Video game preservationists have lost a legal fight to study games remotely

6 days ago 6

When video game scholars want to study games that are no longer on sale, they sometimes have to drive many hours to do it legally — and that won’t be changing anytime soon. The US Copyright Office has just denied a request from video game preservationists to let libraries, archives and museums temporarily lend individuals some virtual, remotely accessible copies of those works.

Kendra Albert, who made the argument on behalf of the Software Preservation Network and the Library Copyright Alliance, says preservationists weren’t asking for a lot: “It was the thing that basically exists for all kinds of special collections in libraries: the library reviews the request, makes sure it’s not harmful, and allows access to the work.”

While the Copyright Office already lets institutions lend out other forms of media and even software programs remotely — so long as they don’t lend out more copies than they own — video games are still treated differently as of today.

“It’s frustrating that the process that’s widely used to access all sorts of different materials is not good enough for video games,” Albert tells The Verge.

Opponents, most prominently the Entertainment Software Association (ESA) which represents video game publishers, argued that people would take advantage of libraries to play games for free, that they would damage the market for classic video games, and that preservationists didn’t have “appropriately tailored restrictions to ensure that uses would be limited to teaching, research, or scholarship uses.”

While the preservationists extensively argued that the vast, vast majority of games are never re-released in any form, and that those that do are typically changed or remastered in ways that make them less valuable for study, the Librarian of Congress wasn’t convinced, concluding:

The Register concludes that proponents did not show that [...] permitting off-premises access to video games are likely to be noninfringing. She also notes the greater risk of market harm with removing the video game exemption’s premises limitation, given the market for legacy video games.

“I’m gutted by this result,” Albert wrote on Bluesky, adding that it seemed the Copyright Office didn’t bother to consider evidence from some video game publishers — who testified that granting limited remote access wouldn’t impact the market for their video game re-releases.

If the Copyright Office had granted the request, it wouldn’t have been a permanent change. Every three years, groups get a chance to lobby the Library of Congress for very specific exemptions to section 1201 of the Digital Millennium Copyright Act, and those exemptions have to be renewed every three years.

The Copyright Office did renew the exemption that lets libraries and institutions preserve video games to begin with, and lets individuals play them in person. It also granted an exemption that should finally make it legal to repair busted McDonalds ice cream machines.

Here is the actual proposed DMCA exemption that game preservationists asked for:

Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, that do not require access to an external computer server for gameplay, and that are no longer reasonably available in the commercial marketplace, solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage.

Any electronic distribution, display, or performance made outside of the physical premises of an eligible library, archives, or museum of works preserved under this paragraph may be made only for a limited time and after the eligible institution acts to ensure that users seeking off-premises access to works are doing so primarily for the purposes of private study, scholarship, teaching, or research by: 1) specifically determining that the user’s interest is private study, scholarship, teaching, or research, 2) instituting access restrictions appropriate to the nature of the use and the material, and 3) notifying users that they are receiving access to copyrighted material subject to adherence with applicable laws.

Here’s the ESA’s statement on its victory:

We recognize the importance of preserving video games and protecting game hardware given their significance in culture and society. With today’s decision, the U.S. Copyright Office confirms that the current level of video game preservation is appropriate and recognizes that video games present unique copyright concerns that should always be taken into consideration. We thank the Library of Congress and the Copyright Office for supporting existing copyright protection, which is critical to increasing access to and inspiring new video game experiences for players, while also protecting artists and their creative works.

The Video Game History Foundation has its own statement condemning the ESA’s position, including this passage:

Unfortunately, lobbying efforts by rightsholder groups continue to hold back progress. During our hearing with the Copyright Office, the Entertainment Software Association (ESA) declared that they would never support remote game access for research purposes under any conditions. The game industry’s absolutist position—which the ESA’s own members have declined to go on the record to support—forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable.

And, here’s the relevant section of the Copyright Office’s final rule today. You can read more of the reasoning behind it here, starting at the bottom of page 170.

Page 28 of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies