When you buy a video game, you expect to be able to play it for as long as you want. You expect be able to play it with your kids many years from now if you want (well, maybe not Grand Theft Auto). And you would hope that museums and media historians could preserve the games that were so important to your childhood. But unfortunately, the Digital Millennium Copyright Act’s anti-circumvention provisions (17 U.S.C. § 1201, or Section 1201) creates legal risks for players who want to keep playing after game servers shut down, and curators who want to preserve games for posterity. That’s why I’m spearheading an effort to win legal protection for game enthusiasts and preservationists who want to keep abandoned games alive by running multiplayer servers or eliminating authentication mechanisms. On Friday, EFF and I filed comments with the Copyright Office asking for a new exemption to Section 1201.
Each year, more and more video games have their servers shut down. For some of those games, such as Mario Kart Wii, players set up servers to keep communities alive. Enthusiasts regard this as a labor of love—a tribute to a game they cared about or had a special connection to, a way to keep a great game’s lights on for just a little longer. But they face legal risks, as changing a game so it doesn’t need to connect to a server that no longer exists could violate Section 1201’s ban on circumventing “technical protection measures.”
Game developers and distributors don’t run servers forever, and often shut them off when player numbers dwindle. Having player communities step in to preserve their games is a win for everyone. However, Section 1201 creates chilling effects that keep this from happening. And for games without dedicated programmers who are willing to take legal risks, communities disperse, moving on to new games or just disappearing entirely.
Section 1201 also has chilling effects on people who want to preserve or archive games, both those who are affiliated with formal institutions and those who are just enthusiasts. As digital archiving expert Henry Lowood explains, “Repositories and researchers [are forced] into the uncomfortable situation of considering unauthorized circumvention of copyright law in order to preserve or provide access to game and virtual world environments, data, and software.” Archiving and preserving playable copies is essential to future researchers, especially ones who wish to study the multiplayer components and the design of modern games. In the words of game community sociologist T.L. Taylor, “playing together is not a trivial side aspect to digital gaming and this means that scholars need to be able to emulate conditions of original use as much as possible.”
The exemption that we proposed covers games where single-player or multiplayer play is no longer possible, either because the game’s developers have shut down servers or abandoned them. (It does not cover massively multiplayer online games with persistent worlds.) Experts from the Internet Archive, Stanford University, MIT, and the Museum of Art and Digital Entertainment filed statements in support of the exemption.
We think Section 1201 is an unsound, overbroad statute that chills huge amounts of legal reverse-engineering. And it allows companies to maintain a chokehold on their works even after they give up on the communities that love them. It shouldn’t exist. But since it does, we ask the Library of Congress to grant an exemption to help enthusiasts of all types continue to play and preserve the games they lawfully own.
Kendra Albert is a law student and former EFF intern.