by In just a few weeks, Nintendo 3DS and Wii U owners will finally lose the ability to purchase new digital games on these aging platforms. The move will disrupt consumer access to hundreds of titles that cannot otherwise be accessed legally.
But while this is a significant annoyance for consumers clinging to their old hardware, the current rules mean it could cause a much bigger crisis for the historians and archivists trying to preserve access to these game libraries for future generations.
“While it’s unfortunate that people can no longer buy digital 3DS or Wii U games, we understand the business reality that went into this decision,” said the Video Game History Foundation (VGHF). tweeted when the closure of the eShop was announced a year ago. “What we don’t understand is how Nintendo expects its fans to go about playing these games in the future.”
DMCA headache
Libraries and organizations like the VGHF say their efforts to preserve games are currently hampered by the Digital Millennium Copyright Act (DMCA), which generally prevents people from making copies of DRM-protected digital works.
The US Copyright Office has made exceptions to these rules to allow libraries and research organizations to make digital copies for archival purposes. These organizations can even distribute archived digital copies of articles such as e-books, DVDs and even generic computer software to researchers via online access systems.
But these remote access exceptions are explicitly omitted by video games. This means that researchers who wish to access archived game collections must travel to the physical location where that archive resides – even if the archived games themselves were never distributed on physical media.
Such a restriction on access simply “doesn’t make sense” for video games, as VGHF co-director Kelsey Lewin put it in an interview with Ars Technica. Even if an institution like The Strong Museum of Play were to obtain and maintain copies of all current 3DS and Wii U eShop games, “this is the only way we could ever play or study legally [those games] is when they fly to Rochester, sign a consent form and sit on the premises and play it,” Lewin points out.
VGHF Library Director Phil Salvador pointed out how impractical such an on-site entry requirement can be for game researchers. “Currently, if a researcher wants to study a 50-hour role-playing game in a library that hasn’t been published yet, they may need to book days or even weeks for travel, housing, research leave and childcare,” he told Ars. “It can be prohibitively expensive.” be to require researchers to access games on-site. It discourages the use of institutional game collections, and in turn, it discourages institutions from maintaining them that enable secure remote access to video game materials.”
Fear of an “online arcade”
Aside from blocking consumers from buying digital 3DS and Wii U games, according to VGHF, Nintendo is also helping to stop this kind of easy research access to archival copies. As a member of the Entertainment Software Association (ESA), Nintendo “actively funds lobbying that even prevents libraries from providing legal access to these games,” according to the VGHF called. “It’s understandable not to provide commercial access, but preventing institutional work to sustain these titles is actively destructive to video game history.”
In fact, the ESA was one of the main groups opposing a DMCA exemption for off-site access to library game archives in wide-ranging disputes before the US Copyright Office in 2021.
During these arguments, ESA attorney Steve Englund expressed the industry lobby group’s concerns that the proposed exemption would allow a library “to put emulated games online for a public audience” without significant access restrictions. Englund pointed to The Internet Archive’s emulated game collections as an example of the kind of “online arcade” that goes beyond “research purposes” and allows for “recreational play by users of public libraries”. That kind of wide-ranging access could cause “potential…market damage” to ESA’s copyright holders, Englund said.
Researchers at the hearing called these concerns overblown. Stanford University media curator Henry Lowood said that institutions like his weren’t interested in providing “unrestricted access for everyone” and “wouldn’t post anything on the open web for the researchers and students or other groups that we mentioned earlier.” .”
But even such access restrictions were not exactly reassuring for Englund and ESA. “College students are important consumers of video games,” argued Englund. “Just saying that someone is a student at a university who has been identified as enrolled at the university should have access to emulation is not a comforting message.”
A gaming double standard
Englund called for additional regulations to prove that those accessing games archives remotely are “actually real scholars, as opposed to people interested in playing games for recreational purposes”. That might require some sort of restriction restricting access to, for example, students who are “doing a project on a specific game”.
But Lewin noted an important double standard there, pointing out to Ars that “the law doesn’t yield to these kinds of apprehensions about other kinds of media. nor ‘free theaters’ killing the movie industry.”
The double standard is even more frustrating, Lewin said, because generic computer software archived by libraries is not are subject to the same remote access restrictions as video games. While the line between those two types of content was never made explicit in the 2021 hearings, Lewin said she likes to think the difference is “whether you’re having fun or not.”
According to Bo Ruberg, a professor at the University of California, Irvine, the current legal restrictions on remote access to games are extremely damaging to game studies programs. “You can go to a library, to an archive, ask for something obscure, get a copy of it, while for us who teach video games it’s really just day and night,” Ruberg told the US Copyright Office. “So we don’t have access to things to study. We don’t have access to things to teach, and video games really are as important as forms of culture, as forms of art, as something like literature. “
“Currently, if a researcher wants to study a 50-hour role-playing game in a library that hasn’t been published yet, they may need to book days or even weeks for travel, accommodation, research leave and childcare.”
VGHF Library Director Phil Salvador
Ruberg further argued that the games they study in these programs “are not primarily contemporary large games that our students play for recreation. These are artistic games; historical games; small, experimental games.”
But Englund countered that the proposed copyright exemption isn’t limited to obfuscating older games and that “one has to assume that the games we give access to are the most popular titles from three years ago that might be part of it.” a franchise that now has an actual edition on the market.”
The fight goes on
Unfortunately for conservationists, the Copyright Office sided with ESA and other industry groups during the 2021 rulemaking process. Researchers who want to legally access professionally archived game collections still have to travel to where those collections are physically held.
In a statement to Ars Technica, ESA argued that its position on the matter does not mean that the group is generally opposed to wildlife conservation. “ESA and its member companies have long advocated video game preservation and support the efforts of cultural institutions to build physical video game collections,” the group said.
But that preservation must be achieved “without jeopardizing the rights of video game companies under copyright law,” the ESA continued. The 2021 proposal, allowing off-site access to games, could “allow[ed] almost unlimited offsite (online) preservation activities that could undermine copyright protections and the market for legacy video games,” the group said.
Lewin told Ars that this kind of legalistic parsing about “acceptable” preservation efforts “does nothing to address our grievance that there is no sane, legal avenue for the preservation of digitally born video games.” This is especially true now that libraries and archives are becoming the only legal repositories for hundreds of delisted digital games, including those on the 3DS and Wii U.
“Limiting library access to physical games might have worked 20 years ago, but we no longer live in a world where all games are sold on physical media, and haven’t for a long time,” Lewin told Ars.
Nevertheless, Lewin harbors the hope that ESA members and the US Copyright Office could come to an agreement on this issue. She notes that the ESA originally argued against a proposed DMCA exemption to allow libraries to break online activation DRM for “abandoned” single-player games. But after the Copyright Office granted that exception in 2015, ESA dropped its objection to the now-existing exception during subsequent rulemaking processes.
This change suggests to Lewin that “ESA seems to agree with us that institutions can be trusted to use these exemptions responsibly. We encourage them to work with institutions on sensible expansions, rather than keep fighting them. Preserving video game history benefits all of us, including ESA’s customers.”
Archivists and industry groups will have another opportunity to argue about this issue next year when the Copyright Office conducts another review of its DMCA exceptions.
