US Copyright Office Denies Exemption in the DMCA That Would Support Access to Out-of-Print Games - News
by William D'Angelo , posted on 02 January 2025 / 2,814 Views
The US Copyright Office announced it will not grant a new exemption in the Digital Millennium Copyright Act (DMCA) that would have supported video game preservation.
Section 1201 of the DMCA precents libraries and archives from breaking copy protection on games in order to make them accessible digitally.
The decision by the Copyright Office was details on the Registers' Recommendation, which states "proponents have not met their burden of showing that reproducing works to allow for multiple simultaneous use in the computer program class is likely to be fair.
"The Register also finds that proponents have not met their burden of showing that the proposed off-premises uses in the video game class are likely to be fair. As proponents have not satisfied their burden to demonstrate that the requested uses are or are likely to be noninfringing, it is unnecessary to engage in an analysis of whether the implementation of technological protection measures on these works has caused adverse impacts on those users."
The Video Game History Foundation in its own statement said it has been supporting the Software Preservation Network (SPN) over the past three years and it has been petitioning to allow libraries and archives to remotely share digital access to out-of-print video games in their collections.
"Under the current anti-circumvention rules in Section 1201 of the DMCA, libraries and archives are unable to break copy protection on games in order to make them remotely accessible to researchers," said the Video Game History Foundation.
"While we are disappointed by the Copyright Office’s decision, we have no regrets about going through this process. Over the last three years, working on the petition has helped us generate important research, notably our Survey of the Video Game Reissue Market in the United States report, which proved that around 87 percent of video games released in the United States before 2010 remain out of print. Our combined efforts with SPN have raised significant public awareness of these issues and have already made an impact throughout the game industry and preservation communities.
"Unfortunately, lobbying efforts by rightsholder groups continue to hold back progress. During our hearing with the Copyright Office, the Entertainment Software Association (ESA) declared that they would never support remote game access for research purposes under any conditions. The game industry’s absolutist position—which the ESA’s own members have declined to go on the record to support—forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable.
"We’re not done fighting here. We will continue our advocacy for greater access and legal allowances for video game preservation and working with members of the game industry to increase internal awareness around these issues."
A life-long and avid gamer, William D'Angelo was first introduced to VGChartz in 2007. After years of supporting the site, he was brought on in 2010 as a junior analyst, working his way up to lead analyst in 2012 and taking over the hardware estimates in 2017. He has expanded his involvement in the gaming community by producing content on his own YouTube channel and Twitch channel. You can contact the author on Twitter @TrunksWD.
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This blows. -_-
Over on the old Reddits it was mentioned that it was denied because remote access might allow people to play the games for 'recreational purposes'. Most people were like "Well no shit, then I'll continue pirating games." But many seemed to miss the point, the Video Game History Foundation wanted remote access to and ability to lend out remotely access to games in their archive for research or historical purposes, so it has to be denied.
But none of this is that simple. I presume the Video Game History Foundation wants to essentially work as a library for games but it needs to have the correct infrastructure to allow for people to borrow games and if for 'research' purposes, restrict it to that, not any Joe Bloggs from down the road just to play games for nothing.
However, I do think they should be able to gain copies for record sake. The British Library has a copy of every book published in the UK but it's not in the process of lending them out as it doesn't have the means to as it's just an archive.
The National library here in Luxembourg also has (at least) a copy of every book published in Luxembourg for archival and research purposes. While most of the older ones can't be lend out except with special waivers, most of them have been digitized, so everyone can get one of those scans instead.
Videogames are digital to begin with, so why this ain't an option is beyond me. The only reason I can find is that the publishers can't make money off of those (and actually have to spend some money for the archiving of their games and code instead of just putting it into a box and let it literally rot there), hence why they strongly lobbied against this.
I think there has to be a line here, to appease copyright holders, the archives and those who want to use the services they envision.
I mean, Libraries in the UK already have copies of games and lend them out, they don't make money from them either, other than the original purchase the library has to do. It's how it's been for years but they are physical copies which have limits. They do music and movies too but these require 3rd party software for digital and are seemingly limited in choice. That said if you want to watch The Matrix on DVD, just go to your local CEX they have a couple of copies. :P
Any media stored on a CD/Blur-ray is digital, what seems to be an issue is the idea of unlimited access for purposes that aren't study but in reality what they need to do is apply to be a library then need software that allows them lend out games but for limited periods, remotely and has ways to restrict it from being copied/ripped. (obviously ignoring many games can be acquired via pirated means already :P). Then they'd need to regulate who has access.
Normally when you're lending books you have to return them in a timely manner.
What they would need would be an app or a launcher where you can download the games but with a time limit in that app/launcher as how long you can actually use it.
Also, Libraries normally have a fee when you return books or other media too late, so maybe an option to extend the lending period for a price should be a possibility.
lol yeah fuck you US. Still going to collect old games and ROMs will be out there no matter what
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