The U.S. Copyright Office has declined to grant a new exemption to the Digital Millennium Copyright Act that would allow libraries and archives to offer verified researchers remote digital access to out-of-print video games.

The proposed change, which we wrote about in detail back in May, has been endorsed by the Software Preservation Network (SPN) as critical to game preservation. The group argues that the lack of digital availability of out-of-print games due to equipment, technology and supply limitations creates a massive obstacle for researchers and academics who may not live near a library that has a physical copy of a needed game Try available.

However, groups such as the ESA opposed the change, claiming it would harm the company's ability to make money from retro games. In fact, an ESA attorney argued that there is “(no) combination of restrictions that would support (ESA members) providing remote access.” In May, we asked every member of the ESA for comment on the matter, but received only one response.

In the end, the Copyright Office sided with the ESA, stating that the SPN “has not demonstrated that removing the single-user restriction on stored computer programs or allowing external access to video games is unlikely to constitute infringement.” That doesn't mean that the exemption is dead – there will be an opportunity to try again in three years, and the Copyright Office's response seems to prompt them to do so: “It recommends clarifying the single copy limitation language to reflect the preservation institutions.” allow access to a copy of a computer program by as many people as there are legally owned copies. This clarifying text will address the perceived ambiguity in the current exception while maintaining the intended purpose of the single-user limitation to minimize the risk of substitute uses of preserved computer programs.

And in fact, the Video Game History Foundation, which worked with the SPN on the proposed change, released a statement expressing pride in the work of stakeholders throughout the process and indicating that it is not giving up.

We're not done fighting here yet. We will continue to advocate for greater access and legal options for storing video games and work with members of the gaming industry to raise internal awareness of these issues.

We encourage members of the gaming industry who are disappointed by the Copyright Office's decision to ask their leadership to advocate for greater support of the work of libraries and archives within their industry groups.

The Video Game History Foundation released a study last year showing that only 13% of classic video games released in the United States are currently being released. 87% are currently unavailable.

Rebekah Valentine is a senior reporter for IGN. You can find her post on BlueSky @duckvalentine.bsky.social. Do you have a story tip? Send it to [email protected].

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