At the end of October, The Library of Congress made some new fair use exemptions regarding video game preservation. There is no doubt that video games have made cultural history, and the exemptions will make it easier for libraries and archivists to share said impact.
“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. She concluded that in such circumstances, the preservation activities described by proponents are likely to be fair uses. She further found that proponents demonstrated that such uses would be adversely affected by the statutory prohibition absent an exemption. The record indicated that an exemption would enable future scholarship by enabling researchers to experience games as they were originally played and thereby better understand their design or construction.”
The expansion to the rules allows for historians and archivists to bypass copyright protections (thus allowing for fair use) for games that require software for players to run locally, and software that is run on company servers. Single player games will be easier to handle. World of Warcraft is a good example of a more complicated situation, as it requires the player to download software to their computer to run, which then connects to a company server.
The rules only apply to “complete games”, which means that the library or archivist must have the original game code, and the original server code. Also, the new exemption says that the completed game can not be played outside of the physical premises of the library, archive, or museum.
“(i) Computer programs, except video games, that have been lawfully acquired and that are no longer reasonably available in the commercial marketplace, solely for the purpose of lawful preservation of a computer program, or of digital materials dependent upon a computer program as a condition of access, by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the program is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.
A big catch for the libraries and archivists is that they must acquire the server code legally, which can be difficult, as games expand and become bigger than they were at the time of original release, the game companies will not even have the original game code.
Overall, this is a big win for video game preservation.
Assaad Lyn: Attorney At Law | © 2022 