Video game preservationists have lost a legal fight to study games remotely

When video game scholars want to study games that are no longer on sale, they sometimes have to drive many hours to do it legally - and that won't be changing anytime soon. The US Copyright Office has just denied a request from video game preservationists to let libraries, archives and museums temporarily lend individuals some virtual, remotely accessible copies of those works.

Kendra Albert, who made the argument on behalf of the Software Preservation Network and the Library Copyright Alliance, says preservationists weren't asking for a lot: "It was the thing that basically exists for all kinds of special collections in libraries: the library reviews the request, makes sure it's not harmful, and allows access to the work."

While the Copyright Office already lets institutions lend out other forms of media and even software programs remotely - so long as they don't lend out more copies than they own - video games are still treated differently as of today.

"It's frustrating that the process that's widely used to access all sorts of different materials is not good enough for video games," Albert tells The Verge.

Opponents, most prominently the Entertainment Software Association (ESA) which represents video game publishers, argued that people would take advantage of libraries to play games for free, that they would damage the market for classic video games, and that preservationists didn't have "appropriately tailored restrictions to ensure that uses would be limited to teaching, research, or scholarship uses."

While the preservationists extensively argued that the vast, vast majority of games are never re-released in any form, and that those that do are typically changed or remastered in ways that make them less valuable for study, the Library of Congress wasn't convinced, concluding:

The Register concludes that proponents did not show that [...] permitting off-premises access to video games are likely to be noninfringing. She also notes the greater risk of market harm with removing the video game exemption's premises limitation, given the market for legacy video games.