In just a few weeks, Nintendo 3DS and Wii U owners will no longer be able to buy new digital games on their older platforms. The move will cut off consumer access to hundreds of titles that would otherwise be legally inaccessible.
But while that’s a big annoyance for consumers holding onto older hardware, the current rules are more of a nuisance for historians and archivists looking to preserve access to those game libraries for future generations. It means that it can cause many crises.
“While we regret that people will no longer be able to purchase digital 3DS and Wii U games, we understand the business realities that led to this decision,” said the Video Game History Foundation (VGHF). murmured When the eShop closure was announced a year ago. “What we don’t understand is what path do we expect Nintendo to take if fans want to play these games in the future.”
DMCA headaches
Libraries and organizations such as the VGHF say their efforts to preserve games are currently blocked by the Digital Millennium Copyright Act (DMCA). The DMCA generally prohibits making copies of DRM-protected digital works.
The US Copyright Office has issued an exemption from these rules to allow libraries and research institutions to make digital copies for archival purposes. Through online access systems, these organizations can even distribute archived digital copies of items such as e-books, DVDs, and even general computer software to researchers.
However, video games are expressly excluded from these remote access exemptions. This means that researchers wishing to access archived game collections must go to the physical location where the archives reside, even if the archived games themselves are not distributed on physical media.
As VGHF co-director Kelsey Lewin said in a conversation with Ars Technica, this kind of access restriction “doesn’t make sense” for video games. Even if an institution like The Strong Museum of Play were to obtain and maintain copies of all his current 3DS and Wii U eShop games, “the only thing anyone could legally play or study.” The method of [those games] If they flew to Rochester, signed the agreement, sat on the grounds and played it,” Lewin points out.
VGHF Library Director Phil Salvador pointed out how unrealistic such on-site access requirements are for game researchers. “Currently, if a researcher wants to study his unreleased 50-hour RPG in the library, they may need to book days or weeks of travel, lodging, research leave, and childcare.” He said. he said to Ars. “Requiring researchers to access games on-site can be prohibitive. Thankfully, emulation-as-a-service technology already exists, allowing secure remote access to video game material, if permitted.”
Fear of the “Online Arcade”
VGHF says that in addition to preventing consumers from buying digital 3DS and Wii U games, Nintendo has also helped prevent this kind of easy research access to archival copies. As a member of the Entertainment Software Association (ESA), Nintendo “aggressively funds lobbying efforts to prevent even libraries from providing legal access to these games,” he said. I’m here. Said“I can understand not providing commercial access, but to prevent the organized effort to preserve these titles on top of that is actively destroying video game history.”
In fact, the ESA was one of the main groups opposing the DMCA exemption for offsite access to library game archives in a wide-ranging debate before the U.S. Copyright Office in 2021.
During these discussions, ESA attorney Steve Englund said the proposed exemption would allow the library to “publish emulated games online for a general audience” without meaningful access restrictions. Englund said the Internet Archive’s emulated games collection could be used for “recreational play by public library patrons” beyond “research” purposes. I used it as an example of a kind of “online arcade” to play. This kind of widespread access could result in “potential … market harm” for ESA copyright holders, Englund said.
Researchers at the hearing said these concerns were exaggerated. Henry Lowood, media curator at Stanford University, said institutions like his are not interested in providing “unlimited access for everyone” and “are not going to publish anything on the open web. It’s a closed system with authenticated users and is mostly restricted.” The aforementioned researchers, students, and other groups. ”
But even this kind of access restriction was not always reassuring for England and the ESA. “College students are important consumers of video games,” Englund argued. “Simply saying that someone should be a college student identified as being enrolled in college and have access to emulation is not a message of comfort.”
