Earlier this year, the US Copyright Office held a hearing regarding a petition that had been in the works for three years. Today, they decided not to approve a new exemption under the Digital Millennium Copyright Act (DMCA) aimed at preserving video games. This exemption was proposed by the Software Preservation Network, with backing from The Video Game History Foundation, and sought to enable libraries to offer remote access to out-of-print video games for academic research. The proposal was fortified by an extensive study from the Video Game History Foundation, which highlighted that only 13% of games released in the U.S. before 2010 remain available in any format today. Interestingly, several companies in the game reissue business supported the petition, suggesting that it wouldn’t harm their market but could actually stir up more interest in classic games.
However, not everyone saw it this way. The Entertainment Software Association argued that the exemption could damage the potential for reissuing old games, despite contrary views from companies like Limited Run Games and Antstream Arcade. They maintained that the unavailability of the remaining 87% of older games was a result of deliberate business strategies and windowing practices. Yet, the study provided evidence that these games are mainly inaccessible due to intricate licensing and rights issues, challenges specific to the video game industry that are unlikely to be resolved easily.
Interestingly, such restrictions aren’t found in other types of media, including non-video game software. What’s more, there’s no official clarity on what exactly defines a video game for this purpose.
For a detailed response from the Video Game History Foundation on this ruling, you might want to check out their full statement.
