US copyright law ’forces researchers to investigate extra-legal methods’ for game preservation, claim historians who were 'disappointed’ after being denied a DMCA exception

The Video Game History Foundation is "disappointed by the US Copyright Office’s refusal to grant an exemption under the Digital Millennium Copyright Act to support videogame preservation. They say the game industry’s resistance to the change "forces researches to explore extra-legal ways to access the vast number of out-of print video games."

The VGHF and the Software Preservation Network have been working on a petition to change DMCA regulations to allow libraries and archives remote access to "out-of-print" games in their collection. "Under current anti-circumvention regulations in Section 1201 DMCA, libraries or archives are unable break copy protection of games to make them remote accessible to researchers," VGHF stated.

The Entertainment Software Association was among the agencies that reacted strongly to the argument for exemption. They argued that the proposed controls on who would be able to access exempted programs and why were unclear. The ESA stated that the "human review" requirement is "at best incomplete." They also said that by not including specific requirements, those who support the exemption are "trying to retain almost complete discretion on how they will provide access to preserved games."

The ESA claimed that there is still a significant market for classic video games, and that allowing widespread remote access to preserved videos with minimal supervision would pose a serious threat to a market that is important.

Shira Perlmutter is the director of the US Copyright Office and the register of copyrights. She was not convinced by the arguments for game preservation. Shira Perlmutter ruled that those who advocated videogame preservation had not "met their burden of demonstrating that the requested use will or is likely to be non-infringing."

The ruling states that "Proponents of videogame preservation have not met their obligation to show that reproducing works in order to allow multiple simultaneous uses in the computer program category is likely to fair." The Register also finds that the proponents of videogame preservation have not met their obligation to show that the proposed off premises uses in the computer program class are likely fair.

In response to this decision, the VGHF stated that it "has no regrets about going though this process." It also added that its efforts had raised awareness about videogame preservation. It did not hold back in expressing its disappointment.

The foundation stated that lobbying efforts of rightsholder groups continue stall progress. "During our hearings with the Copyright Office the Entertainment Software Association (ESA), declared that they would not support remote game access under any circumstances.

The ESA's members have refused to publicly support the absolute position of the game industry, which forces researchers to explore extralegal methods to access a vast majority out-of print video games that would otherwise be unavailable.

Despite its loss, the VGHF stated that it was "not done fighting."

The org stated that it would continue to advocate for greater access to video games and for legal protections. It would also work with the members of the gaming industry in order to raise awareness within the industry.

There is hope for the future. DMCA exemption rules update every three years. The ruling recommends "clarifying" the single copy restriction in proposed rule changes. This "will address perceived ambiguity within the current exemption while serving the single user limitation's intended goal to minimize the risks of substitutional uses."

Videogame preservation is becoming more urgent. In a study from 2023, the Video Game History Foundation stated that 87% of videogames were "critically endangered," which means they are effectively inaccessible unless you pirate them or travel to an authorized archive to play them on site.