For years now, video game preservationists, librarians, and historians have been arguing for a DMCA exemption that would allow them to legally share emulated versions of their physical game collections with researchers remotely over the Internet.
But those preservationists continue to face pushback from industry trade groups, which worry that an exemption would open a legal loophole for “online arcades” that could give members of the public free, legal, and widespread access to copyrighted classic games.
“I don’t think there is at the moment any combination of limitations that ESA members would support to provide remote access,” Englund said.
However, there is no similar exemption that allows for sending temporary digital copies of video games to interested researchers.
If a human reviewed that checkbox affirmation, it could provide a legal loophole to widespread access to an unlimited online arcade, Englund argued.
Phil Salvador of the Video Game History Foundation said that Englund’s concern about this score was overblown.
“Building a video game collection is a specialized skill that most libraries do not have the human labor to do, or the expertise, or the resources, or even the interest,” he said.
Salvador estimated that the number of institutions capable of building a physical collection of historical games is in the “single digits.”
Historians, librarians, and video game preservationists have been pushing for a DMCA exemption for years, hoping to share emulated copies of their physical game collections with academics online legally. However, trade associations for the industry continue to oppose the preservationists, claiming that an exemption would create a legal loophole that would allow “online arcades” to provide the general public with widespread, free, and legal access to copyrighted classic games.
During livestreamed testimony earlier this month in front of the Copyright Office, which is considering new DMCA rules as part of its regular triennial process, this long-running dispute was joined once more. In order to help guarantee that temporary remote game access would be granted “primarily for the purposes of private study, scholarship, teaching, or research,” representatives of the Software Preservation Network and the Library Copyright Alliance defended their proposal during that testimony. They called for a system of “individualized human review.”. ****.
However, attorney Steve Englund, speaking on behalf of the trade association Entertainment Software Association, claimed that the new proposal represented “at best incompleteness” and “not very much movement” on the side of the proponents. And Englund resisted when asked what would constitute “complete” enough protections to meet the ESA’s requirements.
According to Englund, “I don’t think there is currently any combination of limitations that ESA members would support to provide remote access.”. “The preservation groups request a great deal of latitude in managing extremely valuable intellectual property. They haven’t done so yet. demonstrate a readiness on their part to do something that could reassure the IP owners. “.
Interfering with research.
Nowadays, the Copyright Office has granted specific DMCA exemptions that allow research institutions to grant remote access to digital copies of works such as music, movies, and books. Nonetheless, there isn’t a comparable exemption that permits researchers who are interested in sending temporary digital copies of video games. This implies that access to large game archives is restricted to researchers who physically visit the Strong Museum of Play’s premises in Rochester, New York.
Robert Rothstein, an industry lawyer, attempted to argue during the recent Copyright Office hearing that this is more of a “travel problem” than a legal issue requiring new rule-making. Laine Nooney, a professor at NYU, countered that travel is “a significant financial and logistical impediment to doing research.”. “.
According to them, Nooney would need to make an overnight stay for any research that would take longer than a few hours to complete and drive five to six hours from New York City to the Strong Museum in Rochester “on a good day.”. Nooney has only ever had access to the Strong collection twice in her career as a result. Even a single research visit to the Strong may be out of reach for researchers who are located farther away, or for graduate students and researchers who may not have as much funding.
According to Nooney, you don’t go there merely to spend a few hours playing a game. To be honest, my peers who specialize in literary studies or film history frequently have access to digital copies of the materials they study. These obstacles do hinder research in ways that are unequal when compared to our colleagues in other fields, and they are real and substantial. “.
restricted entry.
In order to “strike a compromise” between “concerns of the ESA and the need for flexibility that we’ve emphasized on behalf of preservation institutions,” preservationists had urged during the hearing, according to attorney Kendra Albert. They contrasted the system under consideration with the one currently in place to provide access to libraries’ “special collections,” which are not generally made available to the general public.
However, Englund contended that “out in the real world, people want to preserve access in order to play games for fun,” despite the fact that preservation institutions might wish to grant restricted scholarly access. He cited public comments submitted to the Copyright Office by “individual commenters [who] are very interested in playing games recreationally” as proof that some people would try to take advantage of this kind of setup.
Even though an “Ivy League” library would be in charge of handling a proposed DMCA exemption, Englund was concerned that less ethical establishments might merely offer an online “checkbox” for people to lie about their interest in “scholarly play.”. According to Englund, “if a human examined that checkbox affirmation, it might offer a legal way to grant general public access to an unrestricted online arcade.”.
Are there going to be enough limitations?
According to Phil Salvador of the Video Game History Foundation, Englund’s worries regarding this score were exaggerated. According to him, “assembling a collection of video games is a specialized skill that most libraries do not have the human labor, expertise, resources, or even the interest to do.”.
According to Salvador, there are only a small number of institutions that have the capacity to compile a physical collection of historical video games. And that’s before you factor in the substantial resources required to enable remote access to those collections; according to Rhizome Preservation Director Dragan Espenschied, running the sophisticated cloud-based emulation infrastructure required for a few hundred users to access their gaming retrospectives and art archives costs their organization “thousands of dollars a month.”.
Salvador also mentioned a VGHF study from the previous year, which revealed that an astounding 87% of games ever made are no longer in print, making it challenging for researchers to obtain access to vast swathes of video game history without institutional support. Additionally, Salvador noted that since the games that researchers are most interested in are typically the “more primitive” early games with “less popular appeal,” it is unlikely that they have had modern re-releases.
Later this year, the Copyright Office is anticipated to rule on the exemption that the preservation community has proposed. However, the preservation community feels that it has made significant concessions on these potential concerns, and for now, there is some frustration that the industry has not shown any receptiveness to these.
Speaking at the hearing, Albert stated, “None of that is ever going to be sufficient to reassure these rights holders that it will not cause harm.”. In terms of pragmatic considerations, I would particularly like to draw attention to the fact that advocates have consistently put forth concessions that enable preservation institutions to grant researchers the kind of access they require. I’m not sure if that will ever be sufficient. “.”.
