US Copyright Office rejects petition for remote access to out-of-print games

In an announcement dated October 25, 2024, US Copyright Office rejected a petition filed by the Software Preservation Network that would have allowed non-commercial remote access to out-of-print video games. The ruling is part of the three-year review of proposed exemptions from the Digital Millennium Copyright Act, which defines the limits for circumvention of technology that prevents unauthorized access to copyrighted works.

The Software Preservation Network is a member-supported organization engaged in educational and legal efforts to build and maintain cultural, academic, governmental, and public access to software. His three-year effort to push for the exemption was supported by the Video Game History Foundation, a non-profit organization that works to preserve and pass on the legacy of video games. While retro gaming is still popular, the legal means of accessing many titles from previous generations of consoles and arcades is extremely limited, which both organizations claim prevents comprehensive game research.

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The rejection of the Digital Millennium Copyright Act petition keeps games offline, commercially unavailable, in the hands of eligible libraries, archives, and museums, except for ownership of the game in its original physical or digital format, along with any necessary physical hardware. The main example given in the petition is Duck huntingthe 1984 light gun classic originally released for the Nintendo Entertainment System. With a 2014 Wii U Duck hunting the re-release is no longer supported by Nintendo, the only way to access the game is to already own the defunct re-release; purchase vintage gear, console, cartridge and light weapon; or travel to an institution that already has one or the other. As an essential piece of video game history, the petition argues, scholars and archivists should have a more reasonable level of access to Duck hunting and games like this.

Inaccessibility of game history

Research by the Video Game History Foundation in pursuit of the petition found that 87 percent of classic video games are inaccessible except through their original formats or through piracy. The foundation argues that this isolation of games endangers the legacy of the environment and prevents the comprehensive study and dissemination of video games, one of the most important cultural signifiers of the last century. As vintage consoles become harder and harder to find and older technology succumbs to age, accessing titles from the history of video games is more difficult than ever.

Both the Video Game History Foundation and the Software Preservation Network say they will continue to advocate for exemption, but it will be at least three more years before a reversal of the precedent can be achieved. With modern game markets overflowing with content, and developers removing access to old games, it seems more important than ever to create a solid and equitable infrastructure for access to the art and culture that encompasses video game history.