by In just a few weeks, Nintendo 3DS and Wii U owners will finally lose the ability to buy new digital games on these old platforms altogether. The move will cut off consumer access to hundreds of titles that cannot be legally accessed otherwise.
But while this is a significant inconvenience for consumers holding on to their old material, the current rules mean it could cause a much bigger crisis for historians and archivists trying to preserve access to these game libraries for future generations. generations.
“While it’s unfortunate that people will no longer be able to buy 3DS or Wii U games digitally, we understand the business realities that led to this decision,” the Video Game History Foundation (VGHF) he tweeted when the eShop shutdowns were announced a year ago. “What we don’t understand is what path Nintendo expects its fans to take if they want to play these games in the future.”
DMCA headaches
Libraries and organizations like the VGHF say their efforts to preserve the games are currently hampered by the Digital Copyright Act (DMCA), which generally prevents people from making copies of any digital work protected by DRM.
The US Copyright Office has issued exceptions to these rules to allow libraries and research institutions to make digital copies for archival purposes. These organizations can even distribute archived digital copies of items such as e-books, DVDs, and even general computer software to researchers through electronic access systems.
But these remote access exceptions expressly leave out video games. This means that researchers who want to access archived game collections must travel to the physical location where that archive resides—even if the archived games themselves were never distributed on physical media.
This kind of access restriction is simply “not reasonable” for video games, as VGHF co-director Kelsey Lewin put it in a conversation with Ars Technica. Even if an institution like The Strong Museum of Play acquired and preserved copies of all current 3DS and Wii U eShop games, “the only way one could legally play or study [those games] it’s if they flew to Rochester, signed a consent form and sat in the facility playing,” Lewin points out.
VGHF Library Director Phil Salvador pointed out how practical this type of field access requirement can be for game researchers. “Right now, if a researcher wants to study an out-of-print, 50-hour RPG in a library, they may need to book days or even weeks of travel, accommodation, research leave and childcare,” he said. Ars said. “Requiring researchers to access games in situ can be prohibitive. It discourages the use of institutional toy collections and, in turn, discourages institutions from maintaining them. Fortunately, emulation-as-a-service technology already exists that, if allowed, could enable secure, remote access to video game hardware.”
Fear of an “online arcade”
In addition to preventing consumers from buying 3DS and Wii U games digitally, VGHF says Nintendo is also helping to stop this kind of easy research access to archival copies. As a member of the Entertainment Software Association (ESA), Nintendo “actively funds the lobby that prevents even libraries from being able to provide legal access to these games,” VGHF he said. “Not providing commercial access is understandable, but preventing institutional work to preserve these titles beyond that is actively destructive to video game history.”
Indeed, ESA was one of the main groups arguing for an exemption from the DMCA for off-site access to library game files during extensive arguments before the US Copyright Office in 2021.
During those arguments, ESA attorney Steve Englund expressed the industry lobby group’s concerns that the exemption, as proposed, would allow a library to “open imitation games online to a public audience” without meaningful restrictions on access. . Englund pointed to The Internet Archive’s simulated game collections as an example of the “online arcade” genre that transcends “research” purposes and allows for “recreational play by public library patrons.” That kind of broad access could cause “potential … market harm” to ESA copyright holders, Englund said.
Investigators at the hearing called those concerns overblown. Stanford University media curator Henry Loud said that institutions like his are not interested in providing “unfettered access to everyone” and will not “post anything on the open web. This will be a closed system with authenticated users and limited almost to the researchers and students or other groups we have mentioned earlier.’
But even these kinds of access restrictions weren’t necessarily comforting to Englund and ESA. “Students are significant consumers of video games,” Englund argued. “Simply saying that someone is a student at a university that is recognized as being enrolled in the university should have access to emulation is not a comforting message.”
