Video Game History

Arguably, video games have become the most important entertainment medium. 2022 US video game revenue topped $85B, compared with global movie industry revenue of $76.7B. Game history is thus an essential resource for scholars of culture, but the industry's copyright paranoia means they have little access to it.

Salvador Table 1

In 87% Missing: the Disappearance of Classic Video Games Kelsey Lewin of the Video Game History Foundation describes their recent study in cooperation with the Software Preservation Network, published by Phil Salvador as Survey of the Video Game Reissue Market in the United States. The report's abstract doesn't mince words:

Only 13 percent of classic video games published in the United States are currently in release (n = 1500, ±2.5%, 95% CI). These low numbers are consistent across platform ecosystems and time periods. Troublingly, the reissue rate drops below 3 percent for games released prior to 1985—the foundational era of video games—indicating that the interests of the marketplace may not align with the needs of video game researchers. Our experiences gathering data for this study suggest that these problems will intensify over time due to a low diversity of reissue sources and the long-term volatility of digital game storefronts.

Below the fold I discuss some of the details.

The report points out that the industry agrees on the cultural importance of video games:

a report published in 2019 by the Entertainment Software Association, the largest video game trade organization in the United States, declared that “Video games have grown to become an iconic component of American culture.”

But:

Although the game industry agrees with the cultural heritage field that preservation is important, they disagree about how severe this problem is and how to address it. Industry lobbyists in the United States have opposed new copyright exemptions for game preservation on the grounds that there is already a thriving reissue market.

Salvador Figure 1

Despite this the report finds that:

Only 13 percent of classic video games published in the United States are currently in release. This figure is comparable to the commercial availability of pre-World War II audio recordings (10 percent or less) or the survival rate of American silent-era films (14 percent), two other mediums at risk.

The problem this causes scholars is:

Publishers do reissue historical video games through a variety of formats, services, and products, but their collective effort has amounted to recommercializing or otherwise making available less than one- fifth of all historical games. As a result, nearly 90 percent of the game industry’s historical output is inaccessible without acquiring vintage games and hardware from the expensive second-hand market, visiting library collections in person due to restrictions imposed by Digital Millennium Copyright Act, or resorting to piracy.

If a game hasn't been reissued, scholars have to hope that it has been preserved. The report lists the reasons why reissues are so rare:

• Technical: As I explained in my 2015 report for the Mellon Foundation entitled Emulation and Virtualization as Preservation Strategies, emulation is the preferred technique for replaying obsolete games, and the game emulation community has been extrordinarily successful in developing emulations for older systems. But the report points out that:
  

  However, as Video Game History Foundation founder Frank Cifaldi explained in a series of talks presented at the annual Game Developers Conference, the video game industry has a long history of demonizing emulation technology for its association with piracy. Emulation technology for games first became widely viable in the mid-to-late 1990s and faced immediate pushback, notably in the high-profile 1999 lawsuit Sony v. Connectix, in which major game publishers challenged protected fair-use emulation activity.
  ...
  While anti-emulation hysteria seems to be subsiding, Cifaldi paints the picture that years of anti-emulation stances from the industry stunted the growth of the game reissue market at the time when it was becoming technologically viable.

  Emulation in the browser powers the Internet Archive's astonishing collections of early games, but for more recent games both for consoles and for PCs there are serious difficulties. The architecture of modern consoles and GPUs is both proprietary and complex, making it difficult to emulate them. And it may not be possible for in-browser emulation to deliver adequate performance.
• Licensing: Game publishers typically do not create all the content for their games in-house, but license some from suppliers. These licenses may prevent reissue:
  

  Resolving technical issues does not guarantee that a game can be reissued. Complex rights and licensing agreements for games and their content may also prevent them from being re-released. This is particularly true for games that were designed before there was a notion of a reissue market, when games were produced for a shorter shelf life and long-term availability was not an expectation or a concern.
  ...
  Sometimes licensing issues can affect specific content used in games, which also impacts their long-term availability. For instance, the role-playing Alpha Protocol was removed from digital storefronts in 2019 due to the expiration of the game’s music licenses, which the game’s publisher Sega chose not to renew. At the time of this study, Alpha Protocol remained unavailable, despite Sega fully owning the game’s publishing rights. In addition to licensed music, similar content licensing concerns affect titles such as sports video games with complex trademark and likeness agreements and games that use stock video footage.

• Ownership: Even if there are no license problems, the ownership of the game may be unclear:
  

  This is not an uncommon problem. A mass-scale case study for these types of ownership issues is the Stephen M. Cabrinety Collection at Stanford University Libraries (SUL), a collection of more than 18,000 game and software titles released from 1975–1995. According to Henry Lowood, curator for History of Science & Technology Collections at SUL, Stanford and the National Institute of Standards and Technology attempted to contact the rightsholders for every game held in the collection to proactively seek permission for preservation activities. For a significant number of games—Lowood estimates 20 to 30 percent—the documented rightsholders could not confirm that they controlled the rights to those titles. Accounting for other issues determining and contacting owners, Lowood estimates that up to half of the Cabrinety Collection could be considered orphaned works. In addition to the challenges this poses for Stanford’s preservation efforts, the uncertainty about the ownership for these games means they may never have a pathway to recommercialization.

• Digital: Availability The situation is even worse for games that were never issued on physical media but depended upon a game platform:

  The largest major platform shutdown in recent memory is the closure of the digital stores for the Nintendo 3DS and Wii U platforms. Nintendo shut down the 3DS and Wii U eShops on March 27, 2023, resulting in the removal of 2,413 digital titles. Although many of these are likely available on other platforms, Video Games Chronicle estimates that over 1,000 of those games were exclusive to those platforms’ digital stores and are no longer available in any form, including first-party Nintendo titles like Dr. Luigi, Dillon’s Rolling Western, Mario & Donkey Kong: Minis on the Move, and Pokémon Rumble U. The closures also affected around 500 historical games reissued by Nintendo through their Virtual Console storefronts, over 300 of which are believed not available on any other platform or service.

• Physical: Availability Even if a researcher has the physical medium and the obsolete hardware they may still be stymied:
  

  Having a physical copy of a game and vintage hardware in working condition is also not a guarantee that the game is playable. Games released during the digital game distribution era may have content or features tied to online services, which may be (and regularly are) deactivated. According to researcher James Newman, this is sometimes employed by game publishers as a deliberate strategy to devalue used games, shorten their distribution window, and encourage sales of new titles, which has ominous implications for preservation.

  This is part of the looming death of the First-sale Doctrine.
  
  These days if researchers don't have the media or hardware they likely can't afford to buy them:
  

  While used games were once affordable, functional, and plentifully available, it has now become unreasonable to expect researchers to acquire rare out-of-release titles on the second-hand market as a way to access them.

• Piracy: This is the usual result of copyright maximalism:
  

  In the absence of a fuller reissue market or other reasonable research options, piracy fills in the gap. For both consumers and researchers, piracy is one of the only methods—often the easiest method—for playing out-of-release games. Researchers especially depend on unauthorized copies of games for scholarship and teaching, often under fair use claims to reproduce and emulate games without rightsholder permission.
  ...
  There are a variety of reasons why members of the general public would pirate out-of-release video games. But for video game history researchers, piracy is often a last resort and necessity for proper study.

• Availability: in Libraries Libraries such as Stanford's collect and preserve video game media and hardware, but:
  

  Federal regulations in the United States currently require researchers to access most games in library video game collections on-premises, which can be impractical and expensive. The fan-sourced game statistics website HowLongToBeat reports that video games, on average, take around 20 hours to complete. If a researcher wants to play through an entire game held by a library or archive, they may need to prepare for days or even weeks of travel, lodging, childcare, and other accommodations needed to visit a research collection.

  Even this may be impractical. Some collections have resorted to video recording a skilled player navigating the game as a form of ensuring some access to obsolete games.

The legal and technical difficulties of preserving state-of-the-art games mean that future scholars of the art will increasingly depend upon reissues, and thus upon the whims of the publishers. This isn't a happy prospect because as the report notes:

Industry lobbyists in the United States have opposed new copyright exemptions for game preservation on the grounds that there is already a thriving reissue market.

Whereas the report shows that the "thriving reissue market" only provides around 13% of the possible titles.