Feds Say You Don’t Have a Right to Check Out Retro Video Games Like Library Books

Most of the world’s video games from close to 50 years of history are effectively, legally dead. A Video Games History Foundation study found you can’t buy nearly 90% of games from before 2010. Preservationists have been looking for ways to allow people to legally access gaming history, but the U.S. Copyright Office dealt them a heavy blow Friday. Feds declared that you or any researcher has no right to access old games under the Digital Millennium Copyright Act, or DMCA.

Groups like the VGHF and the Software Preservation Network have been putting their weight behind an exemption to the DMCA surrounding video game access. The law says that you can’t remotely access old, defunct games that are still under copyright without a license, even though they’re not available for purchase. Current rules in the DMCA restrict libraries and repositories of old games to one person at a time, in person.

The foundation’s proposed exemption would have allowed more than one person at a time to access the content stored in museums, archives, and libraries. This would allow players to access a piece of video game history like they would if they checked out an ebook from a library. The VGHF and SPN argued that if the museum has several copies of a game in its possession, then it should be able to allow as many people to access the game as there are copies available.

In the Copyright Office’s decision dated Oct. 18 (found on Page 30), Director Shira Perlmutter agreed with multiple industry groups, including the Entertainment Software Association. She recommended the Library of Congress keep the same restrictions. Section 1201 of the DMCA restricts “unauthorized” access to copyrighted works, including games. However, it allows the Library of Congress to allow some classes of people to circumvent those restrictions.

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— Video Game History Foundation (@GameHistoryOrg) October 25, 2024

In a statement, the VGHF said lobbying efforts from rightsholders “continue to hold back progress.” The group pointed to comments from a representative from the ESA. An attorney for the ESA told Ars Technica, “I don’t think there is at the moment any combinations of limitations that ESA members would support to provide remote access.”

Video game preservationists said these game repositories could provide full-screen popups of copyright notices to anybody who checked out a game. They would also restrict access to a time limit or force users to access via “technological controls,” like a purpose-built distribution of streaming platforms.

Industry groups argued that those museums didn’t have “appropriate safeguards” to prevent users from distributing the games once they had them in hand. They also argued that there’s a “substantial market” for older or classic games, and a new, free library to access games would “jeopardize” this market. Perlmutter agreed with the industry groups. 

“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,” she wrote.

Do libraries that lend books hurt the literary industry? In many cases, publishers see libraries as free advertising for their products. It creates word of mouth, and since libraries only have a limited number of copies, those who want a book to read for longer are incentivized to purchase one. The video game industry is so effective at shooting itself in the foot that it doesn’t even recognize when third-party preservationists are actively about to help them for no cost on the publishers’ part.

If there is such a substantial market for classic games, why are so many still unavailable for purchase? Players will inevitably turn to piracy or emulation if there’s no easy-to-access way of playing older games. 

“The game industry’s absolutist position… forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable,” the VGHF wrote.