Important takeaways
- The US Copyright Office has denied remote access to out-of-print video games, hindering research and preservation efforts.
- A majority of classic video games are unavailable, putting gaming history at risk.
- Advocacy continues for exceptions, with the goal of creating fair access to video game history.
In an announcement on October 25, 2024 US Copyright Office denied a petition by the Software Preservation Network that would have allowed non-commercial remote access to out-of-print video games. The ruling is part of the US Copyright Office's three-year review of proposed exemptions to the Digital Millennium Copyright Act, which defines limits on circumvention of technologies that prevent unauthorized access to copyrighted works.
The Software Preservation Network is a member-supported organization engaged in educational and legal efforts to build and maintain cultural, academic, governmental, and public access to software. Its three-year effort to push through the exemption was supported by the Video Game History Foundation, a nonprofit organization that works to preserve and pass on the legacy of video games. Although retro gaming remains popular, legal ways to access many titles from previous console generations and arcades are extremely limited, which both organizations claim hinders extensive research into games.
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The rejection of the Digital Millennium Copyright Act petition keeps offline, commercially unavailable games out of the hands of qualified libraries, archives, and museums, except through ownership of the game in its original physical or digital format, along with all necessary physical hardware. The prime example offered in the petition is duck huntingThe 1984 lightsaber classic originally released for the Nintendo Entertainment System. With a 2014 Wii U duck hunting re-release is no longer supported by Nintendo, the only way to access the game is to already own the defunct re-release; get vintage gear, console, cartridge and light gun; or travel to an institution that already owns one or the other. As a central part of video game history, the petition argues that researchers and archivists should have a more reasonable level of access to duck hunting and games like it.
Inaccessibility of game history
Research conducted by the Video Game History Foundation in pursuit of the petition found that 87% of classic video games are unavailable except through their original formats or through piracy. The foundation argues that this isolation of gaming puts the legacy of the medium at risk and prevents extensive study and dissemination of video games, one of the most important cultural markers of the last century. As vintage consoles become increasingly difficult to find and older technology succumbs to age, accessing titles from across video game history is more challenging than ever.
Both the Video Game History Foundation and the Software Preservation Network say they will continue to advocate for the exemption, but it will be at least another three years before a reversal of the precedent can be accomplished. With modern gaming markets bursting with content and developers removing access to aging games, it seems more important than ever to create a stable, fair infrastructure to access the artistry and culture that makes up video game history.
