Copyright Law Is Eating Away At Our Cultural History: And It's Time To Fix That

from the archiving-history-is-great dept

If you weren’t under a social media-less rock a few weeks ago, you hopefully heard about the Internet Archive releasing over 2,000 MS-DOS video games, playable in the browser. As I noted to someone on Twitter, it was like half of my childhood on the screen. What I found truly amazing was that with every excited Twitter or Facebook comment I saw, it was about a different game. For me, it was things like Oregon Trail, Pole Position, Lode Runner and Championship Baseball (and also some college memories of avoiding studying by playing Scorched Earth — hey, at least it sorta felt like I was learning physics). But for others it was something entirely different. Each person seemed to latch onto their own moment in history (and a new chance to procrastinate or waste time by reliving that experience).

This, of course, was only the latest in an ongoing effort by the Internet Archive, led by Jason Scott (who has been involved in all sorts of archival efforts of internet content and video games and made a documentary about text adventure games called Get Lamp). Andy Baio has a great post up discussing this work and how important it is that it’s being done by the Internet Archive, rather than a giant corporation. As he notes, while Google used to really focus on similar archival projects, in the recent past, it seems to have let that focus fade, which is quite disappointing.

Of course, in discussing the possible reasons why Google’s archival efforts have stagnated, Baio tosses out a few suggested reasons, including the lack of profitability, but also, the potential legal liability. After all, Google is still fighting in court about the Google book scanning project, and the focus of that project seems much more about pushing people to buy books, rather than being able to do useful searches through that huge corpus of knowledge.

Baio is (quite reasonably) thrilled that the Internet Archive has been willing and able to step up, and notes that the video game archive shows how is a lot more than just saving old websites: it’s about preserving our cultural history.

But, other than that one offhand mention of the risk of legal liability to explain Google’s dropping the ball on similar stuff, Baio leaves out the related issue of copyright and the DMCA (which he knows about all too well from personal experience). This isn’t a fault of Baio’s article, he’s just focused on something else. But the copyright aspect is really important — especially right now.

That’s because the main reason why the Internet Archive is allowed to do this kind of thing is because it was lucky enough to get one of the semi-arbitrary DMCA triennial review exemptions that lets them break old DRM for the purpose of archiving vintage software. But, even then, it’s not entirely clear that what the Internet Archive is doing is fully protected today. Furthermore, as we saw a few years ago with unlocking mobile phones, the Librarian of Congress can simply delete those exemptions on a whim.

And, right now, we’re in the middle of the DMCA exemption process yet again, with a bunch of requests on tap — including an important one from the EFF [pdf] to allow such activities:

Proposed Class: Literary works in the form of computer programs, where circumvention is undertaken for the purpose of restoring access to single-player or multiplayer video gaming on consoles, personal computers or personal handheld gaming devices when the developer and its agents have ceased to support such gaming.

Baio’s article talks about how projects like the one at the Internet Archive are magical in preserving history and giving us access to “all of computing history… accessible from a single click.” This is incredibly important — but copyright law is standing in its way. This isn’t about “piracy” in any real sense. The games and software being discussed are not being sold anywhere. The hardware that it worked on is long gone. This is about preserving our cultural history — something that industry appears to have no interest in doing, in part because copyright law itself makes it so risky.

If you think things like this are important too, I also suggest heading over to the Digital Right to Repair site where they’ve made a really easy form for you to share your thoughts with the Copyright Office as it considers the latest exemption requests. The Copyright Office also has its own form, but it’s government-level cumbersome. The Digital Right to Repair site is much easier to use. It has some pre-selected text for the various exemptions being debated, but also (very easily) allows you to write your own thoughts (which you should).

One of the key factors in the decision over what to exempt and what not to exempt is a demonstrated “market need” and you can help make the case by sharing your story with the Copyright Office.

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Comments on “Copyright Law Is Eating Away At Our Cultural History: And It's Time To Fix That”

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Megahurtz says:

How is this legal?

Let me preface by saying my reaction mirrors Mike’s and I think this is an awesome service being performed by But how is what they’re doing legal?

I get that they have the exception to crack DRM on “formats that have become obsolete”, but how does that allow them to redistribute those archival images to anybody who visits their webpage? On the first page alone, I see Wolfenstein 3D which is currently available for purchase on Steam (from the original publisher, who is still in business!). How is something like that put up there? I thought abandonware had been dismissed as a legal theory.

Same question applies to their console and arcade offerings.

Anonymous Coward says:

Re: How is this legal?

Wolfenstein 3D is a bad example, since that one specifically has been released into the public domain by Id. Perhaps the same goes for all the others that are there (and since I couldn’t find one of my own old favorites, perhaps that one wasn’t).

But I was kind of wondering the same thing. In fact, I kind of half suspect that the internet archive is hoping they are challenged, just so they can say ‘why not’ and cause some real change.

Either way, +1 on the kudos for the archive.

Megahurtz says:

Re: Re: How is this legal?

Nope. “Back to Demo” refers to going back to the pre-recorded “attract mode” that shows gameplay. If you enter the New Game menu, you are able to select any of the 6 episodes to begin at. The demo/shareware version of Wolf3D only had the first episode.

Full game. has the Wolf3D shareware uploaded elsewhere, but I don’t think you can stream it through DOSBox.

Ninja (profile) says:

Re: How is this legal?

Good question but I ask you: why is it ethical? Because it is. They are preserving culture to the posterity. In the eyes of the MAFIAA even Libraries wouldn’t exist or would be severely crippled while they (the MAFIAA) wouldn’t lift a finger to preserve such culture (remember the tons of old movies rotting in their archives?).

It matters not if it is legal when you are talking about preserving culture and we should be changing the laws to reflect this very simple and enormously important point.

Anonymous Coward says:

Re: How is this legal?

One could make the argument that this is fair use—and we should, as should the Internet Archive if challenged. This is being used for nonprofit historical purposes (the Archive is even a registered library, which should help). And the theory of “abandonware” hasn’t been dismissed, exactly: “the effect of the use upon the potential market for or value of the copyrighted work” is a factor of fair use that works in favor of abandonware. (It’s not the only factor though.)

Manabi (profile) says:

Time for a new organization to fight for the public domain

I’ve thought about this for a while now, but I think one thing we really need is a new organization, one called something like “Citizens for the Public Domain” or maybe “Public Domain Defenders”. The beauty of this organization will be its ability to throw the copyright maximalists’ rhetoric right back at them, but now framed as defending the public domain.

Instead of talk of pirates “stealing” digital copies of stuff, this organization can talk about how copyright maximalists really are stealing the public domain from us, year by year, and wanting to take even more of it. And you know, maybe all those pirates are just reacting to that and taking the public domain back with their own hands. Sure you can argue against this, but it’s harder, and it comes off as an attack on the public, not “protecting starving artists” any longer.

There are other examples too, but I’m having a bad day with my health (lots of pain) and can’t remember all I had come up with. I’ll reply with more if I can remember them. I do think this would help, even if it couldn’t get the public’s attention (since mainstream media is unlikely to report on anything that’s not in copyright maximalists’ favor), it could get congress’ attention. It might be the difference between yet another copyright extension and/or more draconian copyright laws getting passed and them not. And it would put copyright maximalists on the defensive, which is always good. And like I mentioned above, it helps to reframe all of the maximalists attacks as the attack on the public they really are, making it harder for them to gain ground.

Anonymous Coward says:

so has the EFF managed to get in first this year with a higher payment to those who make the decisions on exemptions? it’s the only way there will be exemptions that are worth having! it doesn’t matter how much sense it makes to give something the go ahead, a certificate, money talks and prevents it from happening because ‘an industry wants it stopped’!!
i seriously doubt if there is a more corrupt political sphere that tops the USA. i could count on one hand the number who aren’t in league with various industries just for the money and against the people supposedly being served! disgraceful way to act!!

Rekrul says:

Re: Re:

Given this, I certainly hope someone, ideally several someones in various locations have made complete backups of what they are offering, just in case.

Most of the games can’t be downloaded, so there’s no way for people outside of to make backups.

I’ve made my own backups, some from originals, some downloaded, but that’s only for the games I personally like.

In each case, I throw a copy of the Daum SVN DOSBox into the directory with the game, make a nice menu in the DOSBox .CONF file to run the game or the setup (or other options like high/low res), image the data track of the CD to an ISO file, rip the audio tracks to MP3 files (Daum SVN version allows MP3, official version only allows OGG), make a .BAT file to run the game and I end up with a completely self-contained installation that can be run from any drive or even a USB thumb drive. For archival purposes I just Rar the entire directory. 🙂

Rekrul says:

Here’s how to fix this copyright mess (there’s not a chance in hell of any of this every happening though);

1. Change copyright back to an opt-in system. Getting a copyright on something would be free, but would require you to fill out and submit a form. There would be a grace period of a year, just in case someone screws up.

2. Each copyrighted work automatically gets X amount of years of copyright protection. Say five years for video games, 10 years for movies, 20 years for songs, etc. The length would be determined by how quickly each type of work becomes “outdated”.

3. Once the automatic copyright term expires, the copyright holder can renew the copyright indefinitely by paying an escalating yearly fee, which starts at $1 for the first year and doubles each succeeding year. When the copyright holder no longer pays the fee, the work becomes public domain.

4. Each copyright holder must turn over a pristine, DRM-free, archival quality copy of each copyrighted work to a third party for preservation. The copies can be digital or analog, but must be in a form that can easily be duplicated. These copies would be held until such time as the copyright expires, at which time they become public domain and the public may obtain copies directly from the archive for a small service fee. They would also be fee to copy the work for others or even sell it themselves. Releasing any work before it becomes public domain would carry criminal charges. It would also be a crime for a copyright holder not to provide an archival copy of their work.

5. When licensing one type of work for use in another (for example, licensing a song for use in a movie), the license would be perpetual for all uses of that work. In other words, studios would no longer need to separately license music for the DVD release, or streaming, etc.

6. Once a work becomes public domain, it cannot ever be copyrighted again. New adaptions of that work can be copyrighted, but the original will remain public domain forever.

Like I said, there’s zero chance of any of these ideas ever becoming reality, but they would fix most all the problems with the current, broken copyright system.

Ninja (profile) says:

20 years seems too much for a song and even with the escalating fees to renew the copyright it should still be capped at a reasonable point where a person can work on it free of strings within their lifetime. I think a maximum of 28 years seem reasonable and the fees should increase faster with a minimum based on either a determined chart or a % of the revenues generated by the work in question, whichever is greater. We also need better protections for personal use. I also don’t like treating it as a criminal issue.

But overall it seems reasonable.

Rekrul says:

Re: Re:

20 years seems too much for a song and even with the escalating fees to renew the copyright it should still be capped at a reasonable point where a person can work on it free of strings within their lifetime.

That was just off the top of my head.

I think a maximum of 28 years seem reasonable and the fees should increase faster with a minimum based on either a determined chart or a % of the revenues generated by the work in question, whichever is greater.

Doubling the fee each year adds up quickly. To renew copyright for a 20th year would cost $524,288. The following year it would be $1,048,576 and so on. At 30 years, it would cost $536,870,912. And that’s for a single work. Imagine a movie studio with 100+ movies in its archives.

If you base the fees on the revenues, the copyright holder can always get creative with the books to pay less. This way, there’s no dispute what they have to pay.

Also, by not setting a hard limit, the copyright holder is free to hang onto the copyright for as long as they can afford to. That way they can’t argue that they’re being forced to give up the copyright after some arbitrary length of time. Of course eventually it would reach a point where they can no longer afford the fees and would be forced to give it up anyway.

As a bonus, think of all the money the government would be making off the copyright fees.

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