Federal Authorities Stipulate That There's No Entitlement to Borrow Vintage Video Games in the Manner of Library Lending
The vast majority of video games from nearly half a century of gaming history are essentially inaccessible, legally speaking. According to a study conducted by the Video Game History Foundation, approximately 90% of games released before 2010 can't be bought. Protecting and preserving this gaming history has been a priority for enthusiasts, but the U.S. Copyright Office has posed a significant challenge. On Friday, the federal government declared that individuals or researchers have no rights to access old games under the Digital Millennium Copyright Act (DMCA).
Organizations such as the VGHF and the Software Preservation Network have been pushing for an exemption to the DMCA, allowing legal access to old games. The current DMCA policy prevents remote access to defunct games under copyright without a license, even though they're not on sale. Current regulations also limit libraries and repositories of old games to granting access to just one person at a time, in person.
The exemption proposal put forth by the VGHF would have granted multiple individuals simultaneous access to game content stored in museums, archives, and libraries. This would have resembled checking out an ebook from a library, allowing players to explore a slice of video game history. The VGHF and SPN argued that if a museum held several copies of a game, it should be allowed to grant multiple users access to the game, in line with the number of copies available.
In the decision dated October 18, the Copyright Office's Director, Shira Perlmutter, agreed with multiple industry groups, including the Entertainment Software Association. She recommended the Library of Congress maintain the current restrictions, which are laid out in Section 1201 of the DMCA. This section restricts unauthorized access to copyrighted works, including games, but allows the Library of Congress to grant exceptions to certain classes of people to bypass these restrictions.
In a statement, the VGHF expressed disappointment over the industry's opposition, referring to lobbying efforts from rightsholders as a major obstacle to progress. The ESA argued against any combination of limitations that would allow remote access to classic games.
Preservationists suggested implementing copyright notices pop-ups and limits on access for anybody checking out a game from a museum repository. They also proposed using technological controls, like a specialized distribution platform for streaming. However, industry groups argued that museums lacked the necessary safeguards to prevent users from sharing the games once acquired. They also claimed that there's a substantial market for older games, and a new, free library would jeopardize this market.
The Copyright Office agreed with the industry groups, stating that the safeguards proposed by the VGHF were not specific enough to prevent potential market damages. Industry groups contend that libraries that lend books have barely impacted the literary industry, since they often lead to increased sales through word-of-mouth and limited availability. However, the video game industry seems blinded to this benefit when it comes to third-party preservationists.
The question remains: if there's such a significant market for classic games, why are so many of them unavailable for purchase? The game industry's rigid stance forced researchers to explore unconventional methods to access most out-of-print video games.
The tech community is actively advocating for the use of technology to preserve video game history, believing that it holds immense potential for the future of gaming. Despite the challenges posed by the Digital Millennium Copyright Act (DMCA), organizations like the VGHF and the Software Preservation Network are pushing for an exemption to provide legal access to old games.
