Video game preservation has long been a convoluted subject under copyright law, even after changes made to the Digital Millennium Copyright Act (DMCA) in 2015 to help promote accessibility to older video game and software titles. In a new 85-page ruling by the Library of Congress (LOC), the DMCA has been further modified to clarify or expand upon what constitutes fair use in terms relating to software and video games specifically, which has a huge impact for video game preservation.
According to the ruling, “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.”
This also extended the 2015 ruling by the LOC which stated that museums or archives, for fair use purposes, could legally crack the online authentication for single player games if it was a basic authentication which was just “ET phone home” and required connection with the servers.
There are, however, additional caveats for this preservation. The preservation work must be done by actual archivists or preservationists, ie. not average citizens who want to get an old World of Warcraft server up just for fun. Also, the server code must be obtained legally and has to be the original code. Any emulation or recreation of the server code does not fall under this exemption. Unfortunately, by this point, many original server codes have been lost to past systems, as many were discarded when the servers themselves were shut down.
Further complicating matters, this new DMCA rule only offers fair use exemptions for games that have both the server code and the game’s local code. While local code or a copy of the program is easy enough to obtain, as mentioned above it is much more difficult getting a copy of the original server code. Unfortunately, without both, it is not considered under DMCA’s fair use. Any libraries, archives or museums that get these games working will also only be allowed to operate them on the physical premises, further putting a kibosh on hopes to legally recreate EverQuest.
Overall, while this is considered a legal victory for video game preservationists, there are still more measures that could be, and hopefully will be, taken to see that more games and software are saved and not lost in a digital Library at Alexandria.