The US Copyright Office rejects a proposal to legalize the online lending of unavailable retro games
The
Ninth Triennial Section 1201 Proceeding, 2024 Cycle | US Copyright Office
https://www.copyright.gov/1201/2024/
Statement on the DMCA 2024 triennial review ruling | Video Game History Foundation
https://gamehistory.org/dmca-2024-statement/
Video game preservationists have lost a legal fight to study games remotely - The Verge
https://www.theverge.com/2024/10/25/24279657/us-copyright-dmca-exception-extension-denied-remote-access
According to the results of a survey reported by VGHF in 2023, 87% of games released in the United States between 1960 and 2009 are no longer available through normal means. VGHF finds academic value in games that are difficult to obtain and is working to preserve retro games to help with game history research.
87% of games released in the past are no longer playable - GIGAZINE
At the time of writing, access to the VGHF game archive requires a physical visit to the VGHF base. VGHF aims to create a 'system to lend virtual copies of games online, similar to an e-book library,' so that researchers in remote locations can access the games, and has asked the U.S. Copyright Office for an exception to the Digital Millennium Copyright Act (DMCA) .
The US Copyright Office reviews the DMCA exceptions every three years. On October 28, 2024, the ninth exception review report was released, revealing that VGHF's request had been denied.
The US Copyright Office explained its reasons for rejecting the VGHF's request, saying, 'The VGHF is correct in its assertion that there is no resale market for some retro games. However, there is a 'healthy' market for other retro games, and the games industry is making a 'more concerted effort' to resell the games.' 'We appreciate that the VGHF proposes broad safeguards to curtail recreational access to retro games. However, the VGHF's safeguards are not specific enough to conclude that they would prevent market harm.'
The US Copyright Office also claims that, based on a speech by VGHF founder Frank Cifaldi at GDC , 'game emulation technology has historically been associated with piracy. For this reason, there are potential concerns about VGHF's use of emulation technology.' On the other hand, Cifaldi posted, 'In response to my speech at GDC saying that 'it is wrong to associate emulation technology with copyright infringement,' the US Copyright Office's representative has concluded that 'emulation technology is associated with copyright infringement,'' criticizing the US Copyright Office's decision.
The moment I became the Joker is when someone in charge of copyright law watched my GDC talk about how it's wrong to associate emulation with piracy and their takeaway was 'emulation is associated with piracy.' pic.twitter.com/GV0BC3017T
— Frank Cifaldi (@frankcifaldi) October 25, 2024
In response to the US Copyright Office's decision, the VGHF commented, 'Unfortunately, progress is being hindered by lobbying from rights-holding groups. In the midst of discussions with the US Copyright Office, the Entertainment Software Association (ESA) declared that it 'does not support remote game access for research purposes under any circumstances. The games industry's absolutist policies force researchers to seek extraordinary means to access out-of-print games.'
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