The Federalists Say You Don’t Have the Right to Access Old Video Games Like Library Books

Most video games in the world dating back almost 50 years have become legally dead. A study conducted by the Video Game History Foundation found that you cannot legally purchase approximately 90% of games by 2010. Environmental preservation advocates were looking for ways to allow people legal access to the history of games, but the U.S. Copyright Office dealt them a heavy blow on Friday. Federal officials announced that neither you nor any researcher have the right to access old games under the Digital Millennium Copyright Act, or DMCA.

Groups like VGHF and the Software Preservation Network have put their weight behind exempting the new Millennium Digital Copyright Act (DMCA) from accessing video games. The law states that you cannot remotely access obsolete games that are still under copyright without a license, even though they are not available for purchase. The current rules in the new Millennium Digital Copyright Act restrict access to old game libraries and repositories to one person at a time.

The exemption proposed by the foundation could have allowed more than one person at a time access to content stored in museums, archives, and libraries. This would allow players to access a part of video game history as they would if they borrowed an e-book from the library. VGHF and SPN argued that if a museum holds multiple copies of a game, it should be able to allow the largest number of people to access the game as long as copies are available.

In a Copyright Office decision dated October 18 (found on page 30), Director Shira Perlmutter agreed with multiple industry groups, including the Entertainment Software Association. The Library of Congress recommended keeping the same restrictions. Section 1201 of the new Millennium Digital Copyright Act restricts “unauthorized” access to copyrighted works, including games. However, it allows the Library of Congress to grant some classes of people to circumvent those restrictions.

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

VGHF said in a statement that rights holder pressure “continues to impede progress.” The team referred to comments made by a European Space Agency representative. An attorney for the European Space Agency told Ars Technica, “I don’t think there are currently any sets of restrictions that ESA members would support to provide remote access.”

Video game preservation experts argued that these game repositories could provide full-screen popup notifications for copyright notices to anyone examining the game. They would also restrict access either temporally or force users to access through “technological controls,” such as platform-specific distribution for streaming.

Industry groups argued that these museums do not have adequate “guarantees” to prevent users from distributing games once they obtain them. They also claimed there is a “large market” for old or classic games, and having a new free library access to games would “jeopardize” this market. Perlmutter agreed with industry groups.

She wrote: “While the record notes that proponents suggested broad guarantees that could deter entertainment uses of video games in some cases, it believes that such requirements are not specific enough to conclude they would prevent market harm.”

Do libraries lending books harm the literary industry? In many cases, publishers view libraries as free advertising for their products. It generates word-of-mouth, and since libraries have a limited number of copies, those who want a book for longer reading are encouraged to purchase one. The video game industry is highly effective in shooting itself in the foot to the point where it doesn’t even recognize when environmental preservation advocates are about to help it without any cost to publishers.

If there is a large market for classic games, why are many of them still unavailable for purchase? Players will inevitably resort to piracy or emulation if there is no easy access to practice old games.

VGHF wrote: “The absolute position of the video game industry… forces researchers to explore illegal ways to access the vast majority of video games that have run out of editions and are not available in any other way.”