Fair use: the Remedy for Video Game DLC Preservation

Video game preservation (image source: https://en.wikipedia.org/wiki/Video_game_preservation)

Sony decided to end the support for Playstation Store for PSP, PS3, and Vita later this year, though Sony later reversed and leave PS3 and Vita open indefinitely.

Even the Sony revoked its commercial strategy, the series of actions did strike some video game preservationists’ nerve: where does the DLC go? Downloadable content(DLC) is an additional part of an existed video game, which is mainly distributed through the Internet by the original game’s publisher. Its distribution often relies on a certain type of distribution platform. If the platform is closed for those devices, the purchases of DLC will be no longer possible. If Sony decides to end the support for Playstation Store for several devices, the DLC distribution service is no longer being supported. Unlike the traditional game publication, the DLC does not usually have a physical form, which makes preservation difficult.

Video game preservation is a form of preservation applied to the video game industry(Wiki). The endeavor of video game preservation often falls in hands of some unofficial gamer communities, since they often possess special sentiments towards video games. The heterogeneity of publishing and preservation parties have some episodes in terms of video game preservation: the publisher often drops the obsolete product lines for profit reasons, while the gamer community wants to preserve those products for sentiment reasons. And the publisher often chooses to not release the source code even for the archived products, which makes the preservation difficult for the non-official gamer community.

Fair use is one of the possible solutions for saving DLC without infringing the game company’s copyright. Fair use is a doctrine in the United States copyright law that allows to limited use of copyrighted material without requiring permission of the right holder, such as for commentary, criticism, news reporting, research, teaching, or scholarship(Wiki). Section 107 of the Copyright Act provides the statutory framework for determining whether the usage of the copyrighted material is fair use or not. There are four factors in evaluating a question of fair use:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The endeavor of the gamer community has the nonprofit culture preservation purpose for the use of the copyrighted DLC. Even the amount of the portion being used for preservation is substantial, the quantity of the used portion will be restricted without damaging the potential market of the copyrighted work.

The archived DLC or video games are valuable for multiple reasons. The efforts the gamer community made are supposed to be recognized and respected.