U.S. Copyright Office Presses 'Pause' on DMCA Exemption for Video Games
When we think of a library, we picture never-ending shelves of books; the world's knowledge available to us at the touch of a finger. But nowadays, it's not just physical records that libraries collect. Many now lend video games to their members, providing their local communities with entertainment while helping preserve the software for future generations.
The recent decision by the U.S. Copyright Office (USCO) to reject an exemption to the DMCA for video games in libraries' collections has put that practice into question. The decision prevents video games from being accessed remotely by researchers. While some in the games industry view this ruling as a win for rights holders, others see it as a major setback for arts research, especially compared to researchers in other fields with "routine and regular access" to digital archives.
What Is The DMCA?
Passed in 1998, the Digital Millennium Copyright Act (DMCA) brought the U.S. in line with treaties of the World Intellectual Property Organization (WIPO), updating copyright law for the digital age. Section 1201 of the DMCA criminalizes the "circumvention of copyright protection systems" that prevent unauthorized access to copyrighted works, such as reading encrypted optical discs or removing copy restrictions from electronic documents.
Exemptions are made for some uses, including for nonprofit libraries, archives and educational institutions (section 1201(d)), as long as a "good faith" determination is made. Libraries are permitted to create digital copies of obsolete works for purpose of preservation, but those works must not be commercially available for a "reasonable price" and can only be accessed onsite.
The Petition
The Video Game History Foundation (VGHF) has been working with the Software Preservation Network (SPN) since 2021 on a petition to the U.S. Copyright Office, proposing that the DMCA digital copying exemption be expanded to allow access to games outside of the physical premises of an institution. A study published by the VGHF in July 2023 estimated that 87% of video games released in the US before 2010 are "critically endangered" and inaccessible, being out of print in either physical or digital form. Options to play classic games are limited as many require vintage hardware or are no longer available on a digital storefront, potentially pushing consumers and researchers towards piracy as the most convenient means of access.
The petition's main argument is framed from the perspective of fair use: works kept by archives and collections are exempt from copyright infringement laws if they are used for purposes such as research or teaching. To enable this, the SPN proposed a system of user vetting and copyright notices, allowing institutions to restrict access only to users who submit a research request detailing the scope of their project and providing notices to remind them that their access is subject to copyright law.
The requirement of having to request specific access ensures that games are being used for research purposes, with the SPN citing "academic literacy" as a way of filtering out users planning to access them for entertainment. The USCO already allows institutions to lend other forms of media remotely, and the SPN argued that the DMCA's stringent rules around distribution of software programs places impediments on video game scholarship that are not present in other disciplines.
Arguments Against
The Entertainment Software Association (ESA), a trade association representing the U.S. video game industry, opposed the SPN petition, stating that the exemption would leave rights owners insufficiently protected and that the market for classic video games would be damaged. The SPN's proposed method of fair use vetting was dismissed by the ESA as "illusory", arguing that this was not enough justification for the breadth of use they would enable. It would be too difficult for libraries to supervise multiple users remotely accessing games, thus enabling usage for entertainment purposes.
Furthermore, the ESA contended that the market for classic video games is "vibrant and growing", citing the number of titles currently available on digital storefronts such as the Xbox Game Pass, not to mention frequent re-releases of individual titles on modern systems. That a game is "out of print" does not mean it is lost forever, only that the copyright owner decided not to put it on the market. Allowing widespread remote access to classic games would present a serious risk to the market and prevent copyright owners from enforcing their copyrights.
The USCO Ruling
The USCO observed that, for a fair use exemption, access to the games would have to be guarded against recreational use by containing "appropriately tailored restrictions". The view taken by the ESA on the SPN's proposed restrictions was echoed by the USCO, which ruled that they were not specific enough to prevent market harm and that the SPN had not met the burden of showing that allowing simultaneous remote access by multiple users was likely to be fair.
Regarding the claims of market damage put forth by the ESA, the USCO acknowledged the evidence presented of a "substantial market" for classic video games, and the SPN's concession that the industry has made a greater effort in recent years to reissue older games. Considering these arguments, the Register ultimately rejected the petition, but recommended clarifying the wording used in the DMCA to reflect that a computer program may be accessed by as many individuals as the institution owns copies.
What Does This Mean?
As a newer form of digital media, U.S. law has yet to settle on a definitive classification of what copyrights arise from a video game. A common view is for games to be treated as computer software and for the source code to be considered a literary work. However, unlike "traditional" literary works such as books or newspapers, the interactive nature of a video game makes regulating access to it more complicated.
Games are often limited to their corresponding hardware, potentially leading to research costs going up as researchers may be forced to travel long distances or somehow purchase a retro console for themselves; not to mention potential consideration of extra-legal methods. Researchers are pushed into focusing on works that are easy to access rather than those they have a true interest in studying. Teaching is also affected: academics cannot assign their students games with historical or technological significance if they may not be able to access them (for example, the original Metroid Prime (2002), noted for its female protagonist and being the first game in the series to use 3D graphics, is only available on the GameCube). This curtails the growth of video game studies, introducing obstacles to a field with deepening cultural impact and technological advancement.
In their submission to the USCO, the SPN compared the rise of video games to the film industry, highlighting the creation of the National Film Preservation Board in 1988 as a way of recognizing that films are a part of cultural heritage, worthy of academic preservation and study. Whether games will ever reach that status remains uncertain: they make up a large part of our cultural and entertainment landscape today and it's clear that they are here to stay, but only time will tell whether the USCO's attitudes change.
Related Resources
- Find a Gaming Law Lawyer Near You (FindLaw's Lawyer Directory)
- History and Overview of the DMCA (FindLaw's Learn About the Law)
- Supreme Court Bumps 'Dancing Baby' Fair Use Case (FindLaw's Practice of Law)
