Intellectual Property and the Preservation of Digital Works

In light of October being American Archives Month, I wanted to take this opportunity to consider how intellectual property impacts the preservation of digital works. While it’s tempting to assume that the software publisher or electronic text author will take every measure to secure that work’s existence, the history of media demonstrates that this is not the case. Unlike early cinema, music, and other culturally-driven works that have been deemed worthy of preservation and restoration efforts, those works relying on computational technologies have thus far been overlooked. One of the forms that has gained some attention of late is that of computer games.

Atart display at The Strong. Photo by author.In recent years, the preservation of computer games has developed into an academic priority. Museums such as The Strong in Rochester, NY posses growing stores of material pertaining to video game culture. At this summer's Computers and Writing conference (conveniently held in Rochester), I shared a project that Dr. Avery Edenfield, archivist Brad Houston, and I had been working on during the past year. For this project, which continues to seek methods for documenting and preserving the individual experience of video game play, Dr. Edenfield and I discussed ways to examine the player communities that had been eliminated from most academic accounts of video game history.

Like any good project, it has spun off into numerous tangential questions, many of which are much larger than the concerns tackled by our initial inquiry:

1. While we act upon computer games through the platform, controllers, and peripherals, we participate in the game's culture through its paratexts: the tchotchkes at the bottom of our cereal box or the manuals adorned with Cliff Spohn's artwork. These artifacts hurl us headlong into the throes of nostalgia but speak to the consumption of the game ecology rather than the participation in the game’s community. Consider those walkthroughs and tutorials that enabled you to overcome that obstacle. What about the forums that were vital to sharing that Mario+Seamus fan-fic you worked tirelessly on? These cultural goldmines, where the significance of these works are reified, are never stable and always at the mercy of server ownership and industrial priorities.

Younglings at the arcade. Photo by author.This effort has also stoked industrial interests as well. While there is little profit except for cultural capital to be gained from these projects, it is this form of capital that is increasing in value. The incorporation of the gameplay-streaming service Twitch into Amazon Prime stokes this concern: if these services become the privileged method of capturing and sharing experience, what will become of those comparable services that offer the same information without concern for profit?

2. Our research focused on preserving the experience of the game was because of obstacles presented to game archivists by the publishers themselves. If our intention was to preserve experience, how could we capture those that are no longer available? Emulation is an often deployed remedy to this but, especially for those affiliated with public institutions, this presents multiple problems.

One of the questions that came up (I’m looking at you Dan Cox!) was why emulation is a less-optimal alternative than interacting with the original software on the platform intended for it. Although emulators are legally distributed products in the United States, the games played on these emulators are not. On their corporate page, Nintendo’s description of this concern is clear and carefully crafted:

The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers.”

This statement represents one of the greater concerns I have as someone who is developing a deep concern for the preservation not just of games but in software at large. Should the “threat” of emulation gain truck in the United States, we could lose one of the few means available to accessing some of the earliest works of the information age. In response to this threat, projects such as Pathfinders, an effort being conducted by the Electronic Literature Organization, are striving to capture the experience through video documentation. Another aspect of Pathfinders, however, is to develop "prototypes of new digital tools for preserving, analyzing, and making accessible digital resources," an endeavor that could be suspect to a perspective similar to Nintendo's.

Many of these works rely upon machines that are hard if not impossible to come by. Software-based platforms such as Flash are increasingly being disowned from supporting publishers, endangering thousands of provocative, experimental, and creative works. Emulation is crucial to the project of accessing these texts and taking steps to preserving them. If emulation is targeted by litigation, it will become more difficult for these archiving projects to continue – particularly by those publicly-funded universities in the U.S. that are taking them on.

Excavated copy of E.T. on display at The Strong museum of Play. Photo by author.Considering the latest interest in reviving nostalgia-laden titles such as Nintendo’s Tecmo Super Bowl and Atari’s E.T. The Extra Terrestrial (whose literal disinterment curtailed a long standing myth among enthusiasts), it’s clear where the corporate interest resides. There is no small measure of irony in Nintendo’s use of emulation technology to sell older titles as part of their Virtual Machine catalog. But we should also be mindful of those works that represent the first trepidatious yet bold forays into to an encroaching information age.


Since I was name-checked, I certainly I have to respond. And my response, put into a few words, is this: emulation is both savior and curse of much of what you are discussing, Kris. As both a developer of Flash projects and as part of projects to archive game experience around them, I cannot stress enough how vital your work and that of groups like The Strong are. We must archive games, experiences, para-texts, and associated narratives before they are lost to us. As I personally stressed at a conference just this past weekend, many early game developers are dying off and I know, as part of discussions colleagues and I have had around trying to preserve the history of board games specifically, this is often a hard, grueling task of trying to figure out where influences started and who invented which part of what.

Added into the confluence of an already complex task of archiving is the exact issue you raise: emulation. The larger issues of digital preservation come into effect at this point as common concerns other media face around access and presentation play a role. How can people get to the object once it becomes part of the archive? And, fast on those heels, and sometimes just as important, should people get access? At the same time, does the way an object is preserved help in working toward these existing issues? Emulation, on the surface, then, would seem to serve many of these: it certainly allows for access and presentation of a game once archived. However, and you have covered this in detail across this essay and in other places, is an emulation game still the “game?” Is it the same experience?

On this, I am unsure. If I play Asteroids in a browser, is it the same as playing the game on the Atari 2600? If I play it on a MAME suite or machine, is that the same game? Part of these problems, I think, can connect into the conversations that happened as much of our collective literature became digital: is reading a copy of a copy of The Iliad the same as one of any number of copies, translations, and physical performances of it made over hundreds of years? On the one hand, I’d say, yes, they are not the same but, on the same point, it does not matter. You can still read it. Others can still experience it. But, to move back to video games, is this the same conversation? If a screen does not have the same latency, the same internal configuration, is it the same? Which part takes priority in the archive process: the hardware or the software? Or is it some combination of both?

In looking at these concerns and even the future of several of these coming problems, I’m also reminded of the number of “retro” games that have been re-packaged, upgraded, and “made HD” over the last few years. If there is a conversation to be had on how emulation influences the gaming process, the additional concerns of marketing factors have to become a part of it. If major companies are willing to put a game + integrated emulator as part of a “now in HD!” marketing push, we have to consider the product in the same archiving process.

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