It’s 2024 and the ESA is still fighting game preservation, forecasting a depraved ‘online arcade’

Don't threaten us with a good time?


If you’re a longtime MOP reader, you might remember that back in the late teens, we followed the Electronic Frontier Foundation’s efforts to petition the Library of Congress and US Copyright Office to codify DMCA exemptions that allowed game preservation experts to cut through DRM and set up archival emulators for abandoned online games. It was a big deal at the time, and the Library of Congress wound of granting that DMCA exemption in 2018, which essentially meant video game museums could legally get dead games (even MMORPGs) up and running again for educational purposes.

It wasn’t entirely a feel-good story, however, as the ESA fought the petition tooth and nail. The video game trade lobby – which represents megacorps, not gamers – issued a massive comment in opposition to the proposal, and it was wild. I’ll quote my own summary because I’m always in favor of letting the ESA tell on itself.

“Specifically, the ESA argues that the [Museum of Art and Digital Entertainment] proposal would require ‘the creation of substitute game-service environments,’ violate anti-trafficking provisions, and ‘dissolve any meaningful distinction between preservationists and recreational gamers,’ thereby inviting ‘substantial mischief.’ Because obviously, unless you have your special archivist badge approved by the ESA, you just want to play dead games like some sort of reprobate dead game trafficker. Indeed, it characterizes MADE itself as a ‘clubhouse where people gather to play games,’ suggesting its goal is ‘enabling public gameplay, rather than preservation for serious scholarly purposes.’ While the ESA further claims that existing video game preservation efforts are sufficient, it’s a hard sell in the MMORPG arena in particular.”

As we snarked a few years later, if you love video games so much that you run a nonprofit video game museum and defend their history in court, and the worst thing the ESA can say about you is that you like games too much, congrats, you’re the good guy.

Of course, that was six years ago – surely the ESA has come around since then? Not a chance! In fact, the ESA was up to its old tricks this past April during a fresh exemption hearing before the US Copyright Office. Regulators are considering a 2023 Software Preservation Network proposal asking that the DMCA exemption be expanded to permit researchers remote access to rescued and archived games. In other words, historians wouldn’t need to travel to a physical location to view the extremely dead games they’re studying.

And damn if ESA attorney Steve Englund isn’t back in the middle of it, repeating all the same bad takes from 2018: He insists that academic institutions wouldn’t adequately restrict access to legitimate researchers, suggesting that the gaming public will skirt incompetent institutional security procedures to access these dead games through tools meant for the researchers he keeps insulting, turning the whole system into some depraved “online arcade.”

“We’ll likely see a situation like the ‘online arcade’ that I’ve been warning about for the last several proceedings,” he warns, very seriously, lambasting the very idea of “recreational play.”

Heaven forfend! People logging into a library copy of a game from 1999 and having fun? How dare!

He also claimed that publishers can be relied upon to preserve their games, but any MMORPG player can tell you they definitely don’t, and the Video Game History Foundation’s assertion that 87% of games from earlier than 2010 have not been preserved should horrify everyone.

There’s no call to action here, though you can certainly join the unrelated Stop Killing Games initiative, which is taking a more proactive and gamer-led approach to influencing regulation. It’s mostly a reminder that there are plenty of good people still trying to get our industry’s art preserved and ensure that both the public and academics can still see it – while the organizations that purport to lead are the ones fighting hardest against preservation out of nothing but spite and greed.

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