Can an online library of classic video games be legal?

Zoom in / Q*Bert is so bright, I have to wear shades.

Urich Lawson | Getty Images | Gottlieb

For years now, video game preservationists, librarians, and historians have been asking for a DMCA exemption that would allow them to legally share emulated versions of their physical game collections with researchers remotely over the Internet. But those conservatives still face opposition from industry trade groups, which worry that an exemption would open a legal loophole for “online arcades” that could give members of the public free, legal, and widespread access to classic copyrighted games.

This long-standing argument was joined again earlier this month Testimony broadcast live Before the Copyright Office, which is examining the new DMCA rules As part of its regular process conducted every three years. During that testimony, representatives spoke Network preservation software And the Library Copyright Alliance They defended their proposal for an “individual human review” system to help ensure temporary remote game access is granted “primarily for the purposes of private study, scholarship, teaching, or research.”

Attorney Steve Englund, who represented the ESA at the Copyright Office hearing.
Zoom in / Attorney Steve Englund, who represented the ESA at the Copyright Office hearing.

Speaking for the Entertainment Software Association trade group, attorney Steve Englund said the new proposal had “not much movement” from supporters and was “incomplete at best.” When asked what would constitute “full” enough protection to satisfy the ESA, Englund declined.

“I don't think there is currently any set of restrictions that ESA members would support to provide remote access,” Englund said. “IPR organizations want a lot of discretion to handle high-value intellectual property. They have not yet shown willingness on their part in a way that might be comfortable for the owners of that intellectual property.”

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Stand in the way of searching

Research institutions can currently provide remote access to digital copies of works such as books, films, and music due to DMCA exemptions issued by the Copyright Office. However, there is no similar exception allowing temporary digital copies of video games to be sent to interested researchers. This means that museums like the Museum of Powerful Play cannot provide access to their comprehensive gaming archives unless the researcher physically makes the trip to their headquarters in Rochester, New York.

Currently, the only way for researchers to access these toys in the Strong Museum's collection is to visit Rochester, New York in person.
Zoom in / Currently, the only way for researchers to access these toys in the Strong Museum's collection is to visit Rochester, New York in person.

During a recent hearing by the Copyright Office, industry lawyer Robert Rothstein tried to argue that this amounts to more of a “travel problem” than a legal problem requiring new rules. but New York University professor Lynn Nooney He argued that the need to travel represented a “major financial and logistical barrier to conducting research.”

For Noni, getting from New York City to the Strong Museum in Rochester would require a five- to six-hour drive “on a good day,” they said, plus an overnight stay for any research that might take more than just a short time. Part of one day. Because of this, Nooney has only been able to reach the powerhouse group twice during her career. For researchers who live further afield – or for graduate students and researchers who may not receive the same amount of funding – even a single research visit to The Strong may be out of reach.

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“Don't go there just to play a match for a few hours,” Nooney said. “Frankly, my colleagues in literary studies or film history have routine and regular access to digital versions of the things they study…These barriers are real and significant and they hinder research in ways that are unfair compared to our colleagues in other disciplines.”

Limited access

Attorney Kendra Albert.
Zoom in / Attorney Kendra Albert.

During the hearing, Attorney Kendra Albert Conservationists proposed the idea of ​​human review of remote access requests to “find a compromise” between “ESA’s concerns and the need for flexibility that we have emphasized on behalf of conservation organizations,” he said. They compared the proposed system with the system already used to grant access to libraries' “special collections,” which are not widely available to all members of the public.

But while conservation institutions may want to provide limited scientific access, Englund argues that “in the real world, people want to maintain access in order to play games for fun.” He pointed to public comments submitted to the Copyright Office by “individual commenters.” [who] Very interested in playing games recreationally” as evidence that some would want to exploit this type of system.

Even if the Ivy League library were responsible for the proposed DMCA exemption, Englund expressed concern that less scrupulous organizations might simply provide an online “checkbox” to members of the public who could easily lie about their interest. With “scientific play”. If a human reviews this checkbox confirmation, it could provide a legal loophole for widespread access to unlimited online gaming, Englund said.

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Would any restrictions be enough?

VGHF Library Director Phil Salvador.
Zoom in / VGHF Library Director Phil Salvador.

Phil Salvador of the Video Game History Foundation said Englund's concern about this outcome was overblown. “Building a video game collection is a specialized skill that most libraries don't have the human labor, expertise, resources, or even interest to do,” he said.

Salvador estimated that the number of institutions capable of building a physical collection of historic games is in the “single digits.” And that's before you take into account the significant resources needed to provide remote access to those collections; Director of Rhizome Conservation Dragan Espenshaed Running the sophisticated cloud simulation infrastructure needed for a few hundred users to access their organization costs “thousands of dollars a month,” he said. Emulation as a service Technical archives And Retrieve games.

Salvador also pointed to a VGHF study conducted last year that found that 87 percent of games ever released are out of print, making it difficult for researchers to access large swaths of video game history without institutional help. Salvador said the games most interested in researchers are unlikely to have been recently re-released because they tend to be “more primitive” early games with “less popular appeal.”

The Copyright Office is expected to issue a decision on the proposed exemption to the conservation community later this year. But for now, there is some frustration that the industry has not been at all receptive to the significant compromises the conservation community feels it has made on these potential concerns.

“None of that will ever be enough to reassure these rights holders that it will cause no harm,” Albert said at the hearing. “If we're talking about practical realities, I really want to emphasize the fact that proponents are constantly proposing compromise solutions that allow conservation organizations to provide the kind of access necessary for researchers. It's not clear to me that this will ever be enough.”

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