Back in December, we reported that the US Copyright Office was considering a proposal that would allow museums, libraries and archives to preserve abandoned online games like City of Heroes and EverQuest. The exemption put forth by The Museum of Art and Digital Entertainment (The MADE) and other enthusiasts would allow preservationists to circumvent DRM and run the games on their own servers.

This week, members of the Entertainment Software Association (ESA) including Electronic Arts, Nintendo, Ubisoft and others have stepped up to oppose the exemption. The ESA, which is the organization responsible for E3, cites that the proposal would violate Section 107 of the DMCA.

Section 107 involves the consideration of the “fair use” of copyrighted work. Among the factors considered is whether the copyrighted material is being used commercially. The ESA argues that since The MADE charges a $10 admission fee and allows visitors to play the games, it is using intellectual property in a commercial manner.

“Under the authority summarized above, public performance and display of copyrighted works to generate entrance fee revenue is a commercial use, even if undertaken by a nonprofit museum,” said the ESA.

"The proponents characterize these as ‘slight modifications’ to the existing exemption. However, they are nothing of the sort."

The argument is all well and good but it does not address the underlying problem, which is that older online games are being lost since they are not preserved by the copyright holders. These games have been abandoned by the producers due to costs in maintaining servers versus revenue generated. It falls within the same scope as the previous provisions made which allows museums and archives like the Internet Archive to use emulators to preserve old single-player games.

The game companies postulate that such preservation is not “necessary” with the resurgence in “retro gaming.”

“The ESA also stresses that their members already make efforts to revive older games themselves,” reports TorrentFreak. “There is a vibrant and growing market for 'retro' games, which games companies are motivated to serve.”

This argument feels weak when, for example, you consider that Doom 2016 is nothing like Doom 1993.

The ESA also argues that the exemption could be exploited so that the games being archived would compete with current offerings of the copyright holders. This, too, is a stretch of the imagination considering the emulated version of Doom on the Internet Archive had zero impact on the sales of Doom 2016.

It will be interesting to see whose side the Copyright Office takes. I’m betting that their decision will go along similar lines as their 2003 ruling, allowing non-online games to be preserved.