Study: The Overwhelming Majority Of Historical Video Games Are Endangered
from the lost-to-history dept
Video games are a form of art and a form of expression. While that used to be somewhat controversial to state decades ago, nobody of any value really argues that point any longer. And the moment you accept that simple fact, it throws into light how absolutely absurd it is that the preservation efforts of libraries and museums are so severely hampered for this one type of art compared with others, such as music and film. Industry lobbying groups have been able to successfully block getting these institutions exemptions from copyright law to better share this cultural history with the world by stating two rebuttals: such cultural sharing would hurt the industry’s sales, and it’s all unnecessary anyway because the industry is already preserving games and making them available to people.
The first point is a silly one. Why should libraries preserving and making available historical video games be any more of a threat to the industry than their handling of books, film, and television? It shouldn’t. All libraries are asking for is for the same rules to apply, but currently these institutions can only share this art on-premise, versus being able to make it available digitally. It’s an uneven playing field.
As to the claim that the industry is doing this all just fine already, well, the always great Video Game History Foundation has put out a study demonstrating that the industry has done an absolute shit job of this, actually.
The Video Game History Foundation, in partnership with the Software Preservation Network, has conducted the first ever study on the commercial availability of classic video games, and the results are bleak. 87% of classic video games released in the United States are critically endangered.
Imagine if the only way to watch Titanic was to find a used VHS tape, and maintain your own vintage equipment so that you could still watch it. And what if no library, not even the Library of Congress, could do any better — they could keep and digitize that VHS of Titanic, but you’d have to go all the way there to watch it. It sounds crazy, but that’s the reality we live in with video games, a $180 billion industry, while the games and their history disappear.
Nearly 90% of the cultural output of an entire industry is at risk of simply disappearing, save for the efforts of the online piracy community, which are, of course, regularly vilified. That’s a crazy number. It’s also a number that is purely anathema to the very point of copyright: the granting of a temporary monopoly on artistic output to eventually reach the public domain in exchange for more cultural output. If the industry isn’t going to bother preserving the cultural output, and if preservation institutions are prohibited from being able to properly preserve that output and make it available to the public, then the deal becomes entirely one-sided. The industry gets its monopoly and makes its money, while the public loses out on the output once the dollars stop rolling in.
This is where libraries and archives should come in. Anyone should be able to easily explore, research and play classic video games, in the same way that they can read classic novels, listen to classic albums, and watch classic movies. But outdated copyright laws are preventing institutions like ours from doing our jobs.
The next rulemaking proceeding under the Digital Millennium Copyright Act (“DMCA”), Title 17, section 1201, of the United States Code is scheduled for 2024. We’re hopeful that this study will incite change, and that video game preservation will become stronger — before we lose more.
This is one of those situations where if nothing is done and art is lost, there’s little chance of ever getting it back. Again, the only ask here is for video games to be treated like other forms of art. It’s not much of an ask, frankly, and the fear-mongering that groups like the ESA have engaged in should be treated like so much pablum.
Filed Under: archives, copyright, history, video games
Comments on “Study: The Overwhelming Majority Of Historical Video Games Are Endangered”
Once again, we have proof that copyright is anathema to culture. If copyright terms were far shorter than they are nowadays—for example, a mere 20 years long—we could preserve every pre-PS2 game forever. But nope, we have to break the law so this part of our culture can be properly preserved. Anyone who thinks that’s a bad thing needs to rethink their entire worldview.
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we have to break the law so this part of our culture can be properly preserved.
And therein lies the only hope for preservation- self-sacrificing thieves whose “crime” is leaving behind records that innocent people can observe and partake in. We will appreciate the sacrifice and continue relaying that information to the future and to other countries and eventually we can beat copyright.
Well, there’s more at work here: there’s no one standardized format to share video games in. For example, good luck sharing many current or previous generation games off-premise OR on-premise in a decade, as they depend on a call-home server that will no longer be running, require the player to download signed DLC content, and often integrate to an online gaming service that will no longer exist.
In short, what is made available to the libraries (and consumers at large) is just a gateway to the work of art, and not the work of art itself.
And then at the other end of the spectrum, you’ve got things like UniRacers for SNES, where it should technically be possible to share it under emulation off-premises, but nobody today has the legal right to allow for this, because Pixar already forced the game out of stores while it was still new, due to a copyright conflict over the similarity between the red unicycle and Pixar’s unicycle character Red in their 1987 short “Red’s Dream.”
To be fair, this sort of thing happens with other media sometimes too; there are e-books that are no longer accessible because the publisher lost the right to distribute the work, so the license keys got revoked, and now the licenses that the libraries got to share the work are useless.
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Libraries can’t even buy many commercial video games because they’re not even sold. Only limited, non-transferrable licenses are sold. So there is a legal barrier in addition to a technical barrier.
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Can concur with this. There’s a few games for the PS2 I was lucky to play when I had a functioning device, but the companies that made them simply aren’t around anymore and there’s absolutely no interest in remaking or revamping them for modern consoles or PC. And PS2 emulation is still dogshit even for most gaming computers. All the original creators can do is Kickstart for a new spinoff that vaguely resembles the original.
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It goes slightly deeper than that. There’s the issue of “orphaned works”, an ever-present problem with overreaching copyright where it’s unclear who, if anyone, actually owns the copyright for a given title, but even though it’s therefore impossible to get permission it’s still illegal to do anything with an older title.
There’s also legal issues when the owner(s) is/are somewhat known – a great example that commonly comes up is No One Lives Forever. There’s absolutely interest in a revamp/sequel to that game, and it’s quirky an original enough to be appealing even to people who never played the original, but there seems to be an impasse where several rights owners are unwilling to grant permission due to possible conflicts with other rights owners.
https://en.wikipedia.org/wiki/The_Operative%3A_No_One_Lives_Forever#Possible_re-release
“No interest” might be true in many cases, but it’s more insidious when there is interest but the copyright supposedly “protecting” the sales of the older copy is actively preventing people from even attempting to do something with the property.
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This situation is so funny because if someone did release it, the other potential rights owners will start a lawsuit and find the paperwork saying they own the rights.
Everyone claims they may or may not have clear ownership of the game.
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And the most frustrating aspect is that if the people who want to stop a re-release may or may not have clear ownership, how can they stop it in the first place? That claim of maybe possibly owning the rights is so comically weak that it should be ignored by the courts
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I’m a little surprised none of the parties who claim to hold the IP have gone to court for the sake of clearing up this confusion. Then again, taking the claim to court only to lose would be one hell of a shooting-your-own-foot situation.
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Exactly, they could go to court and claim that someone’s copyright is being infringed but not their own. Since infringement is often likened to car theft, would they have any standing trying to vouch for someone else who couldn’t be bothered to try and get their stolen car er, idea back?
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You explained it far better than I cursorily touched on the topic, and thank you.
fear-mongering that groups like the ESA
The European Space Agency? European Speedrunners Assembly?
Oh, Entertainment Software Association. Probably those guys.
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The European Speedrunners Assembly have done far more to unfuck the problems caused by our fucked up society than the Entertainment Software Association.
This is the issue with granting copyrights. People/corporations think they own the ideas. They temporarily own the rights, society owns the ideas. In cases like this, where they benefited from copyright and are letting the works die, they should have to pay back any money they made, and lose the right… the copyright that is.
Re: They don't own the ideas, even temporarily
They enjoy a temporary monopoly on the expression. Ideas are the subject of patent, not copyright – and patented ideas have to demonstrate utility.
At least that’s what the law says. What happens in practice is that people with enough money enjoy the power of imprimatur.
Copyright is theft
You know what else “hurts industry sales”? People having their own tastes, and thus not buying every game from every genre.
The “it hurts sales” argument is entirely unconvincing when alone. The only time it makes sense is when attached to an existing problematic/illegal action by specific and narrow 3rd party groups to explain an injury. That they bring it up here is tantamount to saying that they have no argument.
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“It hurts sales” is meaningful only when it refers to the sales of the copyrighted work. Hurting the sales of other properties is (at least under the law) irrelevant to copyright protection. Of course, other torts, such as defamation, interference with contract, and so on, could also have “hurts sales” as part of the calculus of damages, but copyright protects the sales only of the copyrighted work.
Of course, as I observed above, those with enough money enjoy the power of imprimatur.
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It’s also generally nonsense, based on the idea that every unauthorised download is a lost sale. But, there’s generally many reasons why someone downloads such a thing, from them not having the money to pay, to the original not being available to buy, to the fact that the legal owner of the original just wants a version not infected with DRM.
It does no such thing. It means that legally only the person who owns the copyright should benefit from it, but for the reasons I mentioned above and others, it’s not very effective at that.
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all this complaining is unnecessary. The preservation entities that I’ve seen followed the law and asked for permission to include the game to their collection. That simple operation where they dig through the internet and find correct person to ask for permission kinda made the rest of the complaining unnecessary.
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That’s a lie, Tero.
You don’t believe any sort of preservation is legal. You think all preservation is a violation of stricter copyright law.
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Well, these preservation folks used some cunning trick that even stricter copyright folks approve: ask for permission from the author.
There has been exactly 2 attempts to get permissions for my 1993-1994 game and preservation folks were the first one to successfully execute those permission request steps. The 2nd one was some game clone permission.
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Nah, stricter copyright folks don’t approve anything. They believe that everything has to be paid for in blood money, even when it’s not necessary.
This means very little if you don’t actually grant the permission. From your posts, it’s quite clear that you don’t believe in the preservation of anything, because you’re terrified people would rather pay attention to those things than Meshpage.