ESA

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.

This long-running argument was joined once again earlier this month during livestreamed testimony in front of the Copyright Office, which is considering new DMCA rules as part of its regular triennial process. During that testimony, representatives of the Software Preservation Network and the Library Copyright Alliance defended their proposal for a system of “individualized human review” to help ensure that temporary remote game access would be granted “primarily for the purposes of private study, scholarship, teaching, or research.”

Speaking for the Entertainment Software Association trade group, though, lawyer Steve Englund said the new proposal was “not very much movement” on the part of the proponents and was “at best incomplete.” And when pressed on what would represent “complete” enough protections to satisfy the ESA, Englund balked.

“I don’t think there is at the moment any combination of limitations that ESA members would support to provide remote access,” Englund said. “The preservation organizations want a great deal of discretion to handle very valuable intellectual property. They have yet to… show a willingness on their part in a way that might be comforting to the owners of that IP.”

Getting in the way of research

Research institutions can currently offer remote access to digital copies of works like books, movies, and music due to specific DMCA exemptions issued by the Copyright Office. However, there is no similar exemption that allows for sending temporary digital copies of video games to interested researchers. That means museums like the Strong Museum of Play can only provide access to their extensive game archives if a researcher physically makes the trip to their premises in Rochester, New York.

During the recent Copyright Office hearing, industry lawyer Robert Rothstein tried to argue that this amounts to more of a “travel problem” than a legal problem that requires new rule-making. But NYU professor Laine Nooney argued back that the need for travel represents “a significant financial and logistical impediment to doing research.”

For Nooney, getting from New York City to the Strong Museum in Rochester would require a five- to six-hour drive “on a good day,” they said, as well as overnight accommodations for any research that’s going to take more than a small part of one day. Because of this, Nooney has only been able to access the Strong collection twice in her career. For researchers who live farther afield—or for grad students and researchers who might not have as much funding—even a single research visit to the Strong might be out of reach.

“You don’t go there just to play a game for a couple of hours,” Nooney said. “Frankly my colleagues in literary studies or film history have pretty routine and regular access to digitized versions of the things they study… These impediments are real and significant and they do impede research in ways that are not equitable compared to our colleagues in other disciplines.”

Limited access

During the hearing, lawyer Kendra Albert said the preservationists had proposed the idea of human review of requests for remote access to “strike a compromise” between “concerns of the ESA and the need for flexibility that we’ve emphasized on behalf of preservation institutions.” They compared the proposed system to the one already used to grant access for libraries’ “special collections,” which are not made widely available to all members of the public.

But while preservation institutions may want to provide limited scholarly access, Englund argued that “out in the real world, people want to preserve access in order to play games for fun.” He pointed to public comments made to the Copyright Office from “individual commenters [who] are very interested in playing games recreationally” as evidence that some will want to exploit this kind of system.

Even if an “Ivy League” library would be responsible with a proposed DMCA exemption, Englund worried that less scrupulous organizations might simply provide an online “checkbox” for members of the public who could easily lie about their interest in “scholarly play.” If a human reviewed that checkbox affirmation, it could provide a legal loophole to widespread access to an unlimited online arcade, Englund argued.

Will any restrictions be enough?

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.” And that’s before you account for the significant resources needed to provide remote access to those collections; Rhizome Preservation Director Dragan Espenschied said it costs their organization “thousands of dollars a month” to run the sophisticated cloud-based emulation infrastructure needed for a few hundred users to access their Emulation as a Service art archives and gaming retrospectives.

Salvador also made reference to last year’s VGHF study that found a whopping 87 percent of games ever released are out of print, making it difficult for researchers to get access to huge swathes of video game history without institutional help. And the games of most interest to researchers are less likely to have had modern re-releases since they tend to be the “more primitive” early games with “less popular appeal,” Salvador said.

The Copyright Office is expected to rule on the preservation community’s proposed exemption later this year. But for the moment, there is some frustration that the industry has not been at all receptive to the significant compromises the preservation community feels it has made on these potential concerns.

“None of that is ever going to be sufficient to reassure these rights holders that it will not cause harm,” Albert said at the hearing. “If we’re talking about practical realities, I really want to emphasize the fact that proponents have continually proposed compromises that allow preservation institutions to provide the kind of access that is necessary for researchers. It’s not clear to me that it will ever be enough.”