If you were hoping to research out-of-print video games and wanted to get access to a copy remotely, that’s been made difficult thanks to the Digital Millennium Copyright Act (DMCA), and unfortunately it looks like that will remain the case thanks to a recent ruling by the US Copyright Office that denied an exemption to let libraries, museums, and other archives provide remote digital access to video games for the purposes of research.
The government office’s ruling states that there wasn’t enough clarification by petitioners for specific exemptions related to remote access and whether a single person could access a title; it ruled that keeping those limitations intact protects fair use, halts “market harm,” and eliminates the “significant risk” that games would be checked out “for recreational purposes” instead of research.
The ruling also cited other factors in the final decision including industry plans to re-release or grant access to old titles via subscription services and evidence of a “substantial market for older video games.”
While this ruling very obviously focuses on out-of-print physical game copies from older console and PC systems, it can also harm the efforts by preservationists, fans, and researchers to maintain online worlds – particularly since these kinds of games can be only played online to begin with.
The Video Game History Foundation expressed its disappointment in the ruling, blaming industry lobbyists and major industry forces like the Entertainment Software Association for swaying the copyright office’s decision and blocking progress, but it resolves to continue the fight.
Technology lawyer Kendra Albert, meanwhile, argues that the copyright office did not bother to engage with proponent evidence in a serious manner. “It is not fair to video game scholars and preservationists to pretend that this is about creating sufficiently stringent exemption rules when the Copyright Office seems to have ignored the evidence that contradicts their prior beliefs,” they write. “But anyway, I guess, we tried.”
