Video game researchers are trying to preserve old games, but the Entertainment Software Association refuses to sign off on a plan to make them more accessible. Researchers had sought an exemption from copyright law to make it easier to move out-of-print games to online archives for research and preservation purposes, but the ESA insisted it would block that. It is possible to move forward without the help of an ESA.
ESA's comments came during a hearing with the U.S. Copyright Office on proposed rule changes that would allow researchers to remotely access archives of preserved games. game developer report. ESA lawyer Steve England said any restrictions or limitations on these digital libraries are not strong enough for the ESA to agree to.
ESA, which once hosted E3, wants to block measures that would make it easier to preserve old games.
Frederick J. Brown/AFP/Getty Images
Existing rules make it illegal to circumvent technical rights management measures, such as the digital rights management systems that many games have, regardless of the reason for circumventing the measures. This means that a researcher who attempts to remove DRM from a game and save it in another format will be treated by law in the same way as someone who copyrights the game.
Preservation advocates have already secured exemptions that allow limited research access to circumvented copies of games that are no longer on the market, but only on the premises of research institutions. As Professor Lane Nooney of New York University explained at the hearing, few such sites exist, given that researchers tend to need ongoing access to archived games. Traveling for long periods of time to a physical location to conduct research can be “a significant financial and financial burden.” Logistical obstacles. ” Nooney and technology attorney Kendra Albert pointed out during the hearing that similar restrictions do not exist in other academic fields, where books, movies, and other materials are readily available online.
The new proposed exemption would remove that barrier by allowing researchers to access archival materials online, which England argues would constitute an “online arcade.” and would like to avoid ESA at all costs.
The majority of classic games are no longer on the market, and only 3% of games published before 1985 are available.
Daniel Bocharski/Getty Images Entertainment/Getty Images
England's arguments at the hearing primarily revolved around the issue of “recreational play,” or playing games for fun. He argued that no amount of regulation instituted by research institutions would be enough to prevent non-researchers from exploiting video game libraries to gain free access to out-of-print games. Restricting access to researchers from eligible institutions and even making collections available online only to archives with physical locations was deemed insufficient. Preservation advocates pushed back, arguing that there was little public interest in playing most of the games at the heart of their work and that libraries could manage their own collections.
The problem of access to out-of-print games is a big problem for researchers. At the hearing, Phil Salvador of the Video Game History Foundation said that a 2023 study by VGHF and the Software Preservation Network found that an astonishing 87 percent of video games published before 2010 are no longer commercially available. It was pointed out that it was found that For games made before 1985, this number drops to about 3%. That era is particularly important to researchers because, as Salvador points out, video games were an early medium, still developing their own rules and standards. But even though most games from the time are not available for purchase, they remain off-limits to the vast majority of researchers.
However, opposition to the ESA does not mean that this avenue for conservation is closed. The final decision still rests with the U.S. Copyright Office, and at least some preservation advocates are hoping for a chance. “It went as well as it could have,” Salvador said on social media site Blue Sky after the hearing. A ruling on the proposed exemption will not be handed down until this fall. The full text of the hearing will be published online with the U.S. Copyright Office at a later date, but until then the entire meeting is archived on Twitch streamer moralrecordings. His talk at GDC this year also includes a primer on Albert's work and further updates on the current state of game preservation.
