The Digital Millennium Copyright Act (DMCA) is a weight around the neck of retro game enthusiasts. There was hope that a Copyright Office decision this year would loosen restrictions and make it easier for people to experience the games of yesteryear, but that won’t happen after all. Repositories of old games are still governed by Section 1201 of the DMCA, which means no sharing, even if a game is unavailable for purchase anywhere in the world.
It’s not a fair situation for video game fans and digital media researchers. The Video Games History Foundation has found that about 90% of games released before 2010 are no longer available to buy. That means anyone wishing to experience this art needs to track down aging, often expensive hardware and plug in a failing cartridge or scratched optical disk.
That’s why the foundation, along with the Software Preservation Network, petitioned the Copyright Office for an exemption to Section 1201, which makes it illegal to bypass a digital lock that protects copyrighted content. The government accepts applications for 1201 exemptions every three years and has in the past opened up important technological avenues. It didn’t work out this time, though.
The petitioners wanted to be able to loan copies of retro games online like a library loans digital books. However, copyright holders like the Entertainment Software Association fought tooth and nail to prevent the exemption from being granted. According to the Video Games History Foundation, copyright owners have completely refused to support remote game access, even for media research purposes.
The petitioners proposed various technological measures to protect rights holders, like copyright notice popups and time limits for remote sessions. That wasn’t enough, though. Publishers claimed that museums don’t have the technological wherewithal to properly control access to games, making it impossible to keep people from distributing content illegally. They also claimed there was a “substantial market” for older games, and a free library of that content could hurt the bottom line.
https://t.co/tuGsUZMrcp pic.twitter.com/AyPu072rrY
— Video Game History Foundation (@GameHistoryOrg) October 25, 2024
Unfortunately, the Copyright Office agreed with industry groups (PDF). That means game preservation archives will only be accessible in person to a single player at a time—granting online access still counts as a copyright violation. Publishers can continue spoon-feeding us the remastered releases and retro bundles they like, and game preservationists are unable to provide access to all those thousands of abandoned games.
The Video Games History Foundation says it’s not done fighting the good fight. For now, it will work to raise awareness of the issue. The Copyright Office will accept 1201 exemption petitions again in three years. So, the foundation could give it another shot in 2027.