The Digital Millennium Copyright Act (DMCA) will not grant an exemption for video games in terms of preservation, the US Copyright Office announced last week, showing that we still have a long way to go. tour to help people experience classic titles that may not be available to play anywhere.
The Software Preservation Community, along with the Video Recreation Historical Basis, filed a petition to expand DMCA exemptions for software such as video games. This specific effort was intended to provide an easier way to access games through remote means that might otherwise be protected by the DMCA for research and other academic purposes.
The US Copyright Office and even the Library of Congress have made comments in the past about the importance of game preservation, but the Office was concerned that proposed guidelines on who can access retro games and emulated ones used for academic or research purposes could still harm the market. This, in turn, does nothing to stop the problems with strikes and copyright takedowns plaguing retro gaming enthusiasts and preservationists.
“While the Registry appreciates that proponents have suggested broad safeguards that could deter recreational use of video games in some cases, it believes that such requirements are not specific enough to conclude that they would prevent harm to the market.” the decision read. Other factors in the ruling include inconsistencies in documentation and testimony from the parties involved, along with recent remasters, remakes, and other releases that may bring the games to modern audiences.
In a statement released Friday, Phil Salvador, library director of the Video Recreation Historical Basis, writes that the organization is disappointed by the decision and that its efforts, along with those of other organizations, have been hampered by pressure groups such as the Leisure Software program Affiliation (ESA).
“Unfortunately, foyer efforts by rights holder groups continue to hold back progress. During our hearing with the Copyright Office, the [ESA] “They declared that they would never support remote access to games for research purposes under any conditions,” writes Salvador. “The absolutist position of the gaming industry… forces researchers to explore extralegal methods to access the vast majority of out-of-print video games that would otherwise be unavailable.”
The foundation published a report last year that found 87% of classic games (or titles typically available on abandoned, neglected or dormant platforms) were not available to play or access through usual means. The number of games considered “critically endangered” by the studio has increased with the closure of the Wii U and 3DS eShops and the Xbox 360 store in 2023.