The Battle to Preserve Video Games: Legal Setbacks Hinder Progress

The task of preserving video games is not typically undertaken by major corporations but rather driven by dedicated community efforts relying on their own resources. For many preservationists, simply documenting and maintaining the legacy of digital media is a compelling reason to protect this part of history, especially as gaming is increasingly recognized as a form of art. However, safeguarding these games has become more challenging, particularly following recent decisions by authorities and industry groups.

The Video Game History Foundation recently announced that the U.S. Copyright Office has denied a proposed exemption to the Digital Millennium Copyright Act (DMCA), which would have facilitated the preservation of video games.

Over the past three years, the foundation, alongside the Software Preservation Network (SPN), has advocated for legalizing digital access to video games stored in libraries and large archives. Their proposal included a secure, in-person registration process to ensure only authorized individuals could access these materials.

Despite this, companies represented by the DVD Copy Control Association and the Entertainment Software Association (ESA) opposed the proposal. Industry representatives argued that there was a "significant risk that preserved video games would be used for recreational purposes."

They also claimed that broadening the exemption would give preservation groups excessive discretion over how to provide remote access, without sufficient safeguards to limit usage strictly to education or research. Additionally, they expressed concern that removing the restriction on physical premises could negatively impact the existing market for older video games.

In response, the Video Game History Foundation expressed disappointment, noting that "around 87 percent of video games released in the United States before 2010 remain out of print." The foundation also criticized the ESA, accusing the gaming industry’s "absolutist position—which the ESA’s own members have declined to publicly endorse—of forcing researchers to seek extra-legal means to access the vast majority of out-of-print video games that are otherwise unavailable."

Despite this setback, the foundation remains committed to its mission and called on industry members who care about video game preservation to join their efforts.