, and almost everyone was just a link to the Internet Archive to play it in browser because there’s no legal way to access it. And it’s like, don’t you want people doing the responsible way of accessing these games through a trusted institution that knows how to provide responsible access. And I guess not, but–
Kendra Albert 34:50
Yeah, and I will say for the record that I would not admit, nor say that what the Internet Archive is doing is not legal, but it certainly–
Phil Salvador 35:00
Based on the rights holder, I’ll be clear on that.
Kendra Albert 35:02
Yeah. But it is certainly striking that, like, that is the way in which many, many folks, are able to access works. Do we want to talk a little bit about the hearing?
Phil Salvador 35:14
Well, before that, I want to talk about a response to the ESA. Because the ESA came back and said, Oh, this is going to negatively affect us. And we came back with, I think, two very strong testimonials from our friends at Antstream Arcade and Limited Run Games, which do video game rereleases and both of them effectively said like, Yeah, not only does this not affect us, this will actually benefit our business by increasing interest in video game history. There were some really good anecdotes from Antstream specifically, where they were like, Yeah, when we try to license titles, it cost us like five figures just to do the legal legwork to make sure we own it. It’s like, there’s no return on investment for a billion titles. Like, if, yeah, the people who actually do the legwork of getting these games out, like I said that, you know, the people at an executive level, maybe aren’t talking to people actually involved in understanding the release status of these games. They’re like, No, we do this every day. This practically does not affect us.
Kendra Albert 36:12
Yeah. And I think that was especially powerful because, you know, Antstream, I think in particular, and maybe Limited Run, although I don’t remember off the top of my head, we’re both cited by the ESA as examples of organizations that were doing the kind of rereleases where the market would be affected.
Phil Salvador 36:26
I don’t think they cited the ESA, but Limited run does do a lot of rereleases for large companies. So, like, they are working directly with the sort of company– I don’t know if it’s particular companies that the ESA represents, but like in that category, yeah, they’re often doing reissues for those companies.
Kendra Albert 36:40
Yeah. And I think, you know, it was, you know, with huge gratitude to those folks for sort of putting themselves forward. I think it represents exactly what you said, Phil, which is just this really significant difference between the on-the-ground reality that folks who develop, play, work with video games every day experience, and sort of the ESA and maybe other like, executive position, and I had the pleasure of going to GDC last year to talk mostly about this, and I just kept talking to people, and they would be like, Oh yeah. Like, and I’m talking about folks who are on the business side of video games, and they would be like, Oh yeah. That would not like, you know, that would not affect us negatively. Like, why would– it would be silly to them, right?
Phil Salvador 37:20
I’ve talked with an unnamed executive level person at Major Game Publisher, and they were like, Well it sounds like you just want to, like, let people use our intellectual property. I explained what it was, and there was little silence on the phone and he was like, Yeah, that that makes sense. It’s like, yeah. Like, it is this, like, fairly reasonable thing, but it’s just, unless, if you’re someone who’s not dealing with the practical realities of the business of classic video games, you’re not aware of this. So we had our petition, the ESA replied, we responded, and then we had the hearing last April, which sounded like you were ready to jump in and talk about how that went, Kendra.
Kendra Albert 37:51
Yeah. So, I mean, I think, you know, you can never really tell too much from the hearing, as we’ll talk about when we get to the actual Copyright Office ruling. But you know, I think one of the things, the thing that really stood out to me about the hearing, other than the fantastic job that our witnesses, including Phil ,did, was that, you know, the Entertainment Software Association rep came forward and said that there was no combination of restrictions on access to these preserved video games that the ESA would be prepared to accept. So to your point about sort of like Zeno’s paradox, like, you know, splitting the hair, right? I think, to me, that is so striking, because I think what it suggests is that this is not a stance that’s based on evidence or facts on the ground. It’s a stance that’s sort of based on kind of an overall theory of the world, where the people who want to provide access to use your intellectual property in ways that are not copyright infringement, for the purposes of preservation, for teaching, to have people be able to understand the history of video games so they can make more video games, so they can buy more video games, all of that is you sort of viewed as antithetical to sort of what you want in the world. And, you know, I think that, to me, is really striking, because on some level, I think it felt obvious to me before that, that this was sort of the position the ESA had taken. But it just speaks to the degree to which this is not a, you know, the conversation that we’re having with the ESA, the back and forth, is not rooted in a factual understanding of what the on-the-ground experience is like for people who are doing preservation or for games.
Speaker 1 39:25
And not to speak for ESA members, but I don’t know that, like ESA membership is even aware that this group is saying that on their behalf. Like, you know, I think that that’s a future conversation. I think when this did not pass, and we’ll get into talking about that a little bit later, I think there was a very sharp negative reaction from it. And I think again, I don’t know that people in the North American video game industry are aware that the lobbying group for the North American video game industry hold these positions. And so I think for a lot of people, the fact that all this happened was instructive in some ways.
Kendra Albert 39:59
Yeah. And, yeah, it’s just, it isn’t really, I think, in some ways, probably, like a left hand doesn’t know what the right hand is doing, position, right? You know, if you think of the ESA as the group who threw E3 or used to throw E3 or whatever, right, the sort of, this entire procedure is, as we’ve already, I think, more than covered, incredibly wonky, like, silly in the weeds, very weird, detail-oriented, like, small, like, you know– but it does have profound consequences for the space more broadly. And I think it in some ways, I think the ESA has sort of taken advantage of the fact that people don’t really pay attention to it, to sort of take this pretty strong, dogmatic position over time and in ways that are not really visible to the constituency that they’re maybe theoretically supposed to answer to.
Phil Salvador 40:52
I mean, the ESA can report back and say, Hey, this year we defended copyright law. It’s like, great, but like, what does that actually look like? What does that mean? And yeah, I think it’s often– I think this process, again, as you said, has been going on every three years. And I think it wasn’t until this cycle that I think I saw, we’ve seen, like, a really widespread awareness of like, Oh, why is this happening? Why is the industry opposed to this? Which not to say that, you know, the goal was just to, like, you know, make this known. But I think that is a side effect of going through this entire process, was making this more visible to people in the way that I think it hasn’t been before. But the hearing, I think, was especially good, not just for that, but also, you know, getting all this kind of on the record, having– I’m very glad we were able to, know, get the ESA on the record saying, like, No, we’ll never agree to something like this. I think also, interestingly, you know, again, we mentioned how you know they’re wrong on the facts and a lot of stuff. I think it was telling that, you know, the Copyright Office was asking questions to both parties about things they needed clarification on and a lot of that was around, like the technology and how they understood that, and like, how this would practically work. No questions came up about the 87% study and what the actual like, market for video games looked like. And that remained off the table until the ESA’s lawyer jumped in and was like, Oh, and by the way, that study is wrong, with no evidence to cite it. And I remember we had our like, you know, chat going as we were, you know, like, discussing, like, how do we coordinate this? And it was definitely like, Oh, blood in the water. It was like, Oh, man. Like, why did they open up this kind of worms? So it was, I think, useful to at least see that. Like, no, they really don’t understand the practical realities of this issue, because they’re not the ones dealing with it.
Kendra Albert 42:33
Yeah, it is sort of funny, as someone who’s like, spent a bunch of time in academia where people accuse you of being out of touch, to be like, I’m pretty sure the folks at this hearing that feel the furthest from like, the sort of reality of what video games, and video game preservation, and video game, sort of, industry enforcement looks like is not actually me, right? But, yeah, it was an experience, and I appreciated there were also folks who sort of tuned in, who livestreamed it, who watched it, and like that was also sort of fun, because I think, you know, we’ve done a lot of these hearings, and I appreciate we spend a lot of time preparing for them, as Phil can attest. And, you know, appreciated folks engaging with it, because I think it is important to be like, this is, you know, on some level, this is, it’s a process that takes place in public, right? And people engaging with it and understanding what’s going on is just sort of a good thing for the space. More generally.
Phil Salvador 43:28
Yeah, I think, especially right now, at the time we’re recording this in early 2025, I feel like the idea of faith in civic engagement is at an all-time low. But it was like, No, this was a process. It’s like, No, the public is allowed to watch these hearings, and we, you know– so, yeah, I’m very glad we’re able to bring more visibility to that. So this happened, the hearing happened six months later we got the verdict from the copyright register, which was, No. Let’s break this down. I think you’ve spent more time– I just kind of see the like, the ennui in your face as we’re talking about this, but I think you’ve spent more time, like, closely analyzing what they said. But like, why did they say no to this? What was the– Yeah.
Kendra Albert 44:08
Yeah, so in order to get a 1201 exemption, so I’m going to call back to our beginning conversation, right? In order to get one of these 1201 exemptions, you first need to show that the use that, you know, folks want to make of these works is non-infringing, which doesn’t infringe copyright. Our argument, the SPN’s argument, for why these uses are non-infringing, has turned on Fair Use. And Fair Use is a doctrine that has four factors that you assess. And of course, it is a fact-specific, you know, test where you go through each factor, and you kind of get some vibes, and then you reach some conclusions.
Phil Salvador 44:43
To clarify people too, Fair Use is such a wibbly, wobbly thing. I remember there was a case a while back where it was, I think it was a university that was like copying things from textbooks, and it was like they had to, like, rule independently, Okay, how does Fair Use apply to, like, every single one of these cases. Like it is, as you said, is very fact-based.
Kendra Albert 45:00
Yeah. So you know, there are four factors of Fair Use, but there’s two that really matter, and that’s the first and the fourth, confusingly enough, and the first factor of Fair Use is sort of the, basically what you’re doing with the copyrighted work, the purpose and nature of the of the use of the copyrighted work. And, basically, what the Copyright Office said here is that, you know, spoiler, they concluded that the uses in question were not not-infringing. That was the basis upon which they ruled that they shouldn’t sort of grant the exception. You know, with regard to the first factor, they said, basically, The exemption is not narrow enough. It doesn’t contain appropriately tailored restrictions to ensure that uses would be limited to bona fide teaching, research or scholarship. So, you know, this goes back to the sort of thing we talked about at the beginning, about the strategic choice, about like, Okay, well, how much restriction, how narrowly are you slicing this? How thin are you slicing the cake? Right? Basically, they said, you know, you did not restrict enough the, sort of, uses that this could be put to. And for that reason, we can’t necessarily conclude that the purpose and character of the use would be appropriate. You know, I think this is hard to understand a little bit. You know, certainly, there are ways in which we could have been much more technically specific about, Oh, we’re only talking about emulation. You can’t distribute, you know, copies of the game in a way, you know, or they have to return them, and they’re only for a limited time. You know, there’s specific types of restrictions you could put on there. But it does seem quite surprising to me to say that we were not making sure that the uses that were happening off-premises are restricted to bona fide teaching, research or scholarship, when literally, what we’re suggesting is that every use that is going to be made of these games would be individually reviewed by someone at a specific type of eligible institution to determine if it would be research, teaching or scholarship.
Kendra Albert 47:05
I just had a horrible intrusive thought where it’s like, Oh, you know how we can do that objectively, is, let’s use the power of AI and have it really determine if it’s a research case. But no, it’s like, I’m not sure how much more you get than like, someone individually checks everything and makes a qualitative determination. I don’t know what you get, more than that.
Kendra Albert 47:21
Yeah, I mean, I think you know, what I see this as asking for is much more specific technical restrictions, which I should just note, the statute does not require us to, you know, proponents to lay out a bunch of specific technical restrictions. And I think this speaks to the degree to which, to some extent, the copyright office, over time, has sort of developed its own way that it wants to think about what counts as a good 1201 exemption. And that’s often this, you know, very hyper specific, you know, checkbox approach, which is not actually aligned with Fair Use, for example, or, you know, generally, what is non-infringing. So that was the first factor, that was the first reason that the– you know, so the Copyright Office says, well, we don’t think that the uses are sufficiently narrow under the first factor. And the other factor, which is the one where you know, I think Phil very reasonably, will get agitated, that they determined that, you know, the proponents had not met their burden on was the fourth factor is effect of the use on the market. So this is the reason we’re talking about rereleases, and, like, you know, game releases, and you know the market value of these games, because the register basically in the previous cycle said, Well, the fourth factor weighs against Fair Use, because there’s a substantial market for, like, I see, video games. And the exemption does not prevent users from further distributing or making entertainment uses of these video games. So this was the entire reason that they said that in 2021, that the Video Game History Foundation did the study that said scientific, these games aren’t going to get rereleased, right?
Phil Salvador 48:56
We scientifically proved that the vast majority of games are not going to get rereleased, and that’s what we’re focusing on.
Kendra Albert 49:00
Yeah, and I think, you know, what the Copyright Office says about that, I have the language right in front of me, is that the, you know, opponents have presented evidence of a substantial market for the older video games. So that’s the ESA. While proponents are correct that some older games will not have a reissue market, thank you, Phil, thank you Video Game History Foundation, they can see that there’s a healthy market for other reissued games, and that the industry has been meeting greater concerted efforts to reissue games. Now I want to talk about this for a variety of reasons. One is, you know, the word “healthy” is in quotes here because it’s a quote from the Video Game History Foundation report, which I should just note is not our briefing, SPNs briefing, and so, which is not to say that I do not support the conclusions of the report, but it was very striking to sort of see them kind of go back and forth in terms of what counted.
Phil Salvador 49:49
It’s frustrating to me because it seems almost like a deliberate misreading that what we said in the report is, While there is a healthy rerelease for some specific games, there is overall not a market. And they read that as, Well, even though there’s not a market for specific games, there is a healthy market for all the others. It was like– if it wasn’t someone as responsible as the Copyright Office and the copyright register, I would almost read it as, like, a deliberate misreading of what we were trying to say.
Kendra Albert 50:20
Yeah. I mean, I would feel hesitant to reach that conclusion on-air. But I think that, yeah, I mean, it’s really striking to me, because I think what they also what it doesn’t engage with, which is, I think the point that both that Limited Run made, that Antstream made, is that it’s not actually clear that the kinds of access that are permitted by this exemption will have a negative effect on the rerelease market. And I think this is so important, because I think there is this idea that is sort of at the core of the Copyright Office and the ESA’s briefing, but also the Copyright Office’s belief here, which is just this sort of, kind of, like common sense idea that, you know, if you make it available for free to anyone, fewer people will buy it. And I think that is not true. And there’s this really interesting thing that I encountered a couple weeks ago when I was looking at cases for something else where there’s a case, a Fair Use case, involving standards, like, the sort of, like, electrical code rules and whether you can make those public if you’re required by law to follow them. And one of the things the DC Circuit said in one of those cases is, We understand why, you know, the the owners of these standards who sued, Carl Malamud, who was the person who made them publicly available, believed that providing access to these standards will, you know, cause people to pay for fewer copies. But there’s not actually any evidence of that, right? And I think that, it is, to me, that’s part of what’s really striking here, which is that I think this cycle, I think we effectively did provide evidence that those common sense beliefs that the ESA has built their, sort of, theory of the world around here, are not true, right? Or at least not shared by people who have significant industry experience. And it’s not just like SPN, you know, coming in from the outside saying, like, We want to preserve games, not that that’s actually what’s happening, but it’s, you know, folks who are on the very, like, very much the cutting edge of doing the very rereleases, reissues, they are also saying, Actually, like the math doesn’t math here. Like, the idea that this incredibly limited access for researchers would result in lower reissue sales or harm the market for these works just is not backed up by that.
Phil Salvador 52:42
And something we didn’t get into in the hearing, and I think this would have gotten deep into the weeds, is that, like, I think we talked about in the study, but it’s like, when people buy rereleases, like the idea of a game being accessible is often itself, not, you know, that’s not a market driver in some ways, that it’s like, if you look at like, what companies like Digital Eclipse are doing with things like Tetris Forever, it’s not just, Here’s an old version of Tetris. Wow. The market solved this problem of preservation. It’s like, no, they have all this value added material around, like, you know, having documentary materials, from being able to understand the history of games, or even, like, modern rereleases, having achievements. Like, what we’ve talked about with remote access, is maybe the least convenient, fun way to play a video game in some cases, and we didn’t get into that. But yeah, to the point you were saying about the type of access that would be permitted will not harm the market in this case, like, I think we did a good job proving it, and it’s frustrating that the copyright register seems to have not engaged with a lot of the facts we brought, and a specific one, doing a callback to what I mentioned earlier that was very frustrating, in our study, we cited our executive director Frank Cifaldi, one of his talks at GDC, where he talked about how emulation as a technology in the video game industry is often there’s still this negative aura around it, because it’s historically been associated with piracy. And there was a footnote in the register’s opinion that was like, Oh, an emulation is historically associated with piracy as like a reason to not permit libraries and archives to engage with remote emulation. And that’s just so incredibly frustrating to me.
Kendra Albert 54:11
Yeah. I mean, it is quite striking, because I think it, like, it does speak to the idea that I think that, you know, one question I come back to a lot is this sort of like, what do people believe without there being any evidence that it’s true, right? And I think that, you know, one of the core beliefs that I think is present in this proceeding is that any additional access that is not specifically permitted by the rights holders creates sort of additional risk of, you know, copyright infringement, or, you know, tools and techniques that might be used for “piracy”, you know, to put it in scare quotes, inherently, there’s something about them that like attracts piracy, right? This. It’s like the emulation argument, and it’s like, no, like emulation, you know, as as Frank says in that talk, like emulation is the tool that’s also used to basically reissue games, you know, rerelease, reissue games in certain circumstances, to access games that otherwise would not be accessible or not be playable, right? Like, you know, it’s a tool and actually like the copyright– from a copyright perspective, copyright laws, like, they’re actually quite positive about emulation and about the sort of right of people to engage in emulation-style technologies. But I do think there is a degree to which one of the things that was difficult about this cycle was that we, I think, with the help of folks like Phil and folks like Frank, where SPN was able to marshal a lot of evidence of the things that we claimed about the way the video game industry works, and that, though, that evidence didn’t did not necessarily seem to sort of move the needle about beliefs that felt inherent or sort of preconceived notions that folks, you know, folks might have about how this stuff works.
Phil Salvador 56:07
Yeah, I think that’s one of the good things about this hearing, about this entire process, is that we really left it all out of the court this time. Is that, you know, we went through this process where we brought some really strong documentary evidence of the fact that there isn’t a market, in many of these cases, testimonials that the market is not going to be harmed at this type of exemption, you know, everything we could possibly bring forward, and the copyright register, even in the face of this evidence, still said, Well, no. I don’t think there’s more we could have done there. And this leads us to, I think, the next question here, which is, what’s next? Because I think a lot of people saw this and felt despondent. I saw a lot of people who are like, Oh, you should just hire things anyway. And it’s like, we’re not giving up on this. Like, I don’t want people to feel discouraged because we’re not. So I guess the question then is, like, what could potentially come next from this? Like, if we can marshal all this evidence and it still doesn’t move the needle on the copyright office, how else do we change this?
Kendra Albert 56:58
Yeah, I mean, I think there’s a couple different ways we can think about. I think one, you know, thing you mentioned, that I think is important to talk about here is the fact that, you know, to the degree that to which, at least in historically, the ESA has taken these positions without significant pushback from people that they perceive as within the industry, or sort of without it being a significant source of conversation about, like, Wait, why is the money we could be using to not, you know, lay off every single, you know, person when the number doesn’t go up high enough, why is that money going to pay folks who are opposing, like, relatively common sense preservation requests ethic in copyright office? You know, I think, so, one of the things that I do get a little hope for is, sort of, the fact that I do think this is a more active conversation about, is this actually how the industry should be advocating for itself?
Phil Salvador 57:53
I think that is something that I’ve seen that this whole process has moved the needle on is, I think, since, especially since the 87% report, and since the hearings, you are seeing game preservation being thrown around as a buzzword a lot more by companies. But you see things like, you know, there’s like, gog.com is doing their, you know, their preservation program, where they’re trying to invest more resources into maintaining forwards compatibility and getting a lot of companies on board with it, where it’s like, Hey, the Resident Evil games are getting rereleased through here. It’s like, is Capcom aware that their money is going towards opposition, towards copyright reform, for preservation? Or, like we recently saw this thing with, you know, Microsoft rolling out their generative AI for preservation, thing, which is deeply silly. Also, we did have, you know this– but in the, you know, I want to give credit. Like, I think this was a case where they made some, like, big, expensive technology, and they were like, Hey, what else can we use this for? Like, a video where, you know, the CEO of Microsoft gaming said, like, game preservation is really important to us. Like, that wouldn’t have happened in five years ago, even, like, just the fact that people are aware of these issues. So I think that is a room to begin that conversation with game publishers to say, like, Hey, if this matters to you, like, here’s some practical things you can do to tell the people who are representing you. It’s like, Hey, lay off of this one like this. I’ll work with libraries on this and not oppose this kind of thing.
Kendra Albert 59:13
Yeah. And, I mean, I think in some ways, you know, if there was a proposal on the table that felt actually workable for our preservation institutions, and that, you know, was sort of, in that way, was responsive to, like, to the concerns that the essay raised, like, you know, in some ways, what’s hard about the being a proponent in this process is you’re the one who always has to come forward with the thing, right? You know, the opponents don’t have to, they don’t have to propose anything, right? You know, I think to the degree that, if there are legitimate concerns, I think that, frankly, the folks who are involved in video game preservation on an institutional level are very responsive to those. It’s just this sort of absolutist, kind of, Well, there’s nothing that could ever be with appropriate to allow remote access, to preserve games. Like, that’s difficult to recommend.
Phil Salvador 1:00:11
It is hard to reconcile, yeah, that it’s like, Okay, where can we find common ground? And the official stance of the video game industry is, there is no common ground at all we will ever agree to.
Kendra Albert 1:00:23
There is not any combination of limitations that the ESA would support for access to remote games. You know, I would be remiss if I didn’t say this happens every three years. You know, in two years-ish, we get another shot at it. You know, I think it, it is a little hard, because I think, I agree with, Phil, what you said, that we sort of left a lot of it on the court in terms of the factual stuff. You know, I think it would have to be a conversation about whether there are additional restrictions or technological restrictions that folks would feel are reasonable and implementable. You know, what’s hard on some level about this is sort of this chicken and egg problem where institutions don’t want to invest a lot in making video games remotely accessible– historical and preserved games remotely accessible, because it’s not legal to do so, and then, because they have not invested a lot, it’s difficult to understand exactly what those systems would look like and to sort of argue with them specifically in mind in front of theCopyright Office. So I think there is a conversation to be had about in three years, whether what it would look like to sort of, you know, fight this fight again. And it’s not like the evidence that, you know, folks produced this cycle goes away, right? We could still cite it in the reply briefing, actually, I think there was a point in which, like, we cited like, 12 years of briefing on a particular subject, because at that point, there had been 12 years of briefing on that subject. And so I think we can still draw on that expertise and the sort of knowledge and the kind of support that that, you know, folks provided this cycle in future versions. And so I think that is, that’s helpful also, to sort of say it doesn’t go away. You know, just because we didn’t win this time doesn’t mean that those kinds of evidence can’t be brought forward again.
Phil Salvador 1:02:14
Yeah, I think, and to be clear on this, because I think a lot of people said, like, Oh, the petition the VGHF made, I want to be clear, like, this was SPN is the group that brings the petition the petition, the Software Preservation Network. Our contribution to this is helping provide effectively, ammunition for, like, understanding this and bringing subject expertise. So I think from our perspective, again, I can’t speak to what you know, SPN’s strategy is for the future, but from VGHF’s perspective, I think our thought on how to continue the advocacy efforts around this is like, Well, if, if the problem is, you know, the opposition, it’s like, we need to talk to the opposition, I think is for us at least, that’s kind of the next direction our advocacy effort needs to take. I had made a point of, like, Oh, we’ll come back and start thinking about this again after the library launch, and we are still– at the time we’re recording this it’s been still less than a month since the launch of the library, so we’re still kind of winding down from that, getting ready for the Game Developers Conference, and thinking, Okay, well, what’s next? So that might be– for the rest of the year we may begin thinking about that more.
Kendra Albert 1:03:07
Yeah, and I should note, you know, I’m sort of here speaking, I think, historically, in my role as working on this. I’ve represented SPN. I’ve also sort of worked on it in other capacities. You know, SPN, as an organization, is, you know, a group of academic, you know, has a group of academic members, most of which are not video game preservation institutions. You know, SPN got into this game primarily because, actually, for the non-video game software exemption, and because, at the time that that proposal went in, we did not draw a distinction between video games and non-video game software, because that distinction does not hold up super well all the time. So I think, you know, there’s an opportunity to think here about sort of, you know, what the strategy is in the space going forward. Because I think that you know the need is, on some level, only going to get worse, and for preserving and making available access to these kinds of works. And, I think, there is the opportunity. You know, one good thing about the triennial rule-making is you get to try again. And it is worth noting, we didn’t lose the existing exemption right, the exemption that allows eligible institutions, libraries, archives, museums, to make copies of games, preserve them and make them available on their own premises to researchers. The thing we’re fighting about is, sort of, the off-premises stuff, which is a huge deal because it’s the difference often between people functionally being able to access this stuff and it being limited to an even narrower slice of researchers or folks who might want to be able to access to, you know, view and play, preserve games. But, you know, one good thing is, we don’t lose any of the progress that we’ve already made, right? You know.
Kendra Albert 1:03:08
I think it’s telling that, you know, for every time we get an exemption does have to be renewed. And every time they put forward and say, Hey, can we renew this? And it just kind of gets, you know, rubber-stamped, Yes, it’s fine, in no case have we ever had the ESA oppose one of those renewals because there’s no evidence that it’s actually harming the market. And I think remote access would end up being the same way.
Phil Salvador 1:05:14
Now I know we have a number of questions from our Discord, so I want to plug really quickly here. If you join our Patreon to the $10 tier or above, you get access to our Discord and you can ask questions that may appear on future episodes of the Video Game History Hour. So we got a number of questions about this, but this episode is starting to run a little bit long, so I think we might actually save these for a bonus episode, which also, if you join our Patreon, you do get access to bonus episodes where maybe we’re going out and about in the field, going to events, maybe we’re just going little longer with some of our guests and asking some additional questions. So I think we’ll kick those over to a bonus episode. But before we wrap this one up, I have the most important question here, Kendra, this has been on my mind ever since the hearings this came up, and when I was watching a stream of someone playing this: is Color a Dinosaur for the NES, a video game or a piece of software? Can an archive legally provide access to a copy of Color a Dinosaur through emulation?
Kendra Albert 1:05:14
Yeah.
Kendra Albert 1:06:14
So, I’m not familiar with the specific piece of inquiry.
Phil Salvador 1:06:19
Oh, you should go play.
Kendra Albert 1:06:21
Well, you use the word play that makes me think–
Phil Salvador 1:06:23
You should go interact with the digital media.
Kendra Albert 1:06:26
You know, I will say in, I think it was 2018, so it was when the hearings were in person in DC and one of the witnesses that came on behalf of SPN, fantastic, you know, software preservation expert named Lyndsey Moulds, and she literally, like, tried to basically ask the Copyright Office, like, Wait, what does this distinction mean? Right? Like, what is the line between video game and not video game? And the Copyright Office, basically, I would have to go back and look at the transcript, but my recollection of it was basically, like, they were like, Please don’t go there. And I think, like, that’s why I make the joke about angels dancing on the head of a pin, right? Which is to say that I think on some level, it’s not really in anyone’s interest to clarify this. I think, you know, I think, from a functional standpoint, if I were having to, like, actually make an argument in court about this, right? I think what’s hard about it is, I think that oftentimes folks would turn to the platform it’s released on to sort of mean it as a video game, you know, to say, Oh, that’s, that’s what makes it a video game is it’s released for a video game console, or something we associate with being a video game console. But, I mean, of course, that’s, like, not– there are plenty of things that were released for those consoles that are even further from the video game line.
Phil Salvador 1:07:41
Well, I’ll let you know after I interact with this piece of software, if my answer changes.
Phil Salvador 1:07:41
And this even came up from the study, there were, like a series of Game Boy games that were released that were just, like, information for travelers so you could have it in your pocket with you, and like in Nintendo’s own official indexes, those are listed as games because they are licensed by Nintendo, but they’re, like, encyclopedias. It’s a very silly question, but that is the most thoughtful response to a Color a Dinosaur question I think I could have hoped for.
Phil Salvador 1:07:47
Thank you. If you can think of a non-recreational, scholarly use for Color a Dinosaur, please write to us at podcast@gamehistory.org. So as we wrap up here, Kendra, where can people find you? What are you up to?
Kendra Albert 1:08:20
So I’m on Bluesky at @kendraserra. You can find my indie law firm at AlbertSellars.law, and that’s spelled differently than the minor Street Fighter character.
Phil Salvador 1:08:33
The Albert Sellers, you may get it’s a minor character from, I think, the Street Fighter II animated movie. There’s a character named Albert Sellers, who is not–
Kendra Albert 1:08:41
Believe it or not we did discuss this extensively before we named the law firm. So yeah, we’re at albertsellars.law. I’m also at kendraalbert.com and if you’re going to be around GDC, by any chance, I’ll be there probably talking about the same stuff. So we’d love to meet folks.
Phil Salvador 1:08:58
Kendra. Thanks so much for coming back on and clarifying this. To folks who are listening, who may have been dispirited by this ruling, like I said, we’re not giving up, so don’t feel dispirited. We’re gonna keep thinking about these issues. Thanks so much for having me.
Frank Cifaldi 1:09:10
Thank you so, so much for listening to the Video Game History Hour. Brought to you by the Video Game History Foundation. If you have questions or comments for the show, you can email us at podcast@gamehistory.org. The Video Game History Foundation is a 501(c)(3) non-profit, and all of your contributions are tax-deductible. You can support us right now by going to gamehistory.org/donate, or by joining our Patreon at patreon.com/gamehistoryorg, one word. This episode of the Video Game History Hour was produced by Robin Kunimune and edited by Michael Carrell. Thanks so much for listening, and we’ll see you next time.
-Transcript edited by Jeremy Seith