US Copyright Office Denies Exemption in the DMCA That Would Support Access to Out-of-Print Games

by
William D’Angelo
, posted 4 hours ago / 562 Views

The US Copyright Office announced it will not grant a new exemption in the Digital Millennium Copyright Act (DMCA) that would have supported video game preservation.

Section 1201 of the DMCA precents libraries and archives from breaking copy protection on games in order to make them accessible digitally.

The decision by the Copyright Office was details on the Registers’ Recommendation, which states “proponents 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.

“The Register also finds that proponents have not met their burden of showing that the proposed off-premises uses in the video game class are likely to be fair. As proponents have not satisfied their burden to demonstrate that the requested uses are or are likely to be noninfringing, it is unnecessary to engage in an analysis of whether the implementation of technological protection measures on these works has caused adverse impacts on those users.”

The Video Game History Foundation in its own statement said it has been supporting the Software Preservation Network (SPN) over the past three years and it has been petitioning to allow libraries and archives to remotely share digital access to out-of-print video games in their collections. 

“Under the current anti-circumvention rules in Section 1201 of the DMCA, libraries and archives are unable to break copy protection on games in order to make them remotely accessible to researchers,” said the Video Game History Foundation. 

“While we are disappointed by the Copyright Office’s decision, we have no regrets about going through this process. Over the last three years, working on the petition has helped us generate important research, notably our Survey of the Video Game Reissue Market in the United States report, which proved that around 87 percent of video games released in the United States before 2010 remain out of print. Our combined efforts with SPN have raised significant public awareness of these issues and have already made an impact throughout the game industry and preservation communities.

“Unfortunately, lobbying efforts by rightsholder groups continue to hold back progress. During our hearing with the Copyright Office, the Entertainment Software Association (ESA) declared that they would never support remote game access for research purposes under any conditions. The game industry’s absolutist position—which the ESA’s own members have declined to go on the 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.

“We’re not done fighting here. We will continue our advocacy for greater access and legal allowances for video game preservation and working with members of the game industry to increase internal awareness around these issues.”

A life-long and avid gamer, William D’Angelo was first introduced to VGChartz in 2007. After years of supporting the site, he was brought on in 2010 as a junior analyst, working his way up to lead analyst in 2012 and taking over the hardware estimates in 2017. He has expanded his involvement in the gaming community by producing content on his own YouTube channel and Twitch channel. You can contact the author on Twitter @TrunksWD.

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