ESA Denies Copyright Exceptions to Archivists (And Why It Matters)

“Pst. Spread the word.”, and a link. A simple enough message, and if it weren’t for two things, I would most likely have skimmed over it. The first was that it was a link to an EFF article, and digital rights are a subject close to my heart. The second was that the person messaging me, Rebecca Hernandez (Videogame archivist), knows her chosen subject, and knows threats to videogame archiving and historical study. The article is here, is short, and to the point: The ESA has denied videogame archiving (The practice of preserving original elements of gaming history, such as original cartridges, code, systems and supplementary materials) an exception to the Digital Millennium Copyright Act’s Section 1201.

What does that mean? It means that the ESA has effectively taken a position of “Archiving is no different to hacking a game to get around DRM.”

It’s no real surprise that the ESA has made this move, as one of its primary goals is very similar to those of the MPAA and RIAA (To protect the interests of its member corporations in terms of copyright protection.) However, there are several things that make this position short sighted.

The History of Videogaming Is Important (And Much Has Already Been Lost)

We have not always been interested in the archiving of gaming history beyond the hobbyist  collectors, and there have been many stories, over the years, of lost videogame history. Some pieces get unearthed from time to time, like prototypes of games never released, but many, many more get lost to time, improper archiving, accidents, and theft. For example, when asked about the possibility of a HD version of Homeworld Cataclysm, to go with the recent remake of Homeworld, it was mentioned (Or rather, repeated) that the source code for the game had been lost.

There are many potential factors to why this is (Copyright and assets shared among multiple studios, the closure of Relic, to name but two), but it is important to note that, if this is indeed true (And there has been no contrary evidence from any of the corporations who were involved in Cataclysm’s creation to date), then a lot of that work… Is just gone.

“But We Can Rebuild It!

Yes, this is true. Indeed, Homeworld HD is itself a recreation, one that tries to both recreate the feel of the original game, while updating the engine and some of the mechanics… But it is not, and never will be, the original game. Why is this important? Because methods change. Because programming languages used change. Because the original Homeworld was designed for earlier architecture (Part of the reason a HD remake is “good” is that, put plainly, it will actually run on modern systems without hassle, unlike the original, which doesn’t play well, or rather, consistently well with modern systems.)

Even if the audio and art assets were used as the base for a recreation, along with what is known of how the original Cataclysm works in terms of game rules and physics, it cannot be considered, and never will be considered, anything more than a recreation. It would be a piece of gaming history, it’s true, and perhaps worthy of archiving itself. But it’s not the original.

“But We Have Abandonware/ROMs!”

About that: Those are still against the law. It’s only considered a grey area because when companies do say something along the lines of “Excuse me, we’re planning to rerelease that/we’re still selling that/we don’t want you to offer that, even though we don’t sell it anymore, because it’s still ours” , most abandonware sites listen. In the eyes of the law, it’s still piracy. And, in the case of ISOs, IMGs, CUEs and ROMs (Among many other three letter acronyms for files used in emulation) that are meant to be games for other systems? Well, I’ve got another newsflash for you there…

…None of them are the original game anymore either. Sometimes, it’s due to the circumvention of anti piracy measures (And there have been a lot of different types over the decades), sometimes, it’s due to the fact that the games are compressed and repackaged (The majority of Atari ST Disk Images fall under this category and the next). Sometimes, it’s because either the game or the emulator had to be hacked to allow the damn thing to run. For a little more detail on that, this article by Byuu of Ars Technica goes into why emulation is… Well, actually, the clue’s in the name, but the devil is in the details.

Authentic Originals are important. This doesn’t mean that the ROMs and Emulators themselves aren’t worthy of archiving. But there will always be differences, sometimes small, sometimes big, in how a game plays, looks, and acts when it’s emulated, as compared to being played on an original system. A relatively modern example would be Unreal 1 Engine games, such as Klingon Honour Guard (Microprose) or the first Aliens Vs Predator FPS (Rebellion Developments). I can tell you from experience that they were fairly fast on systems of the time, but if you play them now? You’ll have difficulties with everything from frame rate limitation to random slowdown.

“Oh, They’ll Change Their Minds Once We’ve Lost Enough 80s and 90s Games”

A lot of those have been lost already. Guess what? Beyond fans who know a game exists, but can’t find a copy? Not many fucks being given. Individual members of a games company may love a game they have created, but in the corporate sense? Once a product has become obsolete, unless signs of demand for a remade version of that product appears? There’s no reason to care about it.

If that doesn’t convince you, let me just add that between 75% and 90% of films from 1894-1930 are lost. Gone. Kaput. There’s comparatively less films lost as time goes on, but that gives you some idea of how an evolving artform (Like games, which is less than 60 years old itself) can lose the majority of its roots pretty quickly. You may have heard of Theda Bara, but I can guarantee you won’t have seen around 36 and a half of her films. Because they, also, were lost. And one of the major contributors? Lack of proper preservation methods.

“Okay, You’ve Convinced Me This Might Be An Issue. But Why Is It Bad?”

Games, like any other media, build on both our culture and what has come before, for good or for ill. Sometimes we build up, sometimes we build sideways, and sometimes, we ignore the lessons other games, and for that matter, their creators and owners, have taught us. Every time we lose all originals (or authentic copies) of a game, or its materials, we aren’t just losing a product: We’re losing sources we can analyse when studying game design, and the history thereof. We’re losing historical evidence that yes, attitudes to games were different, and so were the creators’ attitudes toward their players. We’re losing memories, and lessons, and information. And telling museums and preservation projects, such as the Internet Archive or the Videogame History Museum, that they can be charged for copyright infringement opens the door for all sorts of skullduggery.

DMCA takedowns have already been wielded to silence critics and unpopular reviews, so it’s important to ensure that archivists and educators in the game industry wishing to preserve, teach, or study gaming history, culture, and materials have the ability to do so without undue interference. Authenticity and consistency aren’t the only thing important in archiving and game studies… Security is important as well.

“What Can I Do About It, Then?”

As far as the DMCA clause 1201, there’s a comment form here . Many of these clauses are important, but as far as videogame archiving goes,  subclasses 23 (Abandoned Software) and 4 (Audiovisual media for Museum/Historical/Nonprofit Use) are the most important, but subclass 1 (University/College Educational Use) would also be of use. There are other subclasses, and, if you care about how copyright is enforced, it may well be a good idea to weigh in on them.

For further reading and potential avenues of supporting videogame archiving and studies, there are several organisations and individuals you can talk to. We’ve already mentioned the Internet Archives and the Videogame History Museum, but there’s also the National Videogame Archive (UK) , Stanford’s How They Got Game Research Project (Dealing with the history of videogaming culture), DiGRA (Digital Games Research Association, on the academic studies end) , and, of course, the individual without whom this article would not exist, Rebecca Hernandez, aka 8BitArchivist , who has tirelessly campaigned for the improvement of videogame archival practices.