# Register of Copyrights Aligns with Industry’s “Market Harm” Claim for Reissued Games
In a recent ruling, the U.S. Copyright Office has once again denied a plea from video game archivists aiming for a legal DMCA exemption that would permit them to distribute emulated versions of classic video games online for research purposes. This decision necessitates that researchers physically visit archives, like the Strong Museum of Play in Rochester, NY, to access rare and out-of-print games. The ruling has generated discontent among preservationists and academics, who maintain that the existing framework hinders research and the safeguarding of gaming history.
## The Request for a DMCA Exemption
Earlier this year, video game archivists, including groups like the Video Game History Foundation (VGHF), sought a DMCA exemption that would enable them to share emulated versions of their physical game collections with researchers from a distance. This would have allowed scholars to access rare and out-of-print games without needing to travel to designated physical sites, such as museums or university archives.
However, the U.S. Copyright Office dismissed this request, supporting the Entertainment Software Association (ESA) and other industry stakeholders who contended that granting remote access to these games could open up a legal loophole for an “online arcade.” The industry is concerned that this could negatively impact the market for classic game re-releases, which have increasingly become a significant revenue stream for publishers.
## The “Market Harm” Argument
In its ruling, the Register of Copyrights highlighted the possible market harm that could arise if remote access to emulated games were permitted. The entertainment sector has progressively re-released classic games for contemporary platforms, and the Register acknowledged the existence of a “healthy” market for these reissues. While some older games may not boast a viable reissue market, the Register contended that the danger of market harm outweighed the advantages of allowing remote access for researchers.
“While advocates are accurate that some older games will not have a reissue market, they admit there is a ‘healthy’ market for other reissued games and that the industry has been making ‘greater concerted efforts’ to reissue titles,” the Register stated. The ruling also pointed out that the preventive measures suggested by archivists to curb recreational use of the games were insufficiently detailed to ensure that market harm would be averted.
This position struck a chord with the Copyright Office, despite a VGHF study indicating that **87% of classic games are currently no longer in print**, rendering them unavailable to both the public and researchers.
## The Role of Emulation in Preservation
A central point of disagreement in this discussion is the function of emulation in preserving video games. Emulation allows legacy games to be played on modern devices, rendering it an essential tool for maintaining gaming history. However, the Register of Copyrights observed that emulation has been “historically linked to piracy,” which raises concerns about the possible abuse of emulated games if they were to be made accessible remotely.
This link to piracy has long been a source of irritation for preservationists. In fact, VGHF founder Frank Cifaldi delivered a talk at the 2016 Game Developers Conference (GDC) asserting that emulation should not be vilified, as it is vital for preserving games that would otherwise fade into obscurity. Ironically, the Copyright Office’s decision referenced Cifaldi’s talk as support for the piracy apprehensions surrounding emulation.
In response, Cifaldi humorously remarked on social media, “The moment I became the Joker is when someone in charge of copyright law watched my GDC talk about how it’s wrong to associate emulation with piracy and their takeaway was ’emulation is associated with piracy.'”
## The Impact on Researchers
The ruling has far-reaching consequences for researchers delving into video game history. At present, the sole method to access many classic games is to journey to specific archives, such as the Strong Museum of Play or the University of Michigan’s Computer and Video Game Archive. For scholars who reside far from these institutions, the financial and temporal costs of travel can be significant obstacles.
NYU professor Laine Nooney, a fervent supporter of the DMCA exemption, argued that video game researchers encounter distinct challenges compared to scholars in other disciplines. “Frankly, my colleagues in literary studies or film history have pretty routine and regular access to digitized versions of the things they study,” Nooney expressed to the Copyright Office earlier this year. “These [travel] obstacles [to accessing physical games] are real and significant and they do hinder research in ways that are not equitable compared to our colleagues in other areas.”
The VGHF echoed these concerns in a statement released after the decision, condemning the “lobbying efforts by rightsholder groups” that have “impeded progress” for researchers. The foundation claimed that the existing framework compels researchers to seek out “extra-legal methods” to obtain out-of-print games, effectively steering them toward piracy to fulfill their work.
## A Missed Opportunity for Preservation
