Inside the fight to save video game history

In February, Nintendo said it would close its storefronts. Fans were angry, disappointed, and even scared as they learned of the loss of access to digitally exclusive 3DS and Wii U titles. The digital storefronts from the previous generations are slowly disappearing as console gaming enters its ninth generation. It is getting harder for people to play older games and harder for the games of the present to be preserved because of the decline of physical media.

If you want a legal way to play them. As games age and companies remove the means to purchase and download them, people are looking at less legitimate options to play the games they enjoy. Tension was created between players and companies. It's unrealistic to expect publishers to maintain their libraries in perpetuity, and it's also not ideal that large swathes of games can disappear on the store operator's discretion.

How can we make sure that older games can be enjoyed by future generations without violating existing copyright laws? Video game preservationists are working at the intersection.

The Video Game History Foundation is a non-profit organization dedicated to the preservation of gaming.

Video games are part of our culture and people should be able to have the tools and resources to study them, according to Lewin.

The Video Game History Foundation and the Museum of Art and Digital Entertainment work to preserve games in a number of ways. They maintain physical copies of older games. They save software for preservation on hard drives by copying it. They alter a game's source code to make it possible for games with online requirements to still be played.

The medium of games is interactive. The games that have been saved from the digital garbage heap need to be made available for people to play. Video game preservationists and video game publishers don't agree on this point, because if nobody can play it, there's no point in saving it.

There is a fight over access. Video game enthusiasts want to share their old games. Video game companies want to protect their interests by limiting the scope of their games. The two sides are fighting over who can provide access, how it is done, and whether it is necessary in the first place.

Fair use rules allow people to study archives and museums. Under certain circumstances, unlicensed use of copyrighted material is allowed. Video game archives and preservationists have to contend with a portion of the Digital Millennium Copyright Act, known as Section 1201.

Section 1201 makes it illegal to circumvent technological measures used to prevent unauthorized access to copyrighted works.

A video game is trapped inside a building and on the door is a lock. Video game preservationists want to save the video game before it goes up in flames, but they have to break the lock to get to it. Section 1201 states that if the game is broken, they are breaking the law.

The Harvard Law School Cyber Law Clinic has a clinical instructor.

Section 1201 says that even when the uses that someone is making of a work are fair.

Some of the acts of preserving a game, like emulating a piece of software on PC because its hardware is obsolete, can expose an organization to legal risk.

Albert said it was hard to get archival and preservation institutions to preserve software.

Albert said that most museums and libraries don't really get involved with video games because they are risk-averse.

If someone comes to them with a novel software preservation idea, they don't want to touch it.

Section 1201 allows for the preservation of video games not currently being sold but restricts their access to the institution's physical location. Section 1201 requires that the Video Game History Foundation's archives be physically present at their locations. Off-site access is not allowed despite the fact that these games can be lent and distributed digitally. This makes video game archives useless and creates a serious burden for video game scholars.

An assistant professor of media industries at NYU, Laine Nooney, elaborated.

For people who are trying to do software history that is based on release histories, trying to produce histories of developments in game design, or even trying to understand a company's entire game catalog.

Video game history is at risk because the pool of available resources is small, there is a legal disincentive to create additional resources, and the history that has been saved is so restricted that it cannot be shared.

It's not completely worthless. The exemption to the 1201 rule would allow organizations to share software for academic purposes.

Albert represents the organization that petitioned for an exemption for all kinds of software preservation. They got it for programs.

They didn't get games because of the Electronic Software Association.

The video game publishers use the ESA as a trade organization. The interests of Sony, Microsoft, Nintendo, and other game publishers are represented. The Software Preservation Network's petition for a 1201 exemption for video games was opposed by the ESA. The ability to provide online access to their collections would undermine their ability to make money.

The work preservationists are doing is already being done by publishers.

“Video game companies have strong economic motivations to preserve their video game assets themselves. [...][T]hey do not routinely discard works that in many cases they paid millions of dollars to create. And like other copyright owners of valuable entertainment content, video game companies increasingly reissue works from or based on their back catalogs. [...] In fact, publisher-authorized emulators of legacy games are an important existing and potential market for video game copyright owners. For example, Nintendo offers legacy games for purchase through its Virtual Console Games portal.”

The scope of video game preservation activities is not close to what is needed.

They said that rereleases in the form of remasters and other products are not substitute for having access to the original game. Fans panned the game for being laggier and less visually faithful to the original.

Nintendo's Virtual console is an example of publishers preserving their own games. Nintendo discontinued that service in the transition from the Wii U to the Switch, and 3DS and Wii U users won't be able to purchase older games when those storefronts shut down.

The way things are, consumers are at the mercy of publishers who get to pick and choose which games they want to resurrect, which sucks if you've been hoping for a rerelease of Elite Beat Agents.

Video game preservationists and publishers are at odds. What should be done and who? Nintendo deleted a section on what obligations they had to support older games in the FAQ about shop closings.

Nintendo

I don't know if it's the role of a company to keep the stuff. He believes that a company has an obligation to find a way forward for both publishers and preservationists.

The Video Game History Foundation responded to Nintendo's decision to shut down its shop.

Not providing commercial access is understandable, but preventing institutional work to preserve these titles is destructive to video game history. We encourage Nintendo to rethink their position and work with existing institutions to find a solution.

Albert understands the business decision involved in taking down a digital storefront, but they don't like the idea of having a mentality like that.

Publishers and preservation institutions view games in different ways. Maintaining games as something commercial allows publishers to claim that their preservation work is sufficient and others to claim that it is not. The industry's ability to make a profit is at risk because every preservationist is a potential pirate waiting to turn libraries of old games into online arcades.

The video game industry more generally has characterized people who just want to play old games as potentially evil infringers.

The strategy made it clear that the discussion about access to games centers was only for academic purposes. Even though there are no legal restrictions on other forms of art, organizations are only fighting for their scholarly use because that's their best bet for obtaining the legal permission to preserve them. You don't need a reason to read an out-of-print book. There is still a long way to go before recreational use could even be considered, and as console generations advance, more games are being lost.

Video game preservation is just in the middle of the process.

Video games have undergone several technological revolutions despite being a relatively young form of media. It is difficult to play games made even 10 years ago, let alone those made at the dawn of the medium, because they are written in a language that is difficult to understand. Without the work of video game preservationists, each new console generation would mean the loss of a previous one. Video game history is being eroded by the industry's actions in taking down aging storefronts and its efforts to control and curtail how old video games can be accessed.