You absolutely can check out video games just like library books -- physically.
What the article says is libraries can't make digital copies of the games and lend them remotely over the internet.
Nothing is preventing traditional physical lending.
I personally think it's time Congress got around to putting all works that haven't been commercially available for e.g. 5 years into the public domain. That's the easiest way to fix this. But that's the job of Congress, not the US Copyright Office.
I’m in the middle of writing to the EFF to see if they would clarify if this pertains to non-profit educational organizations employees/volunteers. E.g. if an organization of researchers are providing educational information about games, can they privately access the same physical copy remotely sitting in a drive somewhere. The rules from 2018 don’t appear to support this, unfortunately.
A lot of research is currently restricted by the inflated cost of long out of print games. Dozens or hundreds of people might want to contribute, but if a non-EULA encumbered, physical copy costs hundreds of dollars it becomes harder to find people who both have copies and the skills or desire to do work as well.
best I Can do is 90 years after the death of the author.
5 is much too short, though. and "commercially available" is very exploitable. I think a flat 20-30 years would work out fine. 20 is generaally when we call a title "retro" anyway, right?
> 5 is much too short, though. and "commercially available" is very exploitable.
It's not too short for things that have stopped being sold. If a book or video game has no more commercial value in selling, why not end its copyright?
I'm not saying 5 years after something is published. I'm saying 5 years after it stops being sold by the publisher.
If a publisher wants to "exploit" that by keeping everything in print, then great. We still keep the existing copyright limits. But I guarantee you most of the stuff no longer being sold, they don't care about because it's not profitable anymore. If it was profitable, they'd still be selling it.
It should be "20 years or whenever it's not commercially available, whichever comes first"
Otherwise, we'll still see companies make stuff and kill it and sit on it for decades. (Often binning fully-finished releases without ever letting it be sold ever -- see Discovery and Disney's recent releases)
Preservation should start the minute access is threatened, not some decades later when it's likely too late.
Well ideally it would be twenty five years from date of publication with extensions of five years upon re-release, up to three times. Meaning you could, at most, get forty years, but only if you re-released the media in question before the original copyright term or the extensions ends. This means that only the most enduring media will likely get forty full years of protection. Meaning that, had a film come out in 1984 and not been re-released in any form since it's original theatrical run from 1984 to 1985, it's copyright protection would have ended in 2009. But if it got a VHS release in 1988, a DVD release in 2002, and a Blu-Ray release in 2009, it's copyright wouldn't have expired until just this year. To make this work, making sure sub-licensing and syndication do not count as releases (the show appearing on a television channel or a third party streaming service for example) would close some of the loopholes. This would also mean that for the full forty years of protection there has to have been physical media created, providing a protection that the data can't be arbitrarily revoked.
The retro wave hits everyone around 30 years, and again around 50. It would be interesting to have a non-continuous copyright claim. The first 15 years it's yours, then 15-30 it's public, 30-60 it's yours again, and finally 60+ it's public domain forever.
I don't see where they outline the difference between games and books. This makes no sense at all. I can see where they would draw a line with proprietary IPs like old Nintendo games, but there's probably hundreds of thousands of games that have no owner.
I'm tired of video games being treated as something that they're not. They're not services and they're not just for entertainment. It's an art form and they become part of the broader culture, not to mention their full potential as an interactive medium has only barely started to be explored.
Suspecting nobody will sue you is not good enough for a distributor, I assume. It also means nobody is there to give you permission to something that is clearly not yours, which sounds risky. And still, someone with the rights might show up at any point.
And as others mentioned, I’m not even sure if the market is big enough.
I guess no one would stop someone from distributing, but presumably there isn't a huge market for these games and therefore no incentive. I was thinking it had more to do with preventing competition or something like that.
Most abandonware isn't really that cut and dry. During the NES/DOS days you might have seen companies fold and their IP become owned by no one. But even then, in many cases, the IP ended up being sold, and over the years ping-pongs around new owners.
Many times those new owners aren't really concerned with some 30 year old game from an IP they may not even remember having being distributed, but the fact they still could at a moment's notice is a possible threat.
But yeah, if there truly is no existing owner, it's basically free game (literally).
If you haven't played Rez/Rez Infinite yet, you owe it to yourself to. The game is 22 years old and it's still leagues ahead of most games in terms of what a game can do, what it can express. Rez is... difficult to describe but a start might be, it's Polybius (legendary arcade game) if it were developed by raver hippies. Its purpose seems to be inducing an altered mental state of "flow" and the joy that comes therewith.
Rez has the property of being so good that other developers (expectedly) made games that try to do what Rez did, missed the mark completely, and still ended up with really cool games. Thumper, Aaero, and Sayonara Wild Hearts come to mind, as does Jeff Minter's take on Polybius.
The article is missing a lot of context. The Video Game History Foundation (VGHF) has gone into this in great detail on their podcast, and slightly less detail on their blog. In summary:
Every three years, the US Copyright Office considers petitions for exemptions to the DMCA. The big famous example that everyone talks about is in 2015, teachers won the right to bypass DVD copy protection to preserve teaching materials. This exemption had been rejected at least twice previously, but they finally won approval in 2015.
Every three years though, it's a fight. Previous exemptions can also be withdrawn during these proceedings if the Copyright Office or the Librarian of Congress believes that the exemptions are not working as planned and are harming the market.
For a long time now, folks like the Internet Archive have been petitioning to legally allow digital lending of all kinds of content, including video games. This is far from the first time this exemption has been considered. However, these proceedings include testimony and discussion, and the Entertainment Software Association (ESA) always sends lobbyists to oppose the exemptions.
In the past, one of their main arguments that worked was that those who wanted to allow digital lending were customers and enthusiasts who wanted to open their own digital arcades. There was no serious scholarship behind it.
They also were able to imply that video games weren't culturally important like books or movies because they were purely entertainment, and therefore not worth studying or preserving. And this argument worked because indeed, the Registrar of Copyrights saw video games as lesser cultural artifacts.
That's one of the reasons why organizations like the VGHF became so important to the fight. By proving that there is an academic community and non-profits engaged in treating video games as seriously as they deserve. Because of that the ESA shifted its argument completely to the economic harms to the retro game market.
To counteract that argument, the VGHF performed a study last year showed that 87% of video games are no longer commercially available, so there's there's no market to ruin if those 87% were allowed to lend. They even proposed a lot of safeguards to limit the number of copies lent and DRM schemes to prevent borrowers from dumping the ROMs (which are out there anyway).
The ESA countered that those games would still be competing with retro games that are still being sold on the market, and that the protections weren't good enough. DRM can be cracked, and they don't trust the people who want to lend the games to not introduce side-channels to get around the restrictions. In their argument, only the rights holders can properly protect their games, and only with help from the DMCA.
It's worth noting that the Registrar of Copyright is famously even more strict than rights holders at these arguments sometimes. In 2012, they denied the request for teachers to break DVD encryption, even though lobbyists for the motion picture industry said they would accept it.
And so that's what this news is about. Despite the lobbying and the studies, they sided with the ECA, seemingly taking their arguments all at face value.
I should also note that publishers do often go after libraries for lending books. It's often said in these circles that if lending books through a library weren't already common when the DMCA was enacted, we'd have to fight just as hard every 3 years to get exemptions for what libraries have always done, and we still probably wouldn't get everything.
I give IA money every month, and I encourage everyone to do the same.
I understand that the current state of copyright put them on thin- to no-ice. But that shouldn't be the case, IMHO. It's a net gain for the universe to let them loan these out-of-print materials. Publishers are working hard to make sure it's very expensive or impossible to do Internet lending. And Internet lending is exactly what the future of libraries should be unless we want to be stuck in a perpetually diminishing 1990.
IA is fighting the good fight against some seriously long odds.
When you have revolving door regulators, almost impossible to expect regulation that benefits individual freedom over special interests. Copyright is supposed to protect creators while they market and deploy their IP from others selling unauthorized copies.
But.. can any legal experts here explain otherwise, that this is a smart ruling?
On the plus side, the games most in need of archiving take up a relatively small amount of space. Old CP/M and Commodore-64 games are so small you can easily store all of them on a cheap disk.
The more people who have complete archives (even if they're not being distributed freely) the more likely these games will survive.
As long as there is creative expression involved in the translation, that may be accurate.
That’s effectively what the decomp community is doing. Instead of PDF and interpreter it’s git and compilers. (Though music and visual artwork must be excluded for different copyright reasons).
Can you though? Harry Potter is information too. You can't legally print your own copy of Harry Potter and lend it out at a library. Libraries could save a lot of money if they could do that.
During covid I wanted to enable the local arcade in Amsterdam (Blast Galaxy) to stream their old boards to subscribing internet users for internet play, however I consulted with one of the leading IP lawyers in the city & was told basically "nope".
My pitch to the lawyer was that it was simply a case of "longer wires" in terms of board input and output, however there is something in EU law that addresses encoding and transport over networks which causes the issue in terms of IP.
I am not sure I fully grasp what’s at stake here. Does it mean that:
* Only 1 person at a time can borrow play a retro game physically (in a dedicated library) even if there are more than 1 copies available
* Libraries cannot offer remote access to their retro games (I wonder, can libraries offer that for books? In know my university library had a digital library but that’s it) even if safeguarded
I don’t really understand the actual consequences of this new ruling, the article doesn’t really explain that in my opinion.
The big deal is that it can’t be over the Internet, even if restrictions are in place to ensure only one user can access one copy at a time.
Zediva and Aereo had the same issue, albeit in a commercial application. I was hoping libraries would be given a little more freedom since their purpose is educating the public.
Readit News
You absolutely can check out video games just like library books -- physically.
What the article says is libraries can't make digital copies of the games and lend them remotely over the internet.
Nothing is preventing traditional physical lending.
I personally think it's time Congress got around to putting all works that haven't been commercially available for e.g. 5 years into the public domain. That's the easiest way to fix this. But that's the job of Congress, not the US Copyright Office.
http://laboratorium.net/archive/2011/03/16/that_zediva_thing...
I’m in the middle of writing to the EFF to see if they would clarify if this pertains to non-profit educational organizations employees/volunteers. E.g. if an organization of researchers are providing educational information about games, can they privately access the same physical copy remotely sitting in a drive somewhere. The rules from 2018 don’t appear to support this, unfortunately.
A lot of research is currently restricted by the inflated cost of long out of print games. Dozens or hundreds of people might want to contribute, but if a non-EULA encumbered, physical copy costs hundreds of dollars it becomes harder to find people who both have copies and the skills or desire to do work as well.
5 is much too short, though. and "commercially available" is very exploitable. I think a flat 20-30 years would work out fine. 20 is generaally when we call a title "retro" anyway, right?
It's not too short for things that have stopped being sold. If a book or video game has no more commercial value in selling, why not end its copyright?
I'm not saying 5 years after something is published. I'm saying 5 years after it stops being sold by the publisher.
If a publisher wants to "exploit" that by keeping everything in print, then great. We still keep the existing copyright limits. But I guarantee you most of the stuff no longer being sold, they don't care about because it's not profitable anymore. If it was profitable, they'd still be selling it.
Otherwise, we'll still see companies make stuff and kill it and sit on it for decades. (Often binning fully-finished releases without ever letting it be sold ever -- see Discovery and Disney's recent releases)
Preservation should start the minute access is threatened, not some decades later when it's likely too late.
I'm tired of video games being treated as something that they're not. They're not services and they're not just for entertainment. It's an art form and they become part of the broader culture, not to mention their full potential as an interactive medium has only barely started to be explored.
And as others mentioned, I’m not even sure if the market is big enough.
Many times those new owners aren't really concerned with some 30 year old game from an IP they may not even remember having being distributed, but the fact they still could at a moment's notice is a possible threat.
But yeah, if there truly is no existing owner, it's basically free game (literally).
The difference is in who's money and how much is behind the law at the relevant points in time.
Any examples come to mind? I’d love to try (or at least read about) some games like this!
Rez has the property of being so good that other developers (expectedly) made games that try to do what Rez did, missed the mark completely, and still ended up with really cool games. Thumper, Aaero, and Sayonara Wild Hearts come to mind, as does Jeff Minter's take on Polybius.
Every three years, the US Copyright Office considers petitions for exemptions to the DMCA. The big famous example that everyone talks about is in 2015, teachers won the right to bypass DVD copy protection to preserve teaching materials. This exemption had been rejected at least twice previously, but they finally won approval in 2015.
Every three years though, it's a fight. Previous exemptions can also be withdrawn during these proceedings if the Copyright Office or the Librarian of Congress believes that the exemptions are not working as planned and are harming the market.
For a long time now, folks like the Internet Archive have been petitioning to legally allow digital lending of all kinds of content, including video games. This is far from the first time this exemption has been considered. However, these proceedings include testimony and discussion, and the Entertainment Software Association (ESA) always sends lobbyists to oppose the exemptions.
In the past, one of their main arguments that worked was that those who wanted to allow digital lending were customers and enthusiasts who wanted to open their own digital arcades. There was no serious scholarship behind it.
They also were able to imply that video games weren't culturally important like books or movies because they were purely entertainment, and therefore not worth studying or preserving. And this argument worked because indeed, the Registrar of Copyrights saw video games as lesser cultural artifacts.
That's one of the reasons why organizations like the VGHF became so important to the fight. By proving that there is an academic community and non-profits engaged in treating video games as seriously as they deserve. Because of that the ESA shifted its argument completely to the economic harms to the retro game market.
To counteract that argument, the VGHF performed a study last year showed that 87% of video games are no longer commercially available, so there's there's no market to ruin if those 87% were allowed to lend. They even proposed a lot of safeguards to limit the number of copies lent and DRM schemes to prevent borrowers from dumping the ROMs (which are out there anyway).
The ESA countered that those games would still be competing with retro games that are still being sold on the market, and that the protections weren't good enough. DRM can be cracked, and they don't trust the people who want to lend the games to not introduce side-channels to get around the restrictions. In their argument, only the rights holders can properly protect their games, and only with help from the DMCA.
It's worth noting that the Registrar of Copyright is famously even more strict than rights holders at these arguments sometimes. In 2012, they denied the request for teachers to break DVD encryption, even though lobbyists for the motion picture industry said they would accept it.
And so that's what this news is about. Despite the lobbying and the studies, they sided with the ECA, seemingly taking their arguments all at face value.
I should also note that publishers do often go after libraries for lending books. It's often said in these circles that if lending books through a library weren't already common when the DMCA was enacted, we'd have to fight just as hard every 3 years to get exemptions for what libraries have always done, and we still probably wouldn't get everything.
Countdown to Internet Archive getting sued on this one starts now. https://archive.org/details/internetarcade
I understand that the current state of copyright put them on thin- to no-ice. But that shouldn't be the case, IMHO. It's a net gain for the universe to let them loan these out-of-print materials. Publishers are working hard to make sure it's very expensive or impossible to do Internet lending. And Internet lending is exactly what the future of libraries should be unless we want to be stuck in a perpetually diminishing 1990.
IA is fighting the good fight against some seriously long odds.
Deleted Comment
But.. can any legal experts here explain otherwise, that this is a smart ruling?
No, you just need to clearly and effectively pressure elected officials, and to do that you need to raise awareness, educate people, etc.
> almost impossible
Never accomplished anything ever.
The more people who have complete archives (even if they're not being distributed freely) the more likely these games will survive.
That’s effectively what the decomp community is doing. Instead of PDF and interpreter it’s git and compilers. (Though music and visual artwork must be excluded for different copyright reasons).
My pitch to the lawyer was that it was simply a case of "longer wires" in terms of board input and output, however there is something in EU law that addresses encoding and transport over networks which causes the issue in terms of IP.
Super disappointing.
Not without separate licensing for electronic lending. At least that’s what publishers insist.
Zediva and Aereo had the same issue, albeit in a commercial application. I was hoping libraries would be given a little more freedom since their purpose is educating the public.