Video game libraries lose legal appeal to emulate physical game collections online

Earlier this year, we reported on the video game archivists asking for a legal DMCA exemption to share Internet-accessible emulated versions of their physical game collections with researchers. Today, the US Copyright Office announced once again that it was denying that request, forcing researchers to travel to far-flung collections for access to the often-rare physical copies of the games they're seeking. In announcing its decision, the Register of Copyrights for the Library of Congress sided with the Entertainment Software Association and others who argued that the proposed remote access could serve as a legal loophole for a free-to-access "online arcade" that could harm the market for classic gaming re-releases. This argument resonated with the Copyright Office despite a VGHF study that found 87 percent of those older game titles are currently out of print. "While proponents are correct that some older games will not have a reissue market, they concede there is a 'healthy' market for other reissued games and that the industry has been making 'greater concerted efforts' to reissue games," the Register writes in her decision. "Further, 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."

A DMCA exemption for remote sharing already exists for non-video-game computer software that is merely "functional," as the Register notes. But the same fair use arguments that allow for that sharing don't apply to video games because they are "often highly expressive in nature," the Register writes.                                                                       In an odd footnote, the Register also notes that emulation of classic game consoles, while not infringing in its own right, has been "historically associated with piracy," thus "rais[ing] a potential concern" for any emulated remote access to library game catalogs. That footnote paradoxically cites Video Game History Foundation (VGHF) founder and director Frank Cifaldi's 2016 Game Developers Conference talk on the demonization of emulation and its importance to video game preservation. "The moment I became the Joker is when someone in charge of copyright law watched my GDC talk about how it's wrong to associate emulation with piracy and their takeaway was 'emulation is associated with piracy,'" Cifaldi quipped in a social media post.

The fight continues

In a statement issued in response to the decision, the VGHF called out "lobbying efforts by rightsholder groups" that "continue to hold back progress" for researchers. The status quo limiting remote access "forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable," the VGHF writes. "Frankly my colleagues in literary studies or film history have pretty routine and regular access to digitized versions of the things they study," NYU professor Laine Nooney argued to the Copyright Office earlier this year. "These [travel] impediments [to access physical games] are real and significant and they do impede research in ways that are not equitable compared to our colleagues in other disciplines."

Speaking to Ars Technica, VGHF Library Director Phil Salvador said that the group was "disappointed" in the Copyright Office decision but "proud of the work we've done and the impact this process has had. The research we produced during this process has already helped justify everything from game re-releases to grants for researching video game history. Our fight this cycle has raised the level of discourse around game preservation, and we're going to keep that conversation moving within the game industry."                                                 "I'm proud of the work we and the orgs we partnered with did to try and change copyright law," Cifaldi added on social media. "We really gave it our all, I can't see what else we could have done. This fails the needs of citizens in favor of a weak sauce argument from the industry, and it's really disappointing."

Lawyer Kendra Albert, who argued vociferously in favor of the proposed exemption earlier this year, wrote on social media that they were "gutted by the result... Speaking on behalf of only myself, and not any of my clients, I do believe we made the best case we could that scholarly access to video games that are not commercially available does not harm the market. I do not believe that this evidence was seriously engaged with by the Copyright Office." Albert argued that the Register of Copyrights seems to have disregarded on-the-record comments from publishers of video game re-releases, who argued that remote scholarly access to library holdings would not harm their business. "It is not fair to video game scholars and preservationists to pretend that this is about creating sufficiently stringent exemption rules when the Copyright Office seems to have ignored the evidence that contradicts their prior beliefs," they wrote. Today marks the fourth time the Copyright Office has rejected arguments for remote access to library game collections since 2015. The office will consider arguments for and against the exemption again in 2027 as part of its triennial rulemaking process.