US Copyright Office denies DMCA exemption, deals blow to video game preservation efforts

Preservationists can try again in 2027 when the DMCA is up for review

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In context: Video game preservation efforts have experienced another setback in their ongoing dialogue with copyright stakeholders. As they work to preserve digital culture, preservationists must find a way to balance commercial interests with historical and scholarly needs.

The US Copyright Office has dealt a significant blow to video game preservation efforts by denying a request for a Digital Millennium Copyright Act (DMCA) exemption, allowing libraries to provide remote access to preserved video games. The decision, announced last week, marks the fourth time since 2015 that the copyright authority has rejected such a request.

The Video Game History Foundation (VGHF) and the Software Preservation Network had petitioned to change DMCA regulations to permit libraries and archives to share access to out-of-print games in their collections from a remote location. Currently, researchers must travel to physical archives to access historic games, as the DMCA prohibits breaking copy protection on games to make them remotely accessible.

Shira Perlmutter, Register of Copyrights and Director of the US Copyright Office ruled that proponents of video game preservation haven't demonstrated that the requested usage is non-infringing. The Copyright Office sided with arguments from the Entertainment Software Association (ESA) and other industry groups, who said that the proposed remote access could potentially harm the market for classic game re-releases.

This ruling has significant consequences for the preservation and study of video games, potentially leaving substantial gaps in the understanding and documentation of video game history. Historians claim that 87 percent of games released before 2010 are considered "critically endangered" regarding accessibility.

During a hearing with the Copyright Office, the ESA vehemently opposed the exemption, declaring that they would never support remote game access for research under any conditions. Preservationists counter that this stance is absolutist and harmful to research and historical documentation.

"[This decision] forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable," the VGHF lamented.

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However, the foundation hasn't given up the fight. It vowed to continue advocating for greater access and legal allowances for video game preservation.

The DMCA exemption rules undergo a triennial review process. So, advocates can petition for this exemption again in 2027. In the meantime, organizations such as the VGHF and others in the field intend to persist in raising awareness about the significance of video game preservation.