The tired argument over whether or not video games are art has been settled for years now, and we’re probably all sick of hearing about it. But researchers are once again being forced to prove that games deserve to be treated like every other art form when it comes to scholarly research and historical preservation, and the major companies that make them are once again trying to stop them.
Last month, in a hearing held by the US Library of Congress Copyright Office, the Software Preservation Network (SPN) made arguments in support of a Digital Millennium Copyright Act amendment that would allow libraries to bypass digital locks on video games so that academics and credentialed researchers could study them.
As things stand now, a very, very small handful of libraries have video game collections on site that individuals can either physically play at the library location, or check out like a book. But while libraries have programs that let you check out ebooks or music or otherwise access their collections digitally, it’s currently illegal for libraries to make games available digitally to anyone, regardless of why they need them. If you don’t live close enough to a library, or worse, if the game you need is digital-only but no longer available for purchase…you may be out of luck.
Legally-Sanctioned Emulation
The current state of affairs is a problem for researchers, academics, and preservationists, who need access to games in order to do their jobs. Tons of old video games are expensive, rare, or require specialized equipment to access. And while existing exemptions allow researchers to access jailbroken copies of certain games that are no longer on the market, this is only permitted if the person is physically present at the institution that owns the copy in question.
To address this, the Software Preservation Network recently proposed an exemption to the US Copyright Office that would allow libraries to make preserved games that are already out of market available digitally specifically “for research and education.” Under the proposal, most people still wouldn’t be able to access games digitally from libraries. But for instance, a professor who needed access to a rare game for a research paper would be able to check it out digitally from a library across the country, even if it wasn’t available nearer to home. This seems especially critical given only 13% of classic video games published in the US are currently in release, per a study conducted last year. That means 87% are basically unavailable. That’s a huge issue for video game preservation – one that libraries could theoretically solve.
“The overarching goal for both exemptions is to take advantage of remote access technology like EaaSI [Emulation-as-a-Service Infrastructure] to enable scholars who don’t live near one of the few institutions with substantial software or video game collections to browse and explore these materials without traveling to see them onsite, and to allow networks of institutions to collaborate to preserve and provide research access to software materials,” wrote the Software Preservation Network.
This seems like it should be an easy win for researchers, preservationists, and the medium as a whole. Video games would surely benefit from more in-depth reports, academic research, and thorough examination as an art, and allowing digital access would enable more people in more places to do so. But video game companies – or at least, the trade group representing them – have taken a stance against it.
Art vs. Copyright
At the aforementioned hearing, Entertainment Software Association (ESA) lawyer Steve Englund argued that the ESA’s members would not support libraries offering remote access to archived video games for researchers. Per Game Developer, Englund pushed back against multiple solutions to the ESA’s concerns, including restricting access to individuals with academic credentials, or limiting the exemption to just libraries that already had physical collections on-site.
So what’s going on? Is the ESA anti-preservation? The group claims, adamantly, that it is not. Officially, the ESA claims it takes a pro-preservation stance…so long as it doesn’t jeopardize “video game companies’ rights under copyright law.” In an email conversation with an ESA spokesperson, the organization pointed out that over 2,500 video games have been donated to the Library of Congress through ESA in recent years.
“The video game industry’s creative and economic vitality depend on strong copyright protections,” the group said in a statement. “ESA and its member companies are committed to, and actively support, professional efforts to preserve video games and do so in ways that do not jeopardize future economic opportunity for their creative works.”
The video game industry’s creative and economic vitality depend on strong copyright protections.
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The spokesperson also told me the trade group “absolutely” sees games at art. But also as copyrighted works. “That means that ‘universal preservation’ must always be balanced against the rights of copyright owners to make business decisions about the legacy market.”
The ESA spokesperson added that the group supports renewal of the existing game preservation exemptions, but also cited the Copyright Office’s past rulings on remote access while arguing that jailbroken consoles are inherently linked to video game piracy. “The Copyright Office rejected similar proposals in 2018 and 2021 because the Office found that there was insufficient assurance ‘that uses would be limited to bona fide teaching, research, or scholarship uses and would [not] affect the market for the original works [i.e., classic games].’”
It’s easy enough to understand the ESA’s stance: it represents companies who have a financial interest in keeping libraries from offering free, unmitigated digital access to any game they’ve ever made. Companies frequently re-release, remaster, remake, port, or otherwise make classic games available in exchange for money, and they would naturally want to make sure a library wasn’t undermining their ability to make money off of services like Nintendo Switch Online’s retro game apps and Xbox’s ongoing backward compatibility efforts. In a brief, the ESA said the proposed exemption would effectively allow “unauthorized persons” to “provide an online arcade available to the public,” presenting a “serious risk to an important market.”
But even so, the ESA seems unwilling to entertain any pitch that would allow people with academic credentials to access necessary primary sources. Great as it might be that companies are aiding game preservation in their own ways, the current state of things also leaves game preservation firmly in their hands; without the permission of a multi-million dollar business, thousands of games may simply disappear forever. I asked the ESA spokesperson directly what remedy the ESA would propose for academics who need access to otherwise unavailable games for the purpose of preservation or research, but did not receive a response.
So I tried a different approach – I asked the individual members of the ESA. I reached out to all 30 currently-listed members of the ESA to ask for comment on this situation. Most of them didn’t respond. Some PR representatives did respond said they’d try to get a comment, then went silent. A handful – Amazon, Capcom, Krafton, Take-Two Interactive, and Wizards of the Coast – outright declined to comment. Riot Games also declined, with its representative noting that “no one I've spoken with has been monitoring this very closely.”
I did get exactly one comment back, from Marvelous/XSEED Games. Here it is, in full:
“XSEED Games is supportive of both game preservation and efforts to ensure access to titles for academic and research purposes, including through institutions like libraries, but recognize there remain practical challenges to this from business and licensing perspectives. We remain optimistic that a solution will be found to achieve the goal of providing historical access for academic purposes while protecting developers' and publishers' ability to continue creating exciting games and experiences.”
The Fight for Universal Preservation
Brandon Butler, a copyright lawyer who is the law and policy advisor to the Software Preservation Network, was as baffled by the ESA’s objections as I was. From his perspective, he sees the ESA as essentially making two arguments against the rule. One argument is that such a rule would create a pretense for piracy. Butler argues this is absurd, given that piracy would still be illegal under the proposed rule – only legitimate, credentialed academics would be getting the exception.
The other argument, which he says has a bit more weight, is that the proposed rules are too broad and would allow people who aren’t actually researchers to take advantage of them. Butler grants this is a better argument, but says the SPN has anticipated the issue and made an effort to fight it.
“We've written these rules pretty carefully,” Butler says. “You have to have professional librarians on staff. There are rules, there are standards to pass the threshold test to be the kind of institution that can take advantage of these rules…Our test is based on the copyright office's own proposed rules for what kinds of institutions should be recognized as a library. We didn't pull this out of the air, this is the copyright office's proposal to define what kinds of institutions should have the special privileges that libraries and archives get in the law. So, it's not fair to say that our rules are too broad because they're not.”
Groups like ESA come out of sync with the communities.
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Butler goes on to point to Englund’s comments during the hearing, where he argued that there was currently "[no] combination of limitations [ESA members] would support to provide remote access." Essentially, Butler believes this was the ESA showing its hand: it’s just flat-out opposed to any remote access, and won’t meet the SPN in the middle at all. He believes the ESA is refusing to cede any ground whatsoever, without any real regard for what’s actually in the best interest of games or game preservation.
“The trade associations come to these DMCA hearings with a certain overarching policy goal of protecting maximum copyright control,” he says. “I think that's the difference between the ESA and its individual members, if that makes sense. If you call any particular member, they might say, ‘Well, I don't know. Sure. I mean, all things considered, I don't see what the problem is with preservation and research access.’ But…these groups like ESA, that come, I think, out of sync with the communities, like the game developers or the smaller companies. Probably the biggest companies agree with maximalist protectionist point of view because their general interest is to protect their massive back catalogs at all costs. But I think most reasonable middle of the road people in the community don't share that perspective.”
Butler points out that the ESA has done this song and dance before, too. It previously opposed a number of other preservation-focused adjustments to the Digital Millennium Copyright Act, usually with similar arguments, only to have those amendments go through without sparking a massive uptick in piracy. Even now, the ESA says it supports the law as it currently stands, which includes a number of policies it previously opposed. Through that lens, the battle between preservationists and the ESA seems less like an issue of principles and more like a fight over whether or not an arbitrary line should be moved or not.
So I ask Butler if, in his eyes, it makes sense to keep going even if it wins this particular battle – to keep lifting restrictions on digital access until there are none left. He isn’t interested in going that far, but he does want to make sure that professional academics don’t have to struggle to access research materials, no matter where they happen to live. If the SPN can secure remote access for researchers and preservationists, but it’s apparent there are still issues with academic access to video games, he and the SPN will work out how best to make that request. It all comes down to meeting the needs of video game preservation and research.
You can count on one hand just about, the significant video game collections in the United States of America.
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“There is a chicken/egg dynamic happening here, big time,” he says. “The research community, on the one hand, is working to be taken seriously. There are multiple peer-reviewed journals devoted to video games. There are dozens of scholars, with tenure at fancy universities who study video games. But there's a push-pull [in] the question of how well we should resource the collecting, preserving, and making available of historic video games…The perception is that there's not a lot of demand for it…You can count on one hand just about, the significant video game collections in the United States of America are at Stanford, the Strong, University of Michigan and three other places. There's not a lot."
So, if those collections can't be made accessible remotely, then studying video games anywhere other than Rochester, New York, Mountain View, California, et cetera, it's not fun. It's not easy, and it's not well-supported by the library community. So, it's really important to make this a distributed collective effort, given that the collections right now are so unevenly distributed.”
We won’t know whether or not the SPN was successful until later this year, when the US Library of Congress Copyright Office issues its ruling on the exemptions. Its ruling will abide for another three years, after which everyone involved will have another opportunity to go back to hearings and request new exceptions. Meanwhile, thousands more video games will launch, and most of them will likely vanish forever if companies aren’t interested in supporting them. With or without remote access, the work of preservation must continue.
Rebekah Valentine is a senior reporter for IGN. Got a story tip? Send it to rvalentine@ign.com.
Blogroll photo by Gregory Rec/Portland Press Herald via Getty Images
