A Link to the Past? Videogame Association Faces Preservation Challenge

Should people be allowed to change the code of a videogame that's been abandoned by its makers? Archivists and the technical community are pushing for a regulatory change to allow just that, but the Entertainment Software Association says that, with constantly improving technology, games never really go obsolete.

Come September, a videogame that’s perhaps been pirated more than any other is going to get a breath of new life.

Nintendo’s Mario Maker is something of an unusual take on the retro games of yore. The game effectively allows users to take today’s technology to create their own versions of the classic Super Mario Bros.—flipping the overall concept of the “game” on its head. Not bad for a product that’s 30 years old.

Examples like Mario Maker help make a point that the Entertainment Software Association (ESA) is currently pitching. The association would like to block efforts to create exceptions under the Digital Millennium Copyright Act (DMCA) for “abandonware,” or software that is no longer being produced or maintained. In particular, organizations such as the Electronic Frontier Foundation (EFF) are pushing for exemptions that would allow users to change the data of a third-party game so that players can keep the action going on a third-party server.

From our perspective, there is no merit to the term ‘obsolete.’

This issue is particularly important for games made in the past decade or so. For example, most of the Mario games don’t require online access to play, which means that you can generally play such games using a videogame emulator without having to change the underlying code. But newer games that have an online or cloud component may stop working if a server is shut down. Electronic Arts, for example, is known to shut down the servers for recent editions of its sports games after a fairly short period of time. (It happens to nonsports games, as well.)

The enthusiast community is open to continuing to run these games on their own personal servers but have concerns about the potential legal risks of doing so. Last November, however, EFF pushed the Library of Congress [PDF] for exceptions to the current DMCA rules in cases of abandonware, noting that “the threat of liability inhibits the archiving and preservation community, in both its formal and informal guises.”

“There Is No Merit to the Term ‘Obsolete'”

As Ars Technica reports, ESA sees things differently. The association’s leadership came out against the idea of allowing exceptions for abandonware due to the fact that it creates unfair competition for newer games and removes the possibility of commercial revival—something that’s common with popular classic games such as Final Fantasy VII, and, well, Super Mario Bros.

“There’s no such thing as an obsolete game when you can revive it on any platform at any time,” ESA President and CEO Mike Gallagher said at a media event during the association’s Electronic Entertainment Expo. “It’s digital. From our perspective, there is no merit to the term ‘obsolete.’ There is no need to allow people to hack or otherwise open up these things or create competing economic enterprises.”

Culture Lost?

The association’s take differs significantly from that of the archival community—including the Internet Archive’s arcade, which offers a significant collection of videogames that are playable in a standard desktop browser, largely for preservation reasons. And in recent comments to Ars Technica, International Center for the History of Electronic Games Director Jon-Paul Dyson noted that the move to online gaming threatened to take away some of the historic context to the games.

“An analogy here is maybe to a piece of architecture,” Dyson said. “When you’re seeking to preserve a historic house, there may be layers, it may have been lived in by many different people. Mount Vernon had been lived in by George Washington’s descendants, so they made a decision to restore it to George Washington’s time and erase this later history. Do you make the same kind of decision with games?”

But ESA sees this sort of iteration as beneficial to the long-term value of the games as technology evolves.

“Videogame publishers do not intend to surrender their rights in their copyrighted videogames when deciding to end server support,” the association argued in a statement to the U.S. Copyright Office [PDF]. “To the contrary, because a videogame publisher may invest millions of dollars developing a single videogame, it is not uncommon to improve upon or reintroduce a game at a later time or to iterate upon the software after server support has ended to obtain a return on this valuable investment.”

So the question is what’s most important for the gaming industry: preservation or iteration? It appears the question has a different answer, depending on whom you ask.

Ernie Smith

By Ernie Smith

Ernie Smith is a former senior editor for Associations Now. MORE

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