Preservation of classic video games has hit a significant roadblock. The U.S. Copyright Office has turned down a request from video game preservation advocates to enable libraries, archives, and museums to lend older video games remotely. This decision means that scholars studying retro and out-of-print games must continue travelling to specific institutions to access these works legally. The ruling, viewed as a setback for preservationists, concerns copyright and market implications for the video game industry.
The push for remote access to classic games
Advocates of game preservation have long argued that video games deserve the same access rights as other media, such as books and films, which libraries can lend to scholars remotely. Kendra Albert, representing the Software Preservation Network and the Library Copyright Alliance, explained the request: โIt was the same as the process thatโs already in place for special collections in libraries: a library reviews the request, checks itโs appropriate, and grants access if it meets requirements.โ Albert and other preservationists argue this process would allow libraries to offer limited, remote access without risking copyright violations.
The Copyright Office permits libraries to lend out physical or downloadable copies of other media, provided they do not exceed the number of copies they own. However, video games are now treated differently. โItโs frustrating that the widely used access process for various materials doesnโt apply to video games,โ Albert said.
Why did the copyright office reject remote access
The Copyright Office’s decision to reject this request came in response to objections from the Entertainment Software Association (ESA), representing major video game publishers. The ESA expressed concern that remote access might encourage individuals to play classic games for free, potentially harming the re-released market. The association argued that preservationistsโ proposal lacked sufficient restrictions to limit use strictly to educational, research, or scholarship purposes.
While preservation advocates countered that most classic games remain unavailable for purchase, with only a few exceptions where games are remastered or modified, the ESA remained unconvinced. The Copyright Office’s final ruling echoed the ESAโs concerns, stating that the proposed exemption lacked safeguards to prevent market impact. It also argued that allowing off-premises access to preserved video games could harm the legacy games market, especially as there is growing demand for re-releases of older titles.
Following the ruling, Albert voiced frustration, saying the Copyright Office disregarded testimony from some publishers who believed remote access would not negatively impact their sales. Albert expressed disappointment with the social platform Bluesky, stating, โThis result guts me,โ and suggested the Copyright Officeโs decision might have ignored relevant evidence supporting limited remote access.
This request, if granted, would have been temporary. Under the Digital Millennium Copyright Act (DMCA), groups can petition the Library of Congress every three years for specific exemptions to help institutions make preserved works accessible. Each exemption must then be reviewed and renewed. The Copyright Office did renew an existing exemption allowing libraries to preserve games on-site, enabling visitors to play them on-premises. In addition, it granted a separate exemption allowing for the repair of ice cream machinesโa small victory for advocates seeking practical DMCA exemptions.
A broader impact on cultural preservation
The denial has left the preservation community questioning the future of access to historical video game content. The Video Game History Foundation, a prominent advocate for preserving classic games, issued a statement condemning the ESAโs stance. The Foundation criticised the ESAโs โabsolutist position,โ which forces researchers to use unofficial methods to access many out-of-print otherwise inaccessible games. โLobbying efforts by rightsholder groups continue to hold back progress,โ the Foundationโs statement noted, criticising the ESA for blocking advancements in preservation efforts for the sake of commercial protection.
For its part, the ESA defended its position, emphasising the importance of balancing preservation with protecting copyright and industry interests. In a statement, the ESA acknowledged the cultural significance of video games and the need for preservation. However, it maintained that preservation efforts must uphold the market for current or potential re-releases. โWe recognise the importance of preserving video games and protecting game hardware given their significance in culture and society,โ the ESA stated. โWith todayโs decision, the Copyright Office confirms the current level of video game preservation is appropriate.โ
The ruling underscores the challenges in balancing cultural preservation and copyright protection. Video game historians and scholars will need to continue in-person research at libraries and museums, at least until the next review period. At the same time, preservation advocates are expected to keep pushing for broader access rights in the face of copyright restrictions.
