October 4, 2023

Unacceptable Loss: Video Game Preservation Webinar and Q&A

On September 26, 2023, Library Futures hosted Unacceptable Loss: Video Game Preservation in Libraries and Archives with Phil Salvador (Video Game History Foundation), Laine Nooney (NYU and Unboxing Pod,) and Meredith Rose (Public Knowledge) discuss Salvador's new report "Survey of the Video Game Reissue Market in the United States." Participants kindly agreed to answer a few more questions from the audience.

Thinking about the SAA panel that featured archivists who presently work at gaming companies - do you see paths forward for collaboration with contemporary companies in creating a larger archival infrastructure and carving out a niche for video game archivists, the same way that we have museum archivists, corporate archivists, a/ archivists, etc.?

Phil: This is something we’d love to see, but it would involve those ongoing conversations and trust-building we talked about during the panel. The game industry has typically worked from the viewpoint that internal materials are trade secrets, even going back decades, and I think building relationships with developers to show that their materials can be handled sensitively — especially working with smaller independent developers — is a great place to start.

Did your survey investigate streamer playthroughs posted on YouTube as a means for historical research?

Phil: We didn’t look into this in the study, but playthrough videos, livestreams, let’s plays, etc. are absolutely an alternative way to preserve and document video games, especially for (as we talked about) games that cannot be traditionally preserved as standalone objects. For the study, we focused on access to the original games since we were concerned about copyright policy around games as archival objects, but it would be interesting to study examples where playthroughs have been used as surrogates for research, especially for rare or difficult-to-play titles.

Have any of the preservationist initiatives addressed 3rd Party "Knockoff" consoles? (Not just the multiple-games-built-in ones or 3rd Party hardware that flooded the market when licensing for OG hardware expired in the mid 2000s... thinking more along the lines of the Nintendo Famicom knockoff console I had as a kid called the "Good Boy" for example!).

Phil: This is one of the many areas where the gaming community is doing a great job documenting it. The fan-run Bootleg Games Wiki and Unauthorizon are doing excellent work; I think it makes sense for institutions to support these types of efforts rather than trying to reinvent the wheel.

Could you tell us a bit more about playing retro games on the Internet Archive? I hear they have been working with the MAME developers.

Phil: The Internet Archive has been doing some pioneering work in building in-browser emulation tech, often collaborating with (as you mentioned!) with emulator developers to port their applications to Javascript. Jason Scott actually wrote about this program just last week: https://blog.archive.org/2023/09/20/a-quarter-in-a-quarter-million-out-10-years-of-emulation-at-internet-archive/

The Internet Archive makes a fair use argument for their game collections, which is different from the DMCA exemptions we’re pushing for. So while what they’re doing doesn’t directly affect the copyright situation for other libraries and archives, I could imagine libraries continuing to build on the emulation tech they’ve developed as we explore remote access for games.

I am an archivist. My assumption for people researching products created by businesses, for example wine or video games. From my perspective, the records that document the creation, drafts, decisions made during the creation process are also critically important. What is the perspective of the Game Libraries on also collecting the records? It makes me sad to see the separation of records from products, especially if the intention is research.

Phil: We talked about this during the panel, but generally we see one of three things: either the materials are quickly discarded because they’re not considered important; they’re kept under private control by larger companies because they’re believed to be sensitive; or they’re difficult or impossible to collect, like Slack communications. Game history institutions do try to collect these materials, though they often come from individuals who kept their own documentation rather than from companies. This is an ongoing culture-shift conversation we’re all having with the game industry.

Do particular fan projects of "remaking" or "remastering" older games fall under the preservation discourse as well? (i.e., the ill-fated Chrono Trigger 3d remake from the early 2000s that ended due to a cease-and-desist from Square Enix, while Chrono Trigger hasn't been subject to any official treatment in "remake" capacities since the Nintendo DS version I think?)

Phil: I have some personal experience with this, having been a hobbyist fangame developer when I was younger! I think these are works worth preserving for the same reason that, say, mixtapes or underground comics are worth preserving, but because of the legally murky nature of fanworks like that, for the sake of simplicity, we’re not really focusing on them with this current copyright push. But I know that institutions do collect games like these!

How do you think the recent Hachette v. IA case (and its ruling) will influence game preservation and possible future legal cases? I am thinking here about all the game emulations available on Internet Archive or just general library access. I know at MPOW we used to digitize films and tv that are not available streaming for class reserves but following the case, we are only putting the DVDs on hold and most students do not have DVD players.

Brandon: The Hachette ruling (which is a district court opinion currently on appeal, so things could well change) can be distinguished from the kinds of uses most preservation folks make in a variety of ways, including (perhaps most importantly) that the books that were at issue in that case are commercially available right now. The court’s primary concern in Hachette was the alleged unfair competition between the IA’s copies and the ones sold by publishers. In cases where the vendor is unwilling or (as often) unable to offer a work for sale commercially, the fair use calculus should be different. The IA’s argument has been, “If we own a physical copy, we should be able to digitize it, take it off the shelf, and lend a digital copy instead, period.” If that argument fails, there are many others available that can still justify preservation and access to a wide variety of cultural materials. The Apple v. Correllium case is worth reading, because it shows how research access to software can be a transformative fair use, even when the software is still commercially available.

Are there any legislative efforts currently to mandate Library of Congress archival copies?

Phil: I know that the Library of Congress does collect some video games when they’re submitted to them, including source code, but there’s no mandatory deposit for video games. I’m not sure beyond that, but I know getting game donations can be especially tricky since most games are no longer issued in physical form, and the digital file formats/standards can vary dramatically.

What are your thoughts on fan re-implementations of games, such as OpenRCT2 for RollerCoaster Tycoon 2?

Phil: See the question below about the porting/modding community!

Laine, in general, have you run into any requests for newer games that also suffer from preservation issues? I'm thinking of net flash games specifically which I've done some research on.

I don’t typically work on materials from the early 2000s-2010s, but it’s definitely and impending problem for those who do. The entire early culture of Facebook games, for instance, Flash games like you mentioned, and of course even lots of early mobile. The proliferation of games on internet platforms means there’s entire swathes of game history that are likely gone. It will take alot of footwork from the next gen of historians, archivists, collectors, and technologists to track down executables, build emulators, and collect documents. 

Rather than taking on the copyright or IP issues, would it make sense to argue that, if a platform is past end of support (Win3/NT, MacOS 8, PS2, etc.) then the software published for those platforms is "at risk" and should be preserved?

Brandon: Unfortunately, you can’t ignore the copyright issues. Fortunately, fair use permits all the major steps in a preservation workflow. (See the SPN Fair Use Best Practices for more information.) Unfortunately, broad access isn’t necessarily a step in a preservation workflow. So it’s easy enough to say that material that is at risk should be preserved. It gets harder to say, “...and made accessible under XYZ circumstances to ABC people.” It’s not impossible, at all, but it’s where things get more interesting. 

Archiving video game music? YouTube videos featuring music pieces get taken down very often.

Phil: Apart from official soundtrack albums, I think this is one of those areas that’s always going to remain in the community’s hands (in terms of, say, being able to access game music en masse on YouTube). I love pointing to VGMPF as an example of what the community is doing. It’s not something VGHF is focusing on, though we doe collect original materials from composers, audio designers, etc., which falls more into traditional archival collections.

Is the Center also working to advocate for unpublished content, such like are prevalent in Archives?

Phil: We do get unreleased and unfinished video games, which are usually called “prototypes” by the game community. In fact, our founder Frank Cifaldi got his start in game preservation by recovering game prototypes! These are absolutely important materials, especially when we can analyze and dissect earlier versions of games or titles that never made it to shelves. For a great example of the community’s efforts around this, check out Hidden Palace, a website dedicated to sharing and documenting what I would describe as unpublished draft versions of video games.

How has the porting/modding community helped or harmed access? Are they willing to work with archivists?

Phil: There are so many examples where fan-made ports, modifications, and re-implementations have made games more accessible. In fact, most of the widely available game emulators, including the ones used by the Internet Archive, were developed by the community. I can say that at least at VGHF, we work closely with these communities to help us work with unusual game materials, because these are THE experts on these topics! If we’re working with (for a real-life example) a prototype Nintendo 64 game, we know the people in the Nintendo 64 hacking community who we can contact for support.

To deviate from this question a little bit, what’s also been really interesting is how these fan-run efforts interact with the commercial marketplace. Oftentimes, fan modifications and re-implementations end up in a gray area that I think publishers are reluctant to encourage (for instance, a modification that allows a game to run on a modern computer by removing its copy protection). The good news is that we’re seeing more game publishers tapping into these sorts of community resources in approved, official ways. A great example of Nightdive Studios, a company that specializes in game reissues; they hired a community member known for developing game re-implementations and now have him handling the official re-releases of those same games. We’re hopeful that publishers will continue to embrace or at least tolerate those types of efforts.

My question is specifically about the methodology you guys used to calculate that 87% number...in the report you mention the use of Moby of course and the limitation of the report in that it only focuses on the United States. Do you guys have any plans for doing work in an international context? If you do, can you make a wildly irresponsible guess as to what that number might look like in that context? :D

Phil: MobyGames does include international games! But since (as Brandon mentioned) we did this study for the sake of moving the needle on US copyright law, we purposely focused on titles with US-specific releases.

If we broadened our scope internationally, I think the numbers would be lower. Certain ecosystems would shift (for instance, British computer games from the 1980s tend to be more available than American computer games from the 1980s, since that’s the source of a lot of British gaming nostalgia), but we’d also start including games that have an inherently international, non-region-based release, such as web browser games or mobile games. These tend to be VERY volatile, especially mobile games. With an expanded scope, I think we'd want to keep focusing on specific ecosystems too, because that could show us where the region-specific availability gaps are that libraries could be focusing around.

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