The US Copyright Office has recently rejected an exemption proposed by the Video Game History Foundation (VGHF) that would have supported game preservation efforts. This decision highlights the complex legal challenges faced by institutions and organizations dedicated to preserving the rich history of video games.

Unlocking the Past: The Fight for Game Preservation

Preserving the Digital Legacy

The VGHF, in collaboration with the Software Preservation Network, has been working tirelessly since 2021 to "allow libraries and archives to remotely share digital access to out-of-print games in their collections." This initiative aims to address the growing concern that a significant portion of video game history is at risk of being lost due to the inability to access and preserve these digital artifacts.

According to a study conducted by the VGHF last July, a staggering 87% of video games are "critically endangered," as preserving them has become increasingly difficult. This alarming statistic underscores the urgent need for legal frameworks that enable institutions to fulfill their role as custodians of our cultural heritage.

The DMCA Roadblock

The VGHF's proposed exemption to the Digital Millennium Copyright Act (DMCA) was intended to address the limitations imposed by the anti-circumvention rules in Section 1201 of the DMCA. Under the current legislation, these institutions "are unable to break copy protection on games in order to make them remotely accessible to researchers."

The Copyright Office's decision to reject the exemption was based on concerns raised by the Entertainment Software Association (ESA), which suggested that the VGHF "[did] not propose a clear requirement to know who the users are or why they want to access a game." The Copyright Office also found that the VGHF's stance on emulation was "inconsistent and incomplete and the technologies are not addressed in the exemption text."

The Industry's Stance: Preservation or Profit?

During the hearing with the Copyright Office, the VGHF claimed that the ESA "declared [it] would never support remote game access for research purposes under any conditions." This stance has been a point of contention, as the VGHF believes it "forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable."

The ESA's opposition to changes in the DMCA aimed at preserving abandoned online games in 2018 further highlights the industry's reluctance to embrace game preservation efforts. The VGHF has expressed its intention to continue advocating for greater access and legal allowance for video game preservation, while also working with members of the game industry to increase awareness around these critical issues.

The Path Forward: Balancing Preservation and Profit

The rejection of the VGHF's exemption by the Copyright Office underscores the need for a more nuanced and collaborative approach to video game preservation. While the industry's concerns about unauthorized access and potential revenue loss are understandable, the preservation of our digital cultural heritage should be a shared priority.

Striking a balance between the legitimate interests of copyright holders and the needs of researchers, historians, and the public will require open dialogue, compromise, and a willingness to explore innovative solutions. By working together, the video game industry, policymakers, and preservation advocates can develop a framework that safeguards the industry's intellectual property while enabling the responsible and controlled access necessary for preserving our collective gaming legacy.