US Copyright Office Denies Exemption for Remote Access to Out-of-Print Games

The US Copyright Office has turned down a proposed exemption to the DMCA that would have facilitated the preservation of video games. The Video Game History Foundation, in collaboration with the Software Preservation Network since 2021, had been pushing for libraries and archives to be allowed to remotely share out-of-print games in their collections. However, current anti-circumvention rules under Section 1201 of the DMCA hinder these institutions from breaking copy protection to make games accessible to researchers. The Copyright Office's decision, outlined on page 191 of the Register's Recommendation of Copyrights, referenced comments from the Entertainment Software Association expressing concerns that the Video Game History Foundation failed to provide a clear requirement for user identification and purpose of access. Register of Copyrights and Director of the US Copyrights Office Shira Perlmutter stated that proponents of video game preservation had not demonstrated that reproducing works for multiple simultaneous use is likely to be fair. Perlmutter also found the proponents' stance on emulation to be inconsistent and incomplete. During the hearing, the Video Game History Foundation claimed the Entertainment Software Association declared it would never support remote game access for research purposes under any conditions. The Entertainment Software Association had previously opposed changes to the DMCA aimed at preserving abandoned online games in 2018. The Video Game History Foundation asserted that the game industry's stance forces researchers to explore extra-legal methods to access out-of-print video games. The foundation vowed to continue advocating for greater access and legal allowances for video game preservation, working with game industry members to raise awareness about these issues. A study conducted by the Video Game History Foundation last July found that 87% of video games are critically endangered due to preservation challenges.