The defenders of video game preservation have lost a legal battle to investigate games remotely.
The United States has expressed its rejection.
Scholars researching video games face the challenge of studying titles that are no longer for sale, often involving long journeys to do so legally. In this context, the U.S. Copyright Office has denied a request from video game preservationists seeking to allow libraries, archives, and museums to temporarily lend virtual copies of these games to users. Kendra Albert, who presented the case on behalf of the Software Preservation Network and the Library Copyright Alliance, noted that the preservationists' requests were moderate: "It was something that basically already exists for all kinds of special collections in libraries: the library reviews the request, ensures that it is not harmful, and allows access to the work."
Despite the Copyright Office allowing institutions to lend other types of media and software programs remotely, video games continue to receive differentiated treatment. Albert expressed her frustration, considering that the mechanisms commonly used to access various materials are not sufficient for video games. Opponents of the measure, primarily the Entertainment Software Association (ESA), argued that it could lead to people taking advantage of libraries to play for free, thereby affecting the market for classic video games. They also contended that preservationists had not established adequate restrictions to ensure that uses would be limited to teaching, research, or scholarship.
Advocates for remote access argued that the vast majority of video games are never re-released, and those that are often get modified or remastered in such a way that they lose value for study. However, the Library of Congress was not persuaded and determined that there was not enough evidence to show that remote access to video games would not infringe copyright, highlighting the risk of harm to the market associated with legacy video games.
Albert expressed her disillusionment with this outcome, noting that it seemed the Copyright Office disregarded information presented by some video game publishers, who claimed that limited remote access would not harm the market for their re-releases. If the request had been approved, it would not have been a permanent change, as there is an opportunity to request specific exceptions to Section 1201 of the Digital Millennium Copyright Act every three years once they are renewed.
The Office did renew the exemption allowing libraries and institutions to preserve video games, as well as a permit for individuals to play these titles in person. Among the proposed DMCA exceptions requested by the preservationists were video games in the form of computer programs that had been legally acquired and did not require access to an external server to play, provided they were not commercially available.
The ESA issued a statement following the ruling, acknowledging the importance of preserving video games and protecting related hardware, emphasizing that the decision reaffirms the current level of preservation. On the other hand, the Video Game History Foundation condemned the ESA's stance, characterizing their lobbying efforts as an obstacle to progress in video game preservation.
