There are a lot of things people are not allowed to do under US copyright law, but perhaps just as importantly there are exemptions too.
The U.S. Copyright Office regularly reviews these exemptions to Section 1201 of the DMCA, which prevents the public from ‘tinkering’ with DRM-protected content and devices.
These provisions are renewed every three years after the Office hears various arguments from stakeholders and the general public. This also allows interested parties to suggest new exemptions.
During the last update in 2018, there was a small but significant win for nostalgic gamers. To preserve ‘abandoned’ games for future generations, the Copyright Office expanded the game preservation exemptions to games that require an online component.
This was a crucial addition, as most games nowadays have an online aspect. With the new exemption, preservation institutions that legally possess a copy of a video game’s server code and the game’s local code were allowed to break DRM and other technological restrictions to make these playable.
This type of “tinkering” is now seen as fair use by the Government, which rejected critique from the major game companies who feared that libraries and museums might exploit this right for commercial purposes, which would hurt their sales.
A few weeks ago the Copyright Office started its latest review of the DMCA exemptions which will be updated next year. Since then, several submissions from archivists, digital rights, and consumer organizations have come in. Several of these ask the Office to renew the current exemptions for abandoned online games.
The Software Preservation Network (SPN) and the Library Copyright Alliance (LCA) note that this new exemption ensures that classic games will be preserved. This allows nostalgic gamers and younger generations to play older games that are no longer officially supported. This has already led to some success stories.
“For instance, Georgia Tech Library’s Computing Lab, retroTECH, has a significant collection of recovered video game consoles, many of which are made accessible for research and teaching uses by the §1201 exemption. Dozens of Gameboy Advance, console and PC games can now be preserved, with lower risks of copyright infringement claims or legal action,” SPN and LCS write.
The call to renew the exemption is supported by the nonprofit group Consumer Reports, which notes that the exemption “has proven very beneficial to consumers in removing this obstacle to preserving the functionality of video games they enjoy.”
In addition to renewing the current rules, SPN and LCS have also requested an expansion. At the moment, they are allowed to break DRM, if needed, but these games can only be made available inside the premises of ‘eligible’ institutions such as libraries and museums.
In a new submission, both groups ask the Copyright Office to drop this restriction.
“SPN and the LCA request expansion of the video game preservation exemption […] to eliminate the requirement that the program not be distributed or made available outside of the physical premises of an eligible institution,” they write.
As always, the current DMCA review will take a few months to be completed. While the request will certainly be considered, it’s possible that games companies will object to the new suggestion, as they have done repeatedly in the past.
Much of the credit for getting the Copyright Office to adopt the present exemption goes to San Francisco’s Museum of Art and Digital Entertainment (The MADE), which filed its petition three years ago.
The Museum, which is loved by many gaming fans, recently had to close its doors and put its collection into storage. However, like many abandoned games, it’s not gone forever. The MADE is currently raising money to respawn elsewhere.