Washington Post: “Academics Want to Preserve Video Games. The Game Industry Is Fighting Them in Court.”

For decades, champions of the video game industry have touted gaming’s cultural impact as the equal of literature, film and music. Traditionally, the classic works from those mediums have been preserved for study by future generations, and amid gaming’s global rise in relevance, a group of video game scholars and advocates is pushing to preserve the game industry’s historic titles and legacy in a similar fashion. In the process, though, the would-be preservationists have found a number of challenges that include, ironically, legal opposition from video game companies and the Entertainment Software Association (ESA), a trade organization that lobbies on behalf of game publishers.

A 2018 report by the Association of Research Libraries found that archivists are “frustrated and deeply concerned” regarding copyright policies related to software, and they charge the current legal environment of “imperiling the future of digital memory.” The obstacles archivists face range from legal restrictions around intellectual property to the technological challenges of obtaining or re-creating versions of the various consoles, computers and servers required to play various titles published over the years. Not only must the games be preserved, they also need to be playable, a quandary akin to needing a record player to listen to a rare vinyl album.

However, the legal hurdle — chiefly, bringing court cases against multibillion-dollar companies and their trade organization — remains the biggest for preservationists seeking access to games for academic research.

“Game history is part of general culture as well as intellectual and media history,” said Henry Lowood, curator for film and media collections as well as science and technology collections in the Stanford University Libraries. Lowood is one of the academics pushing for increased access to games for the purposes of study. “It’s not possible to include a full history of any of those topics without including games from the 1970s forward.”

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Game makers have argued that enabling the access sought by the academics would economically harm their companies. The ESA has argued that even old games still hold value since they can be rereleased or remastered, noting as an example that thousands of older games are currently available on Microsoft’s Xbox marketplace for digital download. The ESA’s legal opponents have argued that such a stance allows the game industry to gatekeep which titles are made available or preserved, effectively limiting the study of gaming’s history.

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In U.S. copyright law, exemptions exist for specific use cases, such as academic research, that would otherwise appear to violate the technical protections granted by law. Proposals for exemptions are reviewed every three years by the U.S. Copyright Office. In 2018, academics scored a legal victory that granted them an exemption to preserve games that are no longer commercially available. In 2021, a push for remote access to preserved games for academics failed.