The US Copyright Office rejects a DMCA exemption that supports remote access to out-of-print games…

The Video Game History Foundation (VGHF) has been working with the Software Preservation Network for three years to enable libraries and archives to provide remote digital access to out-of-print games in their collections. The VGHF explained in its notice that under the current anti-circumvention rules in Section 1201 of the DMCA, these institutions are unable to crack the copy protection on games to make them remotely accessible to researchers.

The Copyright Office’s decision was detailed on page 191 of the Registrars’ Copyright Recommendation, which cited comments from the Entertainment Software Association (ESA) that the VGHF does not propose a clear requirement as to who the user is or why they want access to a game. That is, they don’t really want a game that is actually no longer available (for example, the first episode of The Club; its servers were shut down by Ubisoft, making it unplayable) to be saved in this way…

“The proponents [of video game preservation] have not met their burden of showing that reproducing works to allow multiple concurrent uses in the computer program class is likely to be fair. 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. The VGHF’s position on emulation is inconsistent and incomplete, and the technologies are not addressed in the exemption text,” said Register of Copyrights and Director of the U.S. Copyright Office Shira Perlmutter.

The VGHF claimed in a hearing before the Copyright Office that the ESA has stated that it will never, under any circumstances, support remote access to games for research purposes. The ESA previously opposed a 2018 amendment to the DMCA aimed at preserving abandoned online games.

“The game industry’s absolutist position – which ESA’s own members have refused to support on the record – forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable. We will continue to advocate for greater access and legal preservation of video games, and work with members of the game industry to raise internal awareness of these issues,” the VGHF wrote.

According to a study by the foundation last July, 87% of games are “critically endangered” because they have become increasingly difficult to preserve. Denuvo DRM, for example, plays a big role in this…

Source: Gamesindustry, VGHF