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.

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Companies: esa, video game history foundation

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Comments on “ESA Once Again Comes Out Against Video Game Preservation Efforts”

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28 Comments
This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

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.

This comment has been deemed insightful by the community.
Phoenix84 (profile) says:

Re:

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.

Thad (profile) says:

Re: Re:

GOG is one of the few (only?) publishers actively working on game preservation, especially for games that weren’t originally theirs.

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.

n00bdragon (profile) says:

Re:

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).

Anonymous Coward says:

Re:

(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”

This comment has been deemed insightful by the community.
That One Guy (profile) says:

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.

ECA (profile) says:

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.

N0083rp00f says:

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.🤔

Crafty Coyote says:

Re:

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.

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