The US Copyright Office has denied a Digital Millennium Copyright Act (DMCA) exemption request that would have allowed remote access to games that are no longer in print
An effort led by the Video Game History Foundation (VGHF) aimed at facilitating the preservation of video games has been denied by the US Copyright Office. This request, if granted, would have modified provisions of the DMCA to aid game preservation.
Since 2021, the VGHF, in collaboration with the Software Preservation Network, has advocated for a campaign permitting libraries and archives to provide remote access to their digital games that are no longer commercially available.
According to their statement, current DMCA Section 1201 restrictions prevent these institutions from bypassing copy protection, thereby hindering remote access for researchers.
The Copyright Office's rejection was outlined on page 191 of the Registers' Recommendation of Copyrights. It referenced feedback from the Entertainment Software Association (ESA) indicating that VGHF's proposal lacked clear criteria regarding user identification and the purpose of game access.
Shira Perlmutter, the register of copyrights and director of the US Copyrights Office, remarked that the preservation advocates did not sufficiently demonstrate that copying content to enable simultaneous usage in a computer program class would be justified as fair use.
Moreover, Perlmutter stated that the proposed off-site usage in the video game category was not convincingly shown to adhere to fair use principles.
Criticism was also directed at VGHF's approach to emulation, being described as inconsistent and inadequately addressed in their proposal.
During discussions with the Copyright Office, VGHF reported that the ESA unequivocally opposed any condition allowing remote game access for research purposes.
The ESA had previously opposed an amendment to the DMCA in 2018, which was intended to facilitate the preservation of discontinued online games.
VGHF argued that the unwavering stance of the gaming industry, unsupported publicly by ESA members, compels researchers to consider alternative, non-legal avenues to access most out-of-print games.
The organization remains committed to promoting greater accessibility and legal measures for game preservation while engaging with the gaming industry to raise internal awareness of these matters.
In July, VGHF released findings indicating that 87% of classic video games face critical endangerment due to challenges in maintaining their preservation.
