Apr 10, 2015 · 2 minutes

Should people be allowed to preserve video games long after publishers abandon them, the consoles on which they played are obsolete, and no one would even be able to purchase the game itself from a legitimate retailer?

The Electronic Frontier Foundation believes the answer is "Yes," and it has asked for an exemption to the Digital Millennium Copyright Act that would allow game archivists to preserve cultural milestones and "abandonware."

The Entertainment Software Association, a Washington, DC-based group of which most of the gaming industry's largest companies are members, disagrees. It has asked the Copyright Office not to grant the EFF's requested exemption.

As the ESA explains in its filing with the Copyright Office:

The proposed exemption would jeopardize the availability of these copyrighted works by enabling—and indeed encouraging—the play of pirated games and the unlawful reproduction and distribution of infringing content. [...]

The proposed class inappropriately and inaccurately suggests that the copyrighted works of ESA’s members are 'abandoned.' The proposed class also affects an overly broad range of devices and platforms. And it mischaracterizes the purpose and scope of the access controls at issue in this proceeding. Here's how the EFF rebuts those points in its own blog post:

Games abandoned by their producers are one area where Section 1201 is seriously interfering with important, lawful activities—like continuing to play the games you already own. It’s also a serious problem for archives like the Internet Archive, museums like Oakland, California’s Museum of Art and Digital Entertainment, and researchers who study video games as a cultural and historical medium. Thanks to server shutdowns, and legal uncertainty created by Section 1201, their objects of study and preservation may be reduced to the digital equivalent of crumbling papyrus in as little as a year. That’s why an exemption from the Copyright Office is needed.
One side doesn't want a bunch of people "hacking" games and game consoles because that could hurt the gaming industry's bottom lines. (Not that most of the games talked about really contribute much, since many aren't for sale.)

The other side realizes that games are part of our cultural fabric, and that the only way to make sure they're around for as long as important books, films, and other media is to experiment with methods that fall into a legal grey area.

Meanwhile, the game archivists who are caught in the middle are forced to watch as an industry group tries to make sure they can't do their work, thereby threatening game history.

That can be a little stressful. As Polygon reports:

One game archivist, who wished to remain anonymous because they work in the industry, said of the ESA opposition to the exemption: 'This is the most terrifying thing I've read in a very, very, VERY long time. And this is after years dealing with preserving games.

'We aren't preserving these things correctly,' the anonymous source said. 'And without the museums to rely on, this is the biggest threat to our history that has emerged since the DMCA.' Whether the situation changes so games can be preserved or archivists will continue to risk the industry's ire depends on the Copyright Office's decision.

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