Video Game Libraries Could Aid Preservation — Unless the ESA Has Its Way

Video game researchers are attempting to preserve older games, but the Entertainment Software Association is refusing to sign on to their plan to make older games to be easier to access. Researchers were seeking an exemption to copyright law to make it easier to move out-of-print games to online archive for research and preservation purposes — and the ESA argued to block it. It’s still possible to move forward without the ESA’s help.

The ESA’s comments came during a hearing with the U.S. Copyright Office over a proposed rule change that could allow researchers to access archives of preserved games remotely, Game Developer reported. Steve Englund, a lawyer for the ESA, said that no set of restrictions or limitations on these digital libraries would be strong enough for the organization to agree to them.

An existing rule makes it illegal to circumvent technological copyright control measures like the Digital Rights Management systems found on many games, regardless of why those measures are being circumvented. That means that researchers attempting to remove DRM from games to preserve them in another format are treated the same by the law as someone pirating games.

Preservation advocates have already won exemptions that allow limited research access to circumvented copies of games that are no longer on the market, but only on the premises of a research institution. As New York University professor Laine Nooney explained at the hearing, there are few such sites in existence, and given that researchers tend to need sustained access to archived games, traveling to a physical location long enough to do their work represents a “significant financial and logistical impediment.” Nooney and technology lawyer Kendra Albert pointed out at the hearing that these same restrictions don’t exist in other scholarly fields, where books, films, and other materials are much more readily available online.

The new proposed exemption would remove that impediment by allowing researchers to access preserved materials online, which Englund argues would constitute an “online arcade” — something that the ESA wants to avoid at all costs.

Englund’s argument in the hearing largely revolved around the issue of “recreational play,” or playing games for fun. He argued that no controls established by research institutions would be enough to prevent non-researchers from abusing video game libraries in order to score free access to out-of-print games. Even limiting access to researchers from credentialed institutions and only allowing archives with physical locations to make their collections available online were deemed insufficient. Preservation advocates pushed back, arguing that there’s little public interest in playing most of the games their work centers on, and that libraries are capable of controlling their own collections.

The issue of access to out-of-print games is a huge deal for researchers. At the hearing, the Video Game History Foundation’s Phil Salvador pointed to a 2023 study by the VGHF and the Software Preservation Network, which found that a stunning 87 percent of video games published before 2010 are no longer available commercially. For games made before 1985, that figure drops to around three percent. As Salvador points out, that period is when video games were still a nascent medium developing its own rules and standards, and thus it’s especially important to researchers. And yet, despite almost no games from that time being available for purchase, they’re still off limits to the majority of researchers.

The ESA’s opposition doesn’t mean this avenue of preservation is shut off, though. The final determination still comes down to the U.S. Copyright Office, and at least some proponents of preservation like their chances. “That went about as well as it could have,” Salvador said on social media site Bluesky after the hearing. A ruling on the proposed exemption won’t be reached until this fall. The full hearing will be posted online with the U.S. Copyright Office at a later date, but until then, Twitch streamer moralrecordings has the entire meeting archived. A talk at this year’s GDC also includes a primer on the effort from Albert along with more updates on the current state of games preservation.