CCR Special 12 — The VGHF Survey of the Video Game Reissue Market in the United States

Only about 13 percent of video games published in the United States prior to 2010 remain commercially available today, according to a study published on July 10 by the Video Game History Foundation (VGHF). Phil Salvador, the VGHF’s library director, authored the landmark study, which examined 4,000 classic video games first released on the Commodore 64, Nintendo Game Boy family, and Sony PlayStation 2. Overall, Salvador concluded that legal access to historical titles was “dire” across all software ecosystems and represented a “crisis for the entire medium of video games.”

Only 4.5 Percent of C64 Games Still Available Commercially

As this is a blog dedicated primarily to the computer industry, I wanted to focus here on Salvador’s findings with respect to the Commodore 64 (C64), which at one time was the most widely used home computer platform in the United States. Salvador and his team, which included several volunteers and the assistance of the Software Preservation Network, examined the C64 as representative of an “abandoned ecosystem,” i.e., a historical game platform where there has only been minimal present-day efforts to maintain commercial viability.

Due to an overall lack of consumer interest and the liquidation of Commodore International in 1994, which scattered the company’s intellectual rights among multiple parties, Salvador noted that “few C64 games released in the United States are available today.” Indeed, out of a sample size of 400 C64 games released during the platform’s commercial lifetime (1982 to 1994), only 4.5 percent remain commercially available today. And the “vast majority” of that 4.5 percent are only made available through a single distributor, Antstream Arcade, which provides a licensed streaming service that includes C64 titles.

Just to offer my own anecdotal perspective, I’m currently reviewing a pair of December 1987Computer Chronicles episodes on computer games for upcoming blogs. A total of 13 computer games were demonstrated or discussed on these programs. As far as I know, none are commercially available today.

Looking at somewhat broader sample, one item I came across in my research was a 1987-88 Electronic Arts software catalog, which included roughly 140 products. At a cursory glance, I can identify maybe half a dozen titles that are still commercially available through online storefronts like GOG.com. And one thing to keep in mind: Not all of the titles in this catalog are games. Like many early computer game publishers, Electronic Arts diversified their offerings into productivity and business software, as the overall commercial games market was still quite small relative to today.

And even when an older game game is commercially available today, that doesn’t necessarily mean the original game. Salvador focused on the C64 as a representative platform. But many games published for the C64 were also developed for, or ported to, other computing platforms of the time, such as the Apple II, Amiga, or Atari ST. If you are looking to research the history of a game on a specific system, you may find the only commercially available copy is one made for another platform, and vice versa. For instance, most of the older games available through GOG.com are taken from the versions made for the IBM PC and compatibles (MS-DOS) as opposed to the C64.

Who Owns an Abandoned Game?

Salvador explained that one of the major hurdles to reissuing classic video games was, in many cases, sorting out who even owned the rights to a title. He cited another study that found about 20 to 30 percent of rights holders for a sample of video games could not be identified or confirmed. This means there are a lot of “orphaned works” in the video game space. And that occupies something of a legal grey-zone. Anyone who wants to commercially re-issue an orphaned work runs the risk of someone claiming to be the actual rights holder stepping forward and demanding compensation.

Tracking a “chain of ownership” for a computer game is not as simple as you might think. It’s something I’ve come across a few times. For example, I blogged back in February 2022 on Ken Uston’s Professional Blackjack, a 1982 computer game released on a number of platforms. Even after doing fairly extensive research, I could not tell you who owns the rights to this game today. The credited author, Ken Uston, is long dead. The company that published the game, originally known as Intelligent Statements and later as Screenplay, shut its doors in the late 1980s. And all I could find out from the Copyright office was that in 1988, two other companies listed the copyright to Professional Blackjack as part of a bundle of rights used as collateral to secure a business loan. And that’s where the trail ended as far I could tell.

Taking on the Piracy Fallacy

So why does any of this matter? Well as you might expect from someone who works for the Video Game History Foundation, Salvador argues that the widespread commercial unavailability of pre-2010 games “means that historically interesting games are not available for research purposes.” And current U.S. Copyright Office regulations make it unnecessarily difficult for libraries to provide access to such games even if they have them in their collection. While the Copyright Office has made it possible for libraries to provide off-premises access to other kinds of computer software, video games are limited to on-premises access only–at least if a library doesn’t want to get sued for copyright infringement.

Predictably, this has left most classic video game preservation in the hands of individuals acting outside of institutional constraints, a group referred to historically, and somewhat inaccurately, as “pirates.” As Salvador notes, the video game industry has long used the stigma of piracy to demonize emulation technology and other individual efforts to preserve games that would otherwise be lost to time completely. This remains true today even as many commercial publishers have used emulation technology when they have decided to re-issue games.

I would point out that the stigma of piracy dates back to the earliest days of the computer software industry. Computer Chronicles did an episode dedicated to the topic back in 1985. One of the guests was R.L. Smith McKeithen, then the general counsel for the game publisher Activision. McKeithen argued against the existence of utilities that could be used to make copies of original disks, even to help paying customers make backups or transfer their program to a hard disk.

McKeithen got into a somewhat heated exchange with Gary Kildall over the very notion that people who lawfully purchased software might have some legitimate need to make backup copies, or simply copy a program to their hard disk for easier access. Here was my recap of that conversation:

[Stewart] Cheifet then turned to [Mark] Pump, whose company sold a disk copying program called Locksmith, and asked if users sometimes had a legitimate need to make copies of a program. Pump said without a doubt, they did. If they used an original copy that became unusable, then they were left without a program that their business might depend on for its daily operations. Kildall added that there was also a basic need that some people had to copy a program from a floppy disk to a hard drive.

Pump then provided a demonstration of Locksmith using an Apple II with two attached disk drives. He explained it was a program that made an identical copy of the original disk. It did not “break” any copy protection on the original disk as it made a bit-for-bit copy, thereby retaining any copy protection, copyright notices, and serial numbers.

McKeithen said the problem with a product like Locksmith was that it facilitated people getting into stealing. It made it much too simple. If, in fact, a user of Activision’s products had a problem with their original disk, they could call a toll-free line or send the damaged product in for a replacement. Activision offered a 1-year warranty. He added the company received over 3,000 pieces of mail per week from users who wanted to know about upcoming products. These users had formed a bond with Activision, which the company would not ignore by not giving them good service. And all of the responsible software manufacturers followed that same trend. So McKeithen saw no need for a product like Locksmith in the event of someone having a damaged product they wanted to use.

Kildall pushed back a little, noting software providers weren’t allowing for the possibility of legitimate backups. He noted he ran into this problem himself, as there were programs he could not get onto his hard disk. McKeithen asked if Kildall had talked to the manufacturers about such problems. Kildall said sure he did, but they replied they didn’t want to give up control over distribution due to fears of illegitimate copying. McKeithen acknowledged there was a tension in the system, but the problem with a product like Locksmith and the wider-than-Activision-would-like use of illegitimate copies was that in the long range it would spoil the production of creative intellectual property for everyone. And that, he said, was a zero-sum game.

Even nearly 40 years later, the computer games industry is basically making the same arguments. The Entertainment Software Association, the modern-day lobbying arm of the computer industry, has opposed loosening the Copyright Office’s restrictions on libraries making historical and out-of-print video games available for off-premises research because of fears it will inevitably lead to more “piracy.” This ignores the fact that games piracy is already rampant thanks to the Internet. Indeed, most research into games–including my own–relies on emulation and software titles being made available outside of any institutional constraints.

Finally, I’ll reiterate that this hangup about piracy is largely a video game-specific phenomenon. Going back to the 1980s for a moment, Gary Kildall ran one of the ten largest software companies at the time and even he recognized that developers like Activision were far too zealous in labeling any form of copying or preservation as “piracy.” And the truth was that the type of disk-based copy protection that remained in heavy use by computer games publishers throughout the 1980s and 1990s largely fell out of favor with business software publishers by around 1986 or 1987. After all, if you were a business customer paying $700 for a piece of software, you wouldn’t stand for the publisher telling you not to make a copy to a backup disk or hard drive. Then again, I’m guessing that nobody ever tried to make an illegal copy of dBASE III to create databases just for fun.

Ultimately, the VGHF survey is designed to help move the needle when it comes to prompting changes in the Copyright Office’s policy. As Salvador said in a blog post accompanying the publication of his study, “What we’re asking with this report is for the game industry to acknowledge that most classic games are out of print, and that the commercial market alone can’t solve this.”

From a legal standpoint, the Copyright Office must conduct a review every three years of the various exemptions to the Digital Millennium Copyright Act (DMCA), the key federal statute that governs software copyrights. The next review is scheduled for 2024. The VGHF study will help provide further support for expanding the existing exemptions so that libraries and other established research institutions can provide more widespread access to video game and computer game software that are unlikely to ever see a commercial reissue.