Preserving Video Game History: The Ongoing Battle for Remote Access

In a decision that has left many video game scholars and preservationists disappointed, the US Copyright Office has denied a request to allow libraries, archives, and museums to lend out virtual copies of video games that are no longer commercially available. This ruling highlights the ongoing challenges in balancing the need for preservation with the concerns of the video game industry.

Unlocking the Past: The Fight for Remote Access to Vintage Video Games

The Preservationists' Plea

Video game scholars and preservationists have long advocated for the ability to remotely access and study vintage video games that are no longer readily available. Kendra Albert, representing the Software Preservation Network and the Library Copyright Alliance, argued that this request was a reasonable extension of the existing practices that allow libraries and archives to lend out other forms of media and software programs. The preservationists contended that the vast majority of video games are never re-released, and those that are often undergo changes that make them less valuable for scholarly study.

The Industry's Resistance

However, the Entertainment Software Association (ESA), which represents video game publishers, strongly opposed the request. The ESA argued that allowing remote access to video games could lead to people taking advantage of libraries to play games for free, potentially damaging the market for classic video game titles. The ESA also claimed that the preservationists' proposed restrictions were not sufficient to ensure that the remote access would be limited to teaching, research, or scholarship uses.

The Copyright Office's Ruling

Ultimately, the Librarian of Congress was not convinced by the preservationists' arguments. The Copyright Office concluded that the proponents had not adequately demonstrated that permitting off-premises access to video games would be non-infringing. The office also cited the greater risk of market harm if the video game exemption's premises limitation were removed, given the existing market for legacy video game titles.

A Setback for Video Game Preservation

The decision has been met with disappointment from the video game preservation community. Kendra Albert expressed her frustration, noting that the Copyright Office seemed to disregard evidence from some video game publishers who had testified that granting limited remote access would not impact the market for their video game re-releases.

The Ongoing Struggle for Preservation

The Copyright Office's ruling is a setback for video game preservation efforts, but it is not the end of the story. Every three years, groups have the opportunity to lobby the Library of Congress for specific exemptions to the Digital Millennium Copyright Act (DMCA), and these exemptions must be renewed regularly. The Copyright Office did renew the exemption that allows libraries and institutions to preserve video games and lets individuals play them in person. Additionally, the office granted an exemption that should finally make it legal to repair malfunctioning McDonald's ice cream machines.

The Importance of Preserving Video Game History

The preservation of video game history is crucial, as these digital artifacts hold immense cultural and historical significance. Video games have evolved from simple arcade titles to complex, immersive experiences that have shaped popular culture and influenced various industries. By denying the request for remote access, the Copyright Office has missed an opportunity to facilitate scholarly research and ensure that this important part of our cultural heritage is not lost to time.

The Path Forward

While the recent decision is a setback, the video game preservation community remains committed to finding ways to overcome the legal and technological barriers that hinder their efforts. As technology continues to evolve, and as the importance of preserving digital cultural heritage becomes more widely recognized, the hope is that future battles for video game preservation will be met with greater understanding and support from policymakers and industry stakeholders.