Why game archivists are dreading this month’s 3DS/Wii U eShop shutdown

In just a few weeks, Nintendo 3DS and Wii U owners will finally completely lose the ability to purchase new digital games on those aging platforms. The move will cut off consumer access to hundreds of titles that can't legally be accessed any other way. But while that's a significant annoyance for consumers holding onto their old hardware, current rules mean it could cause much more of a crisis for the historians and archivists trying to preserve access to those game libraries for future generations. "While it's unfortunate that people won't be able to purchase digital 3DS or Wii U games anymore, we understand the business reality that went into this decision," the Video Game History Foundation (VGHF) tweeted when the eShop shutdowns were announced a year ago. "What we don't understand is what path Nintendo expects its fans to take, should they wish to play these games in the future."

DMCA headaches

Libraries and organizations like the VGHF say their game preservation efforts are currently being hampered by the Digital Millennium Copyright Act (DMCA), which generally prevents people from making copies of any DRM-protected digital work. The US Copyright Office has issued exemptions to those rules to allow libraries and research institutions to make digital copies for archival purposes. Those organizations can even distribute archived digital copies of items like ebooks, DVDs, and even generic computer software to researchers through online access systems. But those remote-access exemptions explicitly leave out video games. That means researchers who want to access archived game collections have to travel to the physical location where that archive resides—even if the archived games themselves were never distributed on physical media.

That kind of access restriction is just "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 obtained and maintained copies of all current 3DS and Wii U eShop games, "the only way anyone could ever legally play or study [those games] is if they flew to Rochester, signed a consent form, and sat in the premises playing it," Lewin points out. VGHF Library Director Phil Salvador pointed out just how impractical that kind of on-site access requirement can be for game researchers. "Right now, if a researcher wants to study an out-of-release, 50-hour-long RPG at a library, they might have to book days or even weeks of travel, lodging, research leave, and child care," he told Ars. "Requiring researchers to access games on-site can be prohibitive. It discourages use of institutional game collections, and in turn, it discourages institutions from maintaining them. Thankfully, emulation-as-a-service technology already exists that, if permitted, could allow for secure, remote access to video game materials."

Fear of an “online arcade”

Beyond stopping consumers from purchasing digital 3DS and Wii U games, the 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 lobbying that prevents even libraries from being able to provide legal access to these games," the VGHF said. "Not providing commercial access is understandable, but preventing institutional work to preserve these titles on top of that is actively destructive to video game history." Indeed, the ESA was one of the main groups arguing against a DMCA exemption for off-site access to library game archives during wide-ranging arguments in front of The US Copyright Office in 2021. During those arguments, ESA lawyer Steve Englund expressed the industry lobbying group's concerns that the exemption, as proposed, would allow a library to "put emulated games up online for a public audience" with no meaningful access restrictions. Englund pointed to The Internet Archive's emulated game collections as an example of the kind of "online arcade" that goes beyond "research" purposes and allows for "recreational play by patrons of public libraries." That kind of wide-ranging access could cause "potential... market harm" to the ESA's copyright holders, Englund said.

Researchers at the hearing called those concerns overblown. Stanford University media curator Henry Lowood said that institutions like his were not interested in providing "unrestricted access to all" and would not "be putting anything up on the open web. This will be a closed system with authenticated users, and pretty much restricted to the researchers and students or other groups that we've mentioned earlier." But even those kind of access limitations weren't necessarily comforting to Englund and the ESA. "College students are important consumers of video games," Englund argued. "Merely saying that somebody is a student at a university who has been identified as being enrolled at the university ought to be able to access emulation is not a comforting message."

A gaming double standard

Englund argued for additional regulations to prove those remotely accessing library game archives "are actually bona fide scholars as opposed to people interested in playing games for recreational purposes." That might require some sort of restriction that limited access to students "doing a project on a particular game," for instance. But Lewin noted an important double standard there, pointing out to Ars that "the law doesn't cave to these kinds of fears with other types of media. We don't fear libraries becoming 'free online book stores' that threaten market harm, nor 'free movie theaters' that kill the movie industry." The double standard is even more frustrating, Lewin said, because generic computer software archived by libraries is not subject to the same remote-access limitations as video games. While the line between those two types of content was never made explicit in the 2021 hearings, Lewin said she likes to think the difference is "whether or not you're having fun." The current legal restrictions on remote game access are extremely damaging to game studies programs, according to University of California, Irvine professor Bo Ruberg. "You can reach out to a library, to an archive, ask for something obscure, get a copy of it, whereas for us teaching video games, it's really just completely night and day," Ruberg told the US Copyright Office. "So, we don't have access to things to study. We don't have access to things to teach, and video games, really, are just as crucial as forms of culture, as forms of art, as something like literature."

Ruberg went on to argue that the games they study in these programs "are not, primarily, contemporary big games that our undergraduates are playing for recreation. These are artistic games; historical games; small, experimental games." But Englund countered that the proposed copyright exemption wasn't limited to obscure older games and that "you've got to assume that the games that we're talking about providing access to are the most popular titles of three years ago that may be part of a franchise that has a current edition out in the market now."

The battle continues

Unfortunately for preservationists, the Copyright Office sided with the ESA and other industry groups during the 2021 rulemaking process. Researchers who want to legally access professionally archived game collections still have to travel to wherever those collections are physically stored. In a statement to Ars Technica, the ESA argued that its position on this matter doesn't mean the group is against game preservation in general. "ESA and its member companies have long been committed to the preservation of video games and support efforts by cultural institutions to build physical video game collections," the group said. But that preservation needs to be accomplished "without jeopardizing video game companies’ rights under copyright law," the ESA continued. The 2021 proposal allowing for off-site game access could have "allow[ed] nearly unlimited offsite (online) preservation activities that could undermine copyright protections and the market for older video games," the group said.

Lewin told Ars that kind of legalistic parsing over "acceptable" preservation efforts "does nothing to address our complaint, which is that there is no reasonable, legal path for the preservation of digital-born video games." That's especially true now that libraries and archives are becoming the only legal repositories for hundreds of delisted digital games, including those on the 3DS and Wii U. "Limiting library access only to physical games might have worked 20 years ago, but we no longer live in a world where all games are sold on physical media, and we haven't for a long time," Lewin told Ars. Still Lewin holds out hope that ESA members and the US Copyright Office might come around on this issue. She notes that the ESA originally argued against a proposed DMCA exemption to allow libraries to break online-activation DRM for "abandoned" single-player games. But after the Copyright Office granted that exemption in 2015, the ESA dropped its objection to the now-extant exception during subsequent rulemaking processes. That change suggests to Lewin that "the ESA seems to agree with us that institutions can be trusted to use these exemptions responsibly. We encourage them to work with institutions on reasonable expansions rather than continuing to fight them. The preservation of video game history benefits us all, including ESA's clientele." Archivists and industry groups will have another opportunity to argue over this issue next year, when the Copyright Office undertakes yet another review of its DMCA exemptions.