Game archiving efforts take massive hit with US DMCA copyright exemption denial

The Video Game History Foundation has been working with the Software Preservation Network in order to add an exception to the DMCA rules, which would allow libraries to bypass or break game copy protection for the purpose of making those games available to researchers. This week, the VGHF's request was officially denied by the US Copyright Office. 

The US Copyright Office made the denial known in its Final Rule after the triennial rulemaking proceedings report [PDF], with the decision ultimately coming down to fair use arguments, potentially exemplifying the power imbalance in the media copyright economy system as it stands. 

The exemption that the organisation has been fighting for was to be used exclusively for archiving and research purposes and would only apply to out-of print games.

The Copyright Office Regsiter's recommendations describe the proposed exemptions as: 

Proposed Classes 6(a) and 6(b) would amend the existing exemptions permitting libraries, archives, and museums to circumvent TPMs on computer programs and video games, respectively, for the purpose of preservation activities. The proposed amendment to Class 6(a) would remove the limitation that a preserved computer program must be accessible to only one user at a time (the “single-user limitation”). Petitioners sought clarification of the single-user limitation, arguing that it is currently open to two different interpretations. The existing exemption, they contended, could be read to allow multiple users to access circumvented copies at once, so long as the number of users does not exceed the number of copies the institution owns; or to mean that only one user at a time may access a copy of the circumvented work regardless of how many copies the institution owns. Proposed Class 6(b) would also remove the current exemption’s limitation that a video game must not be distributed or made available outside of the physical premises of the institution (the “premises limitation”).

Proponents argued that researchers could make noninfringing uses of the exemption even if the single-user limitation and the premises limitation were removed. This position was based in part on their view that proposed uses would be transformative, and would not affect the potential market for or value of the copyrighted works because only works that are no longer reasonably available in the commercial marketplace would be subject to the exemptio

Ultimately, the exemption was denied, with The Register's recommendations citing explanations by DVD CCA (DVD Copy Control Association), AACS LA (Advanced Access Content Systems Licensing Administrator), and Joint Creators I ( that allowing this type of exemption would cause market harm and lead to usage outside of the general fair use guidelines. In plain language, extending the exemption would allow more than one user to access the same copy of a game from one library and allow off-site, virtual access of the material.

In its statement about the decision, the Video Game History Foundation argues that this strict protection of out-of-print games will simply force researchers and historians to turn to "extra-legal methods" to access the content, likely alluding to piracy and illegally cracking copyright protections. 

Sites like Archive.org already have extensive software libraries, and this decision will likely have implications for similar archival projects. The decision also comes on the heels of a recent copyright crackdown spree from Nintendo, which ultimately led to the collapse or willing death of Yuzu and Ryujinx emulators. 

If you're interested in starting your own archive of your game library, check out a NAS, like the Ugreen NASync DXP4800 Plus 4-Bay NAS (curr. $594.99 on Amazon).