ESA Once Again Comes Out Against Video Game Preservation Efforts
from the mine-mine-mine dept
I talk quite a bit about video game preservation efforts for a couple of reasons. First, I’m just a huge gaming nerd and it is almost physically painful to think that the cultural output of this artform can be lost to history at the whim of publishers that have the ability to shutdown backend servers or otherwise disappear these games from the universe. Second, those that oppose preservation efforts do so without a coda to their opposition. In other words, they tend to simply say “no!” without offering any alternative methods for preserving this shared cultural history. And, finally, it simply a fact that the loss of this culture almost perfectly negates the bargain that is copyright to begin with. The point of the law is to offer a limited monopoly on artistic content as a financial incentive, but that such content will eventually end up in the public domain. If the content disappears entirely, it never goes into the public domain.
On the middle point, the Electronic Software Association, a lobbying group for game and software makers, continues to serve as an example of an obstinant force offering no alternatives. The ESA recently went in front of the Copyright Office for a hearing and reiterated its stance that no carveouts be given to museums and non-profits for the purposes of preserving video game content.
ESA lawyer Steve Englund told the panel that the ESA is still firmly opposed to allowing libraries to preserve older video games. Video game preservationists have lobbied for exceptions to copyright law that would allow for scholarly or educational access to video games. The ESA’s ongoing concern is that civilians would access these games, whether for their own private collections, or to share them with others in violation of the Digital Millennium Copyright Act.
Englund said there exists no “combination of limitations [the ESA] would support to provide remote access.” (via GameDeveloper.com.) His remarks came at a hearing on Thursday. Video game preservation advocate Phil Salvador posted a Twitch stream of the hearing to Bluesky the same day.
Salvador is part of the Video Game History Foundation, a group we’ve talked about in the past and which has preserving video games as its core mission. While the ESA claims that it should be libraries at universities doing any of this preservation work anyway, Salvador told the Copyright Office that it’s simply not being done. And, even if it were, Englund said that the ESA would still have a concern over copyright issues.
What is absent from any of this is literally any alternative for how antiquated games should be preserved instead of simply winking out of existence. As of now, this is purely a binary choice thanks to such opposition: either publishers will preserve the games on their own, or they won’t be preserved at all. And, as we have talked about in previous posts, far too often the latter ends up being the case.
In July 2023, Salvador and the VGHF published a study that said 87 percent of video games released in the United States before 2010 haven’t been preserved in any meaningful way.
“Since 2015, libraries, museums, and archives in the United States have been petitioning the Copyright Office for new exemptions that would make it easier for them to preserve games and make those games available to researchers,” the study said. “Each time, game industry lobbyists have opposed these new exemptions.”
This is completely nonsensical. If the ESA’s stance is that all of this cultural output should be without preservation in the long term, let them come out and say it. It would be one hell of a stance to take. But stated plainly or not, that is the reality of what the ESA is advocating for.
Filed Under: archives, copyright, libraries, phil salvador, steve englund, video game preservation, video games
Companies: esa, video game history foundation
Comments on “ESA Once Again Comes Out Against Video Game Preservation Efforts”
A fair proposition:
Any game that is no longer offered to the market through legal channels should be considered abandonware and therefore legally obtainable through what would otherwise be illicit downloads. This principle extends to downloadable content as well.
The overwhelming majority of games for the first six generations of home consoles, especially “failed” consoles, aren’t legally available through any means other than secondhand purchases. Games for arcades, handheld consoles, and mobile phones face a similar state of affairs. And I don’t even want to imagine how many PC games have been lost to the sands of time. Preservation of these games through “illegal” channels shouldn’t be illegal.
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Which is why when I want to play an older game that’s no longer for sale, I don’t feel bad about acquiring it through other means.
As I’ve shown with GOG, if it’s available for purchase, I will buy it (like all the old Star Trek games they released a while back). If not, well if the publishers don’t want my money, then I won’t feel bad about downloading it from elsewhere.
GOG is one of the few (only?) publishers actively working on game preservation, especially for games that weren’t originally theirs.
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Digital Eclipse, Limited Run, and Blaze come to mind.
The Big Three console manufacturers have done a fairly decent job over the past ~15 years of making at least some old games available, including games by other publishers, though they’re also pretty aggressive about fighting unauthorized efforts by third parties to do the same, so that’s a mixed bag at best.
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And aggressively against authorizing such efforts, which is the largest part of the problem.
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The problem with this is that games are often released with changes. Sometimes it’s minor, sometimes it’s major.
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Ironically, PC games are perhaps the least likely to be “lost to the sands of time”. Some old physical games are difficult to create ROMs of, but for most of them there just isn’t enough interest to do the work necessary to preserve shovelware.
With PC gaming, all you need is someone who stuffed something in a hard drive and then never deleted it. The act of preservation is innate in the game’s ordinary usage and the game only becomes “unpreserved” by affirmative action on the part of its owner (deleting it).
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I take it you’ve never heard the clicking from a dead hard disk style drive. Or dealt with lapsed drm on an older game. Or have had data corruption from a bug in a game.
If you aren’t gonna accept the legal way then you have no right to impede on how we preserve the games anyway.
“Every preserved game is another product that we cant sell a remake of in the future”
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(Continued)
“It also makes it harder when we do remake the game for fans of the original to accept our “design changes”, which include microtransactions for core items, content that gets carved out into new dlc that includes one recolored outfit, at 2x the price the game originally was”
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It’s also harder when they trashed all the source because one hard drive and a backup somewhere was too much burden.
If you won't preserve history then someone else will
Contrary to the hysterical claims by copyright maximalists and the declarations from the same that copyright infringement is a dire threat to creativity and even the global economy stories like this demonstrate time and time again that if culture is to grow and be preserved it will be because of copyright infringement, not in spite of it.
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And sometimes the copyright of the originals is in such a tangled web that official remakes or remasters are unpossible. See: No One Lives Forever, The Simpsons: Hit and Run, etc.
Someone might want to share a game with their social circle and spread good will about it?! Oh, the eldritch horror!
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Now, now, Lovecraft. Calm down.
Why isn't this done by the library of Congress
In France, this all goes to the Bibliotheque Nationale as specific collections preserved by law since 1992 for their cultural significance, just like books. You can actually play on devices.
https://www.bnf.fr/fr/les-jeux-video-la-bnf
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AFAIK, the Library of Congress does preserve video games, but only for historical/academic purposes. Not for player availability purposes.
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Similar to how Nintendo archives all their original data, code, and tools (as revealed by the gigaleak): not for our benefit, but for theirs.
ESA = Eat Shit Association
More than enough resources to not trust them.
For all the BS
It took a call to the WORLD to find most of the episodes of the 1970’s versions of Dr. WHO.
What is the fun of a Single player game, that REQUIRES Access to the net?
What is the fun of a game if you can Add a LAN/Wlan, to allow your friends to play with you, as the SERVERS ARE DEAD.
Its only the Extra’s that you are aelling that Mean you are getting asny money. New shirts, gloves, swords, Pets…..What ever.
The Game itslef. REALLY means nothing tro you.
Criminals do what Criminals do....
Really, there needs to be a form of punishment for these traitors to the public good. That’s these maximalists and their enablers equally.
A hole in the ground?
Old mines could be remediated as workspace and accommodation where we might accidentally forget we put them there.🤔
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The punishment would be that people remember their old games, and send the memory of those games to other innocent people. All they want to do is to keep people from remembering what they made without a payment being made, but people will remember what was made and be able to enjoy it, and all they’ll get is whatever a victim of theft- a Class C misdemeanor- is entitled to.
You know what. Sure.
But they must forever have every game for sale and fully playable.
Fuck the Law
Hoist that black flag.
If it’s not available, then it’s not getting bought. And if I’m unable to buy it, you’re not losing anything when I access it via other means. Hell, based on the ESA’s stances, they’d ban attempts to buy a working arcade machine from several decades ago.
Our lawyers can imagine a scenario where we might lose a few cents if we ever got around to releasing the content, that there is clearly demand for, if people are able to get their hands on it after we’ve taken it off the market.
ESA ha a lot of members who literally believe in erasing the history of ww2 and the concentration camps as “it happened so long ago, stop going on about it”
Holcaust deniers, fascists and horribly bigoted morons make up 99% of the ESA.
stopkillinggames.com
Ross Scott and his legal efforts are the only hope we have left at forcing change for these ridiculous restrictions.