Who Owns the Past? Video Games and the Preservation Problem

The founder of the Video Game History Foundation said something recently that should probably embarrass the entire industry: piracy is still the most reliable method we have for preserving games. Not archives. Not publishers. Not governments. Pirates.

Sit with that for a moment.

There’s a version of this conversation that gets immediately derailed into a debate about intellectual property and whether stealing is wrong, and that version is boring and misses the point. The more interesting question is: why, decades into the digital era, have we collectively failed to build anything better?

Part of the answer is technical. Games are genuinely hard to preserve. A film is, at its core, a sequence of images and audio. The format is stable. A game is a piece of software that was written to run on specific hardware, often in ways the original developers barely understood themselves. There’s a famous story about the Crash Bandicoot team getting a PlayStation dev kit with documentation entirely in Japanese, then just deleting chunks of memory and stress-testing until they figured out what was safe to break. You can’t easily emulate that. You have to reverse-engineer not just the hardware but the creative improvisation layered on top of it. The people working on emulation projects are doing genuinely difficult technical work, mostly for free, mostly in legal grey areas.

But the technical difficulty is only half the story. The other half is that publishers actively make this harder. The DMCA’s anti-circumvention provisions exist, and the exemptions that would allow preservation work keep getting blocked or watered down by industry lobbying. There’s a real pattern here: companies that have no current commercial interest in a title will still fight to prevent anyone else from preserving it. The instinct to control the IP outlasts any actual intention to use it.

Meanwhile, the absurdity compounds. There is currently no legal way to buy and play the original Pokémon games. Not a single one. The cartridge batteries are dying. The saves are corrupting. Nintendo has moved on. If you want to play Red or Blue or Crystal today, your options are: find a cartridge that still works, buy a 3DS that still has the games on it, or download a ROM from somewhere that technically shouldn’t exist. That’s it. A generation of people grew up with those games and can’t legally access them. For a franchise that is still enormously profitable and culturally relevant. It is, as someone in the comments put it, a kind of institutional contempt dressed up as business logic.

The comparison with film is instructive. If you want to watch a modern classic from twenty years ago, there’s usually a path. Streaming, digital rental, a Blu-ray from JB Hi-Fi. Imperfect, but functional. For games, once a console generation turns over, titles just vanish unless they’re popular enough to be worth an expensive port. Shadow of the Colossus came out in 2005. Sony remade it in 2018 and then effectively sat on the licence. You can stream it through PlayStation Plus if you have a subscription. That’s your option. Not own it. Stream it. Through a service that can be discontinued.

I’ve been thinking about this partly because I still have a box of old games somewhere in the spare room. Some PS1 discs that I genuinely don’t know the condition of. A few cartridges. I have no idea if any of them still work. I haven’t had hardware to play them on for years. In a sane world there would be a legal, accessible, reasonably priced way to play those games on current hardware. Instead, the most reliable path runs through communities that technically operate outside the law.

The copyright framework we’re working with wasn’t designed for this. It was built for a world of physical goods that degrade predictably and a market that could generally keep things available. Digital goods are different. They can be preserved perfectly or lost completely. There’s no middle ground of “a bit faded but still watchable.” And the current legal structure gives publishers both the exclusive right to distribute and no obligation to actually do so. That combination produces exactly what we’re seeing: a growing gap between what exists and what’s accessible.

One proposal floating around makes sense to me, at least as a starting point: if a work is not available to the public in an archival format within some reasonable window, the copyright holder loses the exclusive right to restrict preservation efforts. Not the whole copyright. Just the ability to prevent others from keeping the thing alive. You want to maintain full control? Then keep the work available. Seems fair. Probably won’t happen any time soon, because the lobbying money flows in one direction and always has.

The people doing the actual preservation work know all this. They’re archiving not because it’s legally comfortable but because someone has to. The Video Game History Foundation estimates that the vast majority of classic games are already at critical risk. We’ve already lost things. The question is how much more we’re willing to shrug at.

I don’t have a tidy answer. Copyright law is a genuine mess, the politics are captured by incumbent interests, and the technical challenges are real. What I do know is that “piracy is the best option we have” is not a stable or acceptable equilibrium for an art form that’s now fifty years old and culturally significant. We can do better than this. We just haven’t decided to yet.