A new ruling from the Librarian of Congress is good news for video game preservation. In an 85-page ruling that covered everything from electronic aircraft controls to farm equipment diagnostic software, the Librarian of Congress carved out fair use exemptions to the Digital Millennium Copyright Act (DMCA) for video games and software in general. These exemptions will make it easier for archivists to save historic video games and for museums to share that cultural history with the public.
“The Acting Register found that the record supported granting an expansion in the relatively discrete circumstances where a preservation institution legally possesses a copy of a video game’s server code and the game’s local code,” the Librarian of Congress said. “In such circumstances, the preservation activities described by proponents are likely to be fair uses.”
These rules are definitely good news for single-player games. "The big change for single-player games happened during the last DMCA review process in 2015, when the Copyright Office decided that museums and archives could break the online authentication for single-player titles that were just phoning home to a server for copy protection reasons," Phil Salvador—a Washington, DC-area librarian and archivist who runs The Obscuritory, a site that focuses on discussing and preserving obscure, old games—told Motherboard. That 2015 ruling was due to expire this year, but thanks to pressure from activists it was renewed today instead.
"These rules are a big win," Kendra Albert, a Clinical Instructional Fellow at the Cyberlaw Clinic at Harvard Law School, told Motherboard. Albert represented the Software Preservation Network, which was one of the parties arguing for the change at the Copyright Office. "The 2015 rules cracked the door open for many things, but the exemptions that were granted here are potentially much, much broader."
Today's news should be good for archivists and museums, who’ve long struggled with the best way to preserve video games such as Everquest or World of Warcraft. Multiplayer games like these require both software that players run on their computers locally, and software running on a company's server—software that is much harder for historians to get their hands on and run. And when they do manage to get an independent server running, big game companies like Blizzard have taken legal action against people running unauthorized servers.
The new rules will be disappointing for average users who had hoped to get abandoned multiplayer games up and running again, just for fun. Albert told Motherboard that the Museum of Art and Digital Entertainment pushed to make these exemptions cover "affiliate archivists," allowing private citizens to contribute toward software preservation. "The Copyright Office specifically rejected that request," they said. "I think one of the things that they are concerned about is that the number of people who do this work should stay relatively small."
There’s also a catch for the institutions that do this work: Archivists and preservationists have to acquire the server code legally, and that’s a tall order.
The rules offer exemptions only for "complete" games, meaning an archivist has to have both the original game code and the original server code to be able to use it. Any "eligible library, archives, or museum" that gets an online game working in this way won't be able to allow public access from "outside of the physical premises." This means that a museum that gets an old MMO working won't be able to host it for a worldwide audience of fans, it will only be playable in-person by researchers or visitors. This limitation partly defeats the purpose of preserving an old MMO, since part of what gives a game like World of Warcraft its character is that thousands of people play it simultaneously, which is not going to be possible if it can only be legally played in a museum.
Emulation or recreation of server code to get a multiplayer game up and running is also not a valid exemption to the DMCA, and that's a problem. "It's very unlikely that anyone saved the server code," John Hardie, Director of the National Videogame Museum in Frisco, Texas, told Motherboard. "In all the archiving we've done, we've never had a company say to us, 'here's our server code'... I'd say nine times out of ten, the server code has not been archived or saved. It just gets formatted, or whatever, or just discarded with the server."
Private servers do exist for games such as World of Warcraft and defunct MMOs such as City of Heroes. But those servers typically aren’t running on legally acquired software. Many of them painstakingly reverse engineer the server side software by catching packets and other data mining techniques. This kind of emulation isn’t covered under these new fair use exceptions.
Deciding that server code emulation is not a valid exception to the DMCA is specifically a blow against the Museum of Art and Digital Entertainment (MADE), which helped take this petition to the DMCA rulemaking board. MADE is currently working to recreate Habitat, a 1986 LucasArts online game and one of the earliest examples of an online virtual world. Habitat's original creators joined MADE to revive the game using the original source code and emulation of Commodore 64 and Quantum Link machines. That server-code emulation, according to our first look at these rules, would not be a valid exception to the DMCA.
"There are still a lot of legal issues around video game preservation, but these rules do clear away some of that thicket so it will make it easier for institutions to preserve videogames, and that's really important," Albert said. "It's also something that the Entertainment Software Association [the group that lobbies on behalf of video game companies in the United States] has traditionally opposed. So this win is a result of activists at the Software Preservation Network and MADE advocating for this. It's important to note that the [Entertainment Software Association] hasn't always been on the right side of this."
Of course, it's important to note that while the new exemptions are no doubt a victory considering the current state of copyright law, it's worth wondering why we're having such big fights over giving historians the right to preserve massively significant cultural artifacts, especially considering that game companies often don't do the hard work of preservation themselves.
DMCA section 1201 has become a bizarre zero-sum cottage industry. Lawyers are being paid—either by nonprofits or by for-profit corporations—to throw their time and energy into a black hole. The result is, that after a long and arduous fight, video game museums get to preserve video games (over the protestations of the Entertainment Software Association). This is not exactly a huge victory, and at the same time, we must ask ourselves, why was this a victory that needed to be won at all? Why wasn't this just clearly legal in the first place?"
Correction: This story previously said that the Software Preservation Network pushed to make exemptions cover "affiliate archivists." It was the Museum of Art and Digital Entertainment that pushed for these exemptions. Motherboard regrets the error.