US Copyright Office rejects DMCA exemption supporting remote access for out-of-print games

The US Copyright Office has rejected an exemption to the DMCA proposed by the Video Game History Foundation that would support game preservation.

The VGHF has been working with the Software Preservation Network since 2021 in their campaign to “allow libraries and archives to remotely share digital access to out-of-print games in their collections.”

In a statement it claimed that under current anti-circumvention rules in Section 1201 of the DMCA, these institutions “are unable to break copy protection on games in order to make them remotely accessible to researchers.”

The Copyright Office’s decision was detailed on page 191 of the Registers’ Recommendation of Copyrights, which cited comments from the Entertainment Software Association that suggested the VGHF “[did] not propose a clear requirement to know who the users are or why they want to access a game.”

“Proponents [of video game preservation] have not met their burden of showing that reproducing works to allow for multiple simultaneous use in the computer program class is likely to be fair,” said register of copyrights and director of the US Copyrights Office Shira Perlmutter.

“The Register also finds that the proponents have not met their burden of showing that the proposed off-premises uses in the video game class are likely to be fair.”

Perlmutter also deemed that the VGHF’s stance on emulation was “inconsistent and incomplete and the technologies are not addressed in the exemption text.”

During its hearing with the Copyright Office, the VGHF claimed the ESA “declared [it] would never support remote game access for research purposes under any conditions.”

The ESA previously opposed a change to the DMCA aimed at preserving abandoned online games in 2018.

“The game industry’s absolutist position – which the ESA’s own members have declined to go on record to support – forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable,” the VGHF wrote.

“We will continue our advocacy for greater access and legal allowance for video game preservation and working with members of the game industry to increase internal awareness around these issues.”

Last July, the VGHF conducted a study that found 87% of video games are “critically endangered” as preserving them has become increasingly difficult.