The Looming Extinction of Video Game History: A Copyright Battle for the Preservation of Digital Culture
The vast majority of video games from the past 50 years are effectively inaccessible to the public. A chilling statistic from the Video Game History Foundation (VGHF) reveals that nearly 90% of games released before 2010 are unavailable for legal purchase. This alarming situation underscores a critical struggle – the fight to preserve video game history in the face of restrictive copyright laws and the seemingly unyielding opposition of the video game industry itself. The recent denial of a crucial DMCA exemption further exacerbates this crisis, leaving a significant part of our digital cultural heritage at risk.
This article delves into the complexities of this issue, exploring the legal battles waged by preservationists, the arguments presented by industry groups, and the potential consequences of inaction. The core problem revolves around Section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits circumventing technological protection measures (TPMs) designed to control access to copyrighted works. While the DMCA allows for exemptions under certain circumstances, the recent rejection of an exemption related to video game preservation has left many concerned about the future of digital game archives and the broader impact on cultural preservation.
The Fight for Preservation: A David vs. Goliath Struggle
The VGHF and the Software Preservation Network (SPN) have been leading the charge for legal access to video game history. They proposed a DMCA exemption that would allow libraries, museums, and archives to provide remote access to games in their collections. Their proposal was carefully constructed with robust safeguards in place:
- Full-screen copyright notices: These would be prominently displayed to users during gameplay to reinforce copyright awareness.
- Limited access durations: Restrictions on how long users could access a game would further mitigate potential copyright infringement.
- Technological controls: Games would be accessed only via controlled platforms, limiting potential unauthorized distribution channels.
The essence of their argument rests on the fundamental principle that multiple copies of a game held by an institution should allow multiple simultaneous users, mirroring the way libraries handle physical books. As the VGHF stated in their October 2024 statement, "If a museum has ten copies of a game, it should be able to let ten people play the game at once." This seemingly reasonable proposal, however, was met with strong opposition.
Industry Resistance and the DMCA’s Stifling Impact
The Entertainment Software Association (ESA), representing major video game publishers and developers, actively opposed the exemption request. This opposition boils down to two key arguments:
Insufficient safeguards: The ESA argued that the proposed measures did not adequately prevent unauthorized distribution and piracy. Their position, as summarized by an ESA attorney to Ars Technica, was stark: “I don’t think there is at the moment any combinations of limitations that ESA members would support to provide remote access.” This statement highlights an apparent intransigence towards finding even a compromise solution.
- Market Threat: The ESA also contended that a freely accessible library of classic games would negatively impact the market for new and classic game re-releases, potentially jeopardizing a "substantial market" for these titles. This points to a fundamental misunderstanding of the role of libraries in other media industries. Do libraries lending Shakespeare negatively impact the sales of new Shakespeare releases? Not typically; in reality it drives readership and appreciation.
The Copyright Office’s Decision and Its Implications:
Copyright Office Director Shira Perlmutter ultimately sided with the industry arguments, recommending against granting the requested exemption. In her decision, she acknowledged the suggested safeguards but found them insufficient to address concerns about market harm. "While the Register appreciates that proponents have suggested broad safeguards that could deter recreational uses of video games in some cases, she believes that such requirements are not specific enough to conclude that they would prevent market harms," she stated in her October 18th decision. This dismissal reinforces the challenges faced by preservationists in navigating the complexities of copyright law and the powerful influence of industry lobbying efforts.
The Absurdity of the Current Situation: Piracy as a Necessary Evil?
The present situation is absurd. While industry groups claim a "substantial market" for classic games justifies their opposition to preservation efforts, the reality is that a vast majority of these games are simply unavailable for legal purchase. This reality, unfortunately, pushes players and researchers towards piracy and emulation as the only means of accessing the historical and cultural artifacts housed in these old game cartridges. The VGHF accurately points out the paradoxical result of this position: “The game industry’s absolutist position… forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable."
A Missed Opportunity for Collaboration: Mutual Benefit vs. Self-Sabotage
There’s a distinct lack of understanding on the part of the video game industry regarding the potential advantages of supporting video game preservation efforts. For many established authors, libraries are seen as a valuable tool that helps broaden their readership. This increased awareness can in turn drive sales of their books. Yet, the video game industry seems to fail to grasp this analogous principle. A readily-available library of classic games is far more likely to increase interest and appreciation for games, potentially driving demand for remakes, re-releases, and related merchandise. By stubbornly clinging to an approach that limits access, the industry is potentially shooting itself in the foot.
The Path Forward: A Call for Compromise and Collaboration
The current impasse necessitates a shift in approach. A collaborative dialogue between video game preservationists and the industry is critical to fostering a future where digital game history can be freely and legally accessed. Perhaps a modified approach – one that addresses some of the industry’s concerns – could lead to a sustainable and agreeable solution. This might incorporate:
- Phased access: Start with a limited pilot project to test various access models.
- Targeted exemptions: Instead of a blanket exemption, focus on specific genres or periods.
- Enhanced technological solutions: Collaborate on developing technologies to better control and monitor access to these protected works.
- Museum-specific approaches: Tailor the level of access based on each institution’s security policies.
The struggle to preserve video game history is far from over. The recent setback highlights the vital need for increased advocacy, awareness, and a willingness to engage in constructive dialogue between all stakeholders. The preservation of our digital cultural heritage is far too significant to be sacrificed to restrictive interpretations of copyright law and industry short-sightedness. The time for action is now, before an irreplaceable part of our digital world is irretrievably lost.
