DMCA §1201 and Video Game Preservation Institutions: A Case Study in Combining Preservation

and Advocacy

Kendra AlbertHarvard Law School@KendraSerra

Why archival institutions?

• Trust

• Posterity

• Long-term thinking

Methods: Research

“Are online citations in law

reviews serving their

intended purpose — to

permit an interested reader

to access the material cited

in the journal?”

“Our finding is that 49.9% of the

links cited in the Supreme Court

opinions no longer had the cited

material.”

“No. Of our spot-checked

sample, only 29.9% of the HRJ

links, 26.8% of the HLR links,

and 34.2% of the JOLT links

contained the material cited due

to link or reference rot.”

Methods: Content-Specific Action

Methods: Raising Awareness

“The response was, as librarians have come to expect, both inconsistent and discouraging. First, Tsou and Vallier were told that an educational license for the download was impossible, but that UMG could license a CD. Later, they dropped the idea of allowing the library to burn a CD from the MP3 and said an educational license for download was possible, but only for up to 25% of the “album.” For this 25% there would be a $250 processing fee as well as an unspecified additional charge that would make the total cost “a lot more” than the $250. Even worse, the license would be limited to 2 years, making preservation impossible.”

IGN.com

Nintendo Wi-Fi Connection service for Nintendo DS and Wii has ended, NINTENDO: WHAT’S NEW (May 20, 2014) http://www.nintendo.com/whatsnew/detail/vyWpoM6CBIe6FjW8NIY7bvzOrgBURhzw.

*I’m aware I’m mixing up images from Mario Kart and Super Mario Brothers. Please forgive the blasphemy.

James Newman

“Best Before examines how the videogames industry's retail, publishing, technology design, advertising and marketing practices actively produce obsolescence, wearing out and retiring old games to make way for the always new, just out of reach, 'coming soon' title and 'next generation' platform.”

DMCA* 1201 (the other part of the DMCA)

*Digital Millennium Copyright Act

§1201(a)(1)(A):No person shall circumvent a technological measure that effectively controls access to a copyrighted work under this title

Exemptions:Every 3 years, the Librarian of Congress can make a rule exempting circumvention for fair uses that are or would be adversely affected by §1201(a)(1)(A) within the next three years.

Where would intervention be helpful?

• Trust

• Posterity

• Long-term thinking

“Copyrights held by corporations endure for up to 120 years, and under the DMCA cultural heritage institutions enjoy no special privileges. A video game console generation typically lasts less than a decade. We are currently in the 7th generation of consoles, and personal computers have evolved in equally dramatic ways since Apple II and Commodore 64 began saturating the home PC market. Given the difficulty of identifying and then obtaining permission from the current rights holders of older video games, this translates into libraries risking fines of $200-150,000 per game were they to migrate their collection of classic software from 3.5" floppy disks to images stored on hard drives, an act comparable to

rebinding a book or creating an access copy of a manuscript.”

– Preserving Virtual Worlds Final Report

• “Imagine an art museum with the lights off, and you can get an idea of what a non-playable videogame museum would be like. Games must be played to be understood fully, and to fully preserve a game, its entire experience must be preserved. Practically, this means preserving the box the game came in, the manuals, the maps, the advertising inserts, and the original source medium for the game itself, be that a floppy disk, cassette tape, CD, DVD, or cartridge. It is a big job, and it’s easy for bits to go missing before they come to the museum.”

Statement of Alex Handy, Director of The Museum of Digital Arts and Entertainment

“Digital media are inherently fragile and the ability to migrate games to new hardware/media is critical to any preservation activity we might take, whether through migration or emulation. [The] DMCA's technological protection measure language takes the difficult case of software preservation and transforms it into a fundamentally impossible case.”

– Jerome McDonough

“Preservation activities undertaken either by cultural institutions (museums, libraries) or individual researchers usually become literally impossible when developers cease support of the technical infrastructure required to maintain these games. This statement is true for several reasons.”

– Henry Lowood

“If a game server is shut down without provisions being made for access to the original software, preservation is impossible.”

– Henry Lowood

“If there is no access to the game world, it becomes impossible to work with the game community on preservation projects.”

“Without circumvention of current restrictions, many kinds of preservation and research projects effectively become impossible.”

“In the long term, it is often impossible for institutions or individuals to locate corporations or people who can sign off on the rights – or even know that they are the rights-holders.”

Where would intervention be helpful?

• Trust

• Posterity

• Long-term thinking

Kendra Albert@KendraSerra

Other examplesthat I’ve missed?

Questions? Thoughts?