ESA Once Again Comes Out Against Video Game Preservation Efforts

I talk quite a bit about video game preservation efforts for a couple of reasons. First, I’m just a huge gaming nerd and it is almost physically painful to think that the cultural output of this artform can be lost to history at the whim of publishers that have the ability to shutdown backend servers or otherwise disappear these games from the universe. Second, those that oppose preservation efforts do so without a coda to their opposition. In other words, they tend to simply say “no!” without offering any alternative methods for preserving this shared cultural history. And, finally, it simply a fact that the loss of this culture almost perfectly negates the bargain that is copyright to begin with. The point of the law is to offer a limited monopoly on artistic content as a financial incentive, but that such content will eventually end up in the public domain. If the content disappears entirely, it never goes into the public domain.

On the middle point, the Electronic Software Association, a lobbying group for game and software makers, continues to serve as an example of an obstinant force offering no alternatives. The ESA recently went in front of the Copyright Office for a hearing and reiterated its stance that no carveouts be given to museums and non-profits for the purposes of preserving video game content.

ESA lawyer Steve Englund told the panel that the ESA is still firmly opposed to allowing libraries to preserve older video games. Video game preservationists have lobbied for exceptions to copyright law that would allow for scholarly or educational access to video games. The ESA’s ongoing concern is that civilians would access these games, whether for their own private collections, or to share them with others in violation of the Digital Millennium Copyright Act.

Englund said there exists no “combination of limitations [the ESA] would support to provide remote access.” (via GameDeveloper.com.) His remarks came at a hearing on Thursday. Video game preservation advocate Phil Salvador posted a Twitch stream of the hearing to Bluesky the same day.

Salvador is part of the Video Game History Foundation, a group we’ve talked about in the past and which has preserving video games as its core mission. While the ESA claims that it should be libraries at universities doing any of this preservation work anyway, Salvador told the Copyright Office that it’s simply not being done. And, even if it were, Englund said that the ESA would still have a concern over copyright issues.

What is absent from any of this is literally any alternative for how antiquated games should be preserved instead of simply winking out of existence. As of now, this is purely a binary choice thanks to such opposition: either publishers will preserve the games on their own, or they won’t be preserved at all. And, as we have talked about in previous posts, far too often the latter ends up being the case.

In July 2023, Salvador and the VGHF published a study that said 87 percent of video games released in the United States before 2010 haven’t been preserved in any meaningful way.

“Since 2015, libraries, museums, and archives in the United States have been petitioning the Copyright Office for new exemptions that would make it easier for them to preserve games and make those games available to researchers,” the study said. “Each time, game industry lobbyists have opposed these new exemptions.”

This is completely nonsensical. If the ESA’s stance is that all of this cultural output should be without preservation in the long term, let them come out and say it. It would be one hell of a stance to take. But stated plainly or not, that is the reality of what the ESA is advocating for.