Video Game Preservation: Not a DIY Project, But Now A Lawful One

(This post was originally written for Ron Coleman’s Likelihood of Confusion blog. Please note that while the author is a licensed and experienced attorney, nothing in this post constitutes specific legal advice. It is provided for general educational purposes only. The author has made an offer of pro bono consultation related to the subject matter of this post. This may be considered ATTORNEY ADVERTISING in some jurisdictions.)

If you are into vintage video games, you probably know about “ROM Sites.” ROM sites are websites where you can download the ROM (Read Only Memory) code for classic cartridge or board-level games, such as Nintendo Entertainment System cartridges or arcade cabinet games like “Spy Hunter.” They’re not really different in kind from websites or torrents where you can download more modern software which was available on disk or CD-ROM. They’re just a little more arcane because you have to not only download the ROM code (which has been “ripped,” or copied from the ROM chips to a computer hard drive) but download and run “emulator” software, which allows your modern PC to run code written for much, much older hardware. It’s entirely doable, but requires a little effort and tech know-how.

Recently, Nintendo sued one of the better known ROM sites, loveroms.com, and won a 12 million dollar judgment against them for copyright infringement. Here’s a copy of what was the front page of loveroms.com from the complaint:

Here’s what’s on the loveroms.com front page now:

Apology to Nintendo

Our website, LoveROMS.com/LoveRetro.co, previously offered and performed unauthorized copies of Nintendo games, in violation of Nintendo’s copyrights and trademarks. LoveROMS.com/LoveRetro.co acknowledges that it caused harm to Nintendo, its partners, and customers by offering infringing copies of Nintendo games and has agreed to cease all such activities. To access legitimate Nintendo games online, please visit www.nintendo.com for information about the Nintendo Game Store.

So, yeah. I think we’ve conclusively established that ROM sites don’t automatically win the ol’ “Fair Use” argument, especially the “but we didn’t charge and we gave credit and besides, they aren’t selling those games any more anyway” variant.

However, one of the more common and less obnoxiously entitled arguments for ROM sites is that they offer people a chance to play video games, including classic/seminal games, which are no longer available for purchase. And frankly, there is something to this. These games are part of our cultural heritage, and they should be preserved like any other culturally important body of work.

Normally, archiving or otherwise preserving culturally significant material, even if you would otherwise be infringing on its copyright, has a pretty good shot at a Fair Use defense, which is as it should be. However, there are two problems with archiving some kinds of computer software, including ROM. One is traditional copyright infringement, which as I said we’ve got a shot at overcoming in this context. But the other is the anti-circumvention provisions of the Digital Millennium Copyright Act. Specifically:

17 U.S. Code § 1201 – Circumvention of copyright protection systems

(a)Violations Regarding Circumvention of Technological Measures.—

(1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

The DMCA does not include a “Fair Use” defense the way the Copyright statute does: it’s basically a strict liability rule. You circumvent a tech measure meant to control access to a copyrighted work, you have violated the law.

But, good news!

§1201 (a) (1) also provides that the Librarian of Congress, who is in charge of the Copyright Office and don’t ask that’s just how it is, can make regulations which create exceptions to this provision. As an example, the Librarian made an exception several years ago that it is not a violation of the DMCA to circumvent the copy protection on an electronically-distributed literary work to allow it to be mechanically read aloud to a visually-impaired person (so long as the the visually-impaired person otherwise had lawful license to access the work, like they bought it as an e-book or borrowed it from a library e-lending system.)

The Electronic Frontier Foundation and other groups have been arguing for multiple revision periods (the regulations are revised every three years) that there should be an exception for preservation of video game software which is no longer available commercially and which runs on hardware which is no longer available commercially. (You can buy a used NES and used cartridges, but you can’t buy new ones, so they are not “available commercially.”) Up until now the Librarian has declined to create such an exception. But during the round of regulatory review which just ended, that changed. The regulations now provide an exception for circumventing copy protection for, among other things:

a) Video games that need external computer servers for authentication (in other words, if the game has to verify that it is a legit copy on the publisher’s server) if the publisher no longer provides such authentication servers and thus the games are no longer playable.

b) Video games that don’t need such servers, but for which such circumvention is necessary for preservation purposes.

c) Computer programs that run video games for which such circumvention is necessary for preservation purposes.

You can see the rule changes here: https://www.gpo.gov/fdsys/pkg/FR-2018-10-26/pdf/2018-23241.pdf

You need to go almost to the end, as most of it is history and discussion. The rule changes start on Page 19 under “Final Regulations.” They also include some pretty beefy right-to-repair provisions, which I am all for, as well as some other things. But right now we’re doing video games.

So anyway ROM sites are legal now, right?

WRONG.

The new exceptions require that the circumvention be used only either for people to re-enable their own properly licensed games, or for:

… Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.

So no, you can’t just slap “GREATER TUSCON VIDEO GAME PRESERVATION SOCIETY OFFICIAL ARCHIVE” on the home page of your ROM site and call it a day. You either have to own your own, lawfully purchased copy of the game, and circumvent the copy protection to enable you to play it, or be an eligible library, archive, or museum and circumvent the copy protection to allow preservation of the game in a playable form on the premises of your library, archive, or museum. In no way does this regulatory exception allow you to put cracked ROM on a website and let any-old-body download them. Nor are you allowed to download a ROM you don’t own a lawfully purchased copy of and play it on your emulator in the name of cultural preservation. TANSTAAFL.

Now, some Anticipatory Frequently Asked Questions:

Question: Is an old NES game which was off the market for decades but then Nintendo brought it back in that cute little Nintendo Classic console “commercially available” for purposes of this exception?

Answer: Answer unclear: try again later.

No, seriously. I could argue it either way, frankly. That question will probably lead to at least one Federal court case, if not about a Nintendo game then on some similar grounds. We’ll know when a court tells us. Until then, try to concentrate on the games that are most in danger of being lost to time, okay?

Question: But I really WANNA play NES Barbie and it’s IMPOSSIBLE to find a cart! Can’t I…

Answer: Let me stop you right there. No.

Also, I don’t believe you. I was in a vintage video game store last month and they had a copy of freaking Custer’s Revenge for the Atari 2600. Don’t Google that, it’s awful. My point is it doesn’t matter how old, obscure, and/or repulsive the game is, you can find a copy if you try and if you don’t want to pay for it, that’s your problem. For the games which truly are lost, drop me an email and we can talk specifics.

Question: Hey, wait, that regulation just says it’s okay to circumvent the copy protection. What if I want to make a backup copy? Or multiple backups? Or format-shift my cart’s ROM for when the last NES console gives up the ghost?

Answer: Backups, including format-shifting in anticipation of technological change and/or obsolescence, were always arguably lawful as a Fair Use and/or simply not copyright infringement in the first place. That’s a different, even longer and more complicated story. The regulations only needed to deal with the DMCA, because it doesn’t have a Fair Use provision. Problem solved. Or at least largely addressed.

Question: I loves me some classic video games and I want to be part of the solution! How do I get to be an official video game preservation whatsit?

Answer: First, kudos to you. Second, there’s no official way to do this. The people who successfully lobbied for these exceptions fought hard to get them as broad as the Librarian would allow. (Kudos to them, too!) But they are still fairly strict. You have to be an “eligible library, archive or museum.” Briefly, an eligible facility has to be open to the public and/or to unaffiliated researchers, it has to have a public service mission, it has to have trained staff or volunteers, it has to lawfully own the original software, and it has to provide reasonable digital security measures.

So can you run one of these bad boys out of your house?

Highly unlikely. You’re either going to have to have your own physical facility, or work with one. I guess if you want to dedicate your garage to it and keep it open to the public, it’s possible, but I wouldn’t head too far down that road without some serious legal advice.

Could this be, say, your local public/college/university library?

Maybe! If you can persuade them to set up some computers with emulators, and donate them some legit carts to back up the ROM rips, you may be well on your way. The library may very well have access to trustworthy advice on copyright law: ask them. If not, and you are really trying to preserve video games and not set up your own private arcade, you should be able to find a video game lawyer who can give you some pointers.

NOTE:  I will provide a free consultation to anybody who is interested in creating a preservation entity which is “eligible” under this regulatory exception. I may or may not be able to give you actual legal advice, but I will do the best I can for you, and I will not take your money. This is important.

Question: How are people who can’t travel to an eligible facility and can’t get a legit copy of a cart they want to play supposed to take advantage of these exceptions?

Answer: They aren’t. Sorry, can’t have everything. Try entering comments at the next triennial revision process.

As always, questions are welcome in the comments or by any convenient contact means. Thanks for reading!

M

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