VGHF, Libraries Lose Again On DMCA Exemption Request To Preserve Old Video Games

Another lobbyist win over common sense, it seems. Earlier this year, we discussed a group of video game preservationists, led by the Video Game History Foundation, seeking DMCA exemptions that would allow groups to curate, preserve, and make available for streaming antiquated video games for purposes of study. The chief opposition to the request came from the Electronic Software Association (ESA), a lobbying group that has staunchly opposed any carveouts in copyright law that would allow for these sorts of preservation and study efforts.

Now, if there was one key takeaway from that last post, it’s the following. The ESA and groups like it are very good at saying “no”, but absolutely terrible at providing any alternatives it would support for doing this sort of preservation work. The video game space is one in which the overwhelming majority of titles published have not been preserved in any meaningful way. If those titles are allowed to simply disappear into the ether, it is a flat negation of the bargain that is copyright law to begin with, which is for a limited monopoly on creative output with that output eventually going into the public domain. Disappeared content cannot enter the public domain.

Unfortunately, thanks to those lobbying efforts that offer all roadblocks and no solutions, the US Copyright Office has denied once again the request for these copyright carveouts.

In announcing its decision, the Register of Copyrights for the Library of Congress sided with the Entertainment Software Association and others who argued that the proposed remote access could serve as a legal loophole for a free-to-access “online arcade” that could harm the market for classic gaming re-releases. This argument resonated with the Copyright Office despite a VGHF study that found 87 percent of those older game titles are currently out of print.

“While proponents are correct that some older games will not have a reissue market, they concede there is a ‘healthy’ market for other reissued games and that the industry has been making ‘greater concerted efforts’ to reissue games,” the Register writes in her decision. “Further, 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.”

The Copyright Office went on to note that, while this carveout exists already for purely functional software, the expressive nature of video games makes them different. But that’s fairly silly. There are already carveouts to copyright law for expressive works, specifically when it comes to retaining them for preservation and study efforts. That’s essentially how, you know, libraries work. This all comes down to opening those avenues up remotely, via streaming or remote sharing purposes. Why it should be just fine for researchers to hop on a airplane to sit in a university library and study these games, but it’s suddenly verboten to do so remotely is flatly beyond me, especially if there are safeguards in place to keep from this all turning into some free-for-all remote arcade.

And then there is the additional confusion of the Copyright Office arguing that part of its concern is over the association of emulation software with piracy. In a particularly laughable bit within its decision, the Copyright Office cited as its source of this association the founder of the VGHF himself, and the citation appears to have been taken entirely out of context.

In an odd footnote, the Register also notes that emulation of classic game consoles, while not infringing in its own right, has been “historically associated with piracy,” thus “rais[ing] a potential concern” for any emulated remote access to library game catalogs. That footnote paradoxically cites Video Game History Foundation (VGHF) founder and director Frank Cifaldi’s 2016 Game Developers Conference talk on the demonization of emulation and its importance to video game preservation.

“The moment I became the Joker is when someone in charge of copyright law watched my GDC talk about how it’s wrong to associate emulation with piracy and their takeaway was ’emulation is associated with piracy,'” Cifaldi quipped in a social media post.

It’s valid to wonder aloud whether the Copyright Office has any freaking idea what in the hell it’s talking about at this point. Or whether, as at least one proponent of the carveouts quipped, the government was even taking the request all that seriously.

Lawyer Kendra Albert, who argued vociferously in favor of the proposed exemption earlier this year, wrote on social media that they were “gutted by the result… Speaking on behalf of only myself, and not any of my clients, I do believe we made the best case we could that scholarly access to video games that are not commercially available does not harm the market. I do not believe that this evidence was seriously engaged with by the Copyright Office.”

Again, silly. Researchers in other mediums, such as books and films, already have access digitally to their subjects of study in many cases. For some reason, despite its acknowledgement that video games are likewise works of expressive art, the Copyright Office has simply decided it’s to be different with gaming.

Because reasons, I guess.