US Copyright Office refuses to allow remote access to out-of-print games

The US Copyright Office has refused to grant an exemption that would allow researchers to remotely access out-of-print video games.

The Software Preservation Network, supported by the Video Game History Foundation, had petitioned the US Copyright Office for an exemption that would let libraries and archives provide remote digital access to video games, so researchers could access them without having to visit their physical premises.

To make these games accessible remotely, libraries and archives would have to break the copy protection on games, but current anti-circumvention rules in the Digital Millennium Copyright Act (DMCA) prevent this.

The US Copyright Office has now concluded that it will not grant an exemption in the DMCA, meaning remote access remains prohibited.

As part of its ruling, the Copyright Office claimed that enough clarification hadn’t been provided on whether a game must only be accessible to one user at a time (a ‘single-user limitation’), or whether it must not be made available outside of the physical premises (‘a premises limitation’).

The petition argued that remote access to the games would be considered “transformative” and “would not affect the potential market for or value of the copyrighted works because only works that are no longer reasonably available in the commercial marketplace would be subject to the exemption”.

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However, it was decided that both the single-user and premises limitations should be kept intact to ensure fair use, to prevent “market harm” and to avoid the “significant risk that preserved video games would be used for recreational purposes” instead of research.

In a statement, the Video Game History Foundation criticised the decision, and blamed the Entertainment Software Association (ESA) for lobbying against its campaign.

“While we are disappointed by the Copyright Office’s decision, we have no regrets about going through this process,” the VGHF wrote.

“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 ESA declared that they would never support remote game access for research purposes under any conditions.

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“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.”