Three years ago, the Software Preservation Network and the Video Game History Foundation put forth a petition to the US Copyright Office to allow libraries to share the out-of-print video games in their possession with researchers remotely. However, that request has now been denied, and it means this battle to keep out-of-print games alive has come to an end.
The copyright office sided with the Entertainment Software Association and other video game lobbyists’ argument that letting libraries share digital access to their titles would lead to “a significant risk that preserved video games would be used for recreational purposes.” Essentially, the argument is that researchers enjoying the remote games would constitute copyright infringement.
The Video Game History Foundation released a statement decrying this decision while pointing out that it helped prove that “around 87 percent of video games released in the United States before 2010 remain out of print.” Video Game History Foundation founder and director Frank Cifaldi also shared his own statement, saying, “I’m proud of the work we and the orgs we partnered with did to try and change copyright law. We really gave it our all, I can’t see what else we could have done. This fails the needs of citizens in favor of a weak sauce argument from the industry, and it’s really disappointing.”
The copyright office’s decision also stated that giving libraries the asked for exemption would potentially harm video game companies’ attempts to repackage and sell their older legacy titles to modern consumers. But as noted by the VGHF, even companies like Nintendo have let many older titles fall out of print or remain unavailable to consumers as downloadable titles.
It’s unclear if video game preservationists can take any steps to challenge this decision. Meanwhile, the ESA already announced earlier this year that it opposes any compromise about sharing out-of-print games remotely among researchers.