Hi everyone!
I would like to share with you an interesting article I came across on findlaw.com that discusses a recent decision by the U.S. Copyright Office following a petition for an exemption under Section 1201 of the Digital Millenium Copyright Act to make video game collections remotely accessible for scientific research.
The Digital Millennium Copyright Act (DMCA), passed in 1998, allows libraries to make digital copies of obsolete works for preservation, but only for in-person access. The Video Game History Foundation (VGHF) and the Software Preservation Network (SPN) worked together on a petition for an extension of the exemption in order to allow scientific researchers remote access to out-of-print video games in their collections. The two organizations argued that the present regulation hinders important research and preservation work. A DMCA exemption for remote sharing already exists for non-video-game computer software that is merely “functional”, according to the Register. But because of their special, often highly expressive, nature, the same fair use arguments do not apply to video games.
Now, the U.S. Copyright Office (USCO) has, once again, decided against the proposed relaxation of copy protection in the sense of an exemption for research, agreeing with the objections of the Entertainment Software Association (ESA), a trade association that represents the US video game industry. The ESA claimed that the rights holders would not be adequately protected under such an exemption to the DMCA. There would be no sufficient safeguards to ensure that these games could not be made available to others for entertainment purposes under the pretext of research, thus harming the market and the business interests of the rights holders. The ESA also reasoned that games that are no longer on the market or only run on old hardware are not automatically lost forever, but that the rights holders would protect the software themselves in order to bring it back onto the market in the future.
The USCO’s decision shows the challenge of balancing copyright protection with the need for cultural preservation. There is no doubt that digital works, including computer games, are an important part of the cultural heritage of our time and the desire to preserve and scientifically process them is understandable. In addition, there is the risk that researchers are inclined to use non-legal means to gain access to otherwise unavailable video games. On the other hand, effective copyright protection is clearly necessary to maintain viable businesses. However, it could be debated whether remote academic access to library collections would actually be detrimental to the market. For example, if suitable protection measures are in place, allowing remote access to researchers could also help to keep franchises alive and thus might even have a positive impact on the video game market.
What do you think about this decision?
Articles:
17 U.S. Code § 1201:
https://www.law.cornell.edu/uscode/text/17/1201
Section 1201 Rulemaking (October 2024):
https://www.copyright.gov/1201/2024/2024_Section_1201_Registers_Recommendation.pdf
Copyright & Social Media
Communications Law