Last month, EFF and I scored a major victory for video game archiving, preservation and play – we got an exemption to the Digital Millennium Copyright Act for some archival activities related to video games.
Before I throw a bunch of shade, I want to emphasize that the exemption is a victory for the video game archiving community. Although there were flaws in what the Library of Congress granted, more legal leeway in this space is a net positive.
First, what the Librarian of Congress granted: an exemption for the circumvention of authentication servers in order to render games playable, so long as the game content is stored on the player’s computer or console. There’s now more legal protection for modifying a single player game where the authentication server has been deactivated for continued play or for preservation. So if and when Blizzard deactivates those Diablo III servers, players can modify their own games to continue playing.
The exemption only covers “local gameplay,” which the Librarian defines as “gameplay conducted on a personal computer or video game console, or locally connected personally computers or consoles, and not through an online service or facility.” So to benefit from the exemption, a game may be modified to allow for local multiplayer play, but not online multiplayer. It’s unclear whether setting up a matchmaking server for local LAN play would be allowed under the current exemption – the definition suggests yes, as does the Copyright Office’s explanation, but it’s not specifically spelled out.
Libraries, archives and museums (which I will collectively refer to as institutions), get more latitude. Under the exemption, they can eliminate access controls on video game consoles (often called “jailbreaking”) in order to copy and modify games to get them running again after a server shutdown.
Still, activities that were under a legal cloud before are now protected. Surely we’re all going to rest on our laurels until 2 years from now? Nope. This round of exemptions revealed how fundamentally broken and unsustainable the triennial rulemaking has become.
EFF, primarily Senior Staff Attorney Mitch Stoltz, and I spent countless hours preparing arguments for the gaming proposal, participating in hearings, and working with experts. Our proposal is one of 27 that the Librarian ruled upon, one of 7 that EFF participated in, and one of many advocated for by civil society groups. The rulemaking happens every three years, and the Librarian does not recognize any presumption that a previously-granted exemption should be renewed. Every three years, groups like EFF have to reapply for the same exemptions, marshaling up evidence and experts in order to produce a record of the potential harms. In some of the classes granted this year, the Librarian put a year-long delay on the exemption – meaning that it now only lasts two years.
As if that wasn’t enough, the scope of the proceedings keeps expanding. Because so many things contain software, the DMCA now threatens legitimate activity on everything from tractors to medical devices. The video game archiving and preservation exemption at least involved alleged harms that were ostensibly related to copyright – the same can’t be said of car hacking or pacemaker security.
As the scope expands, it becomes incredibly difficult to offer information that is both specific enough for the Register of Copyrights and broad enough to cover the variety of different lawful activities inhibited by the anti-circumvention law.
This is not made any easier by the way that the Copyright Office arbitrarily imposes burdens upon the proponents. For example,an exemption to the anti-circumvention rule, §1201(a)(1), does not exempt you from other parts of the statute, including §1201(a)(2), which prohibits trafficking in circumvention tools. As such, the groups seeking exemptions don’t devote much time discussing the anti-trafficking provision as part of the triennial process – because even a granted exemption won’t allow an owner to traffic in a circumvention tool.
However, in deciding to allow the restoration of multiplayer play under the video game exemption, the Register said that we failed to “provide persuasive support for an exemption for online multiplayer play, in large part because it is not clear on the current record how the provision of circumvention tools to multiple users to facilitate an alternative matchmaking service could be accomplished without running afoul of the anti-trafficking provision in section 1201(a)(2).” The issue of the matchmaking servers running afoul of 1201(a)(2) did not come up in any of the comments for the rulemaking. Not in the first filing, not when Copyright Office staff asked follow-up questions, not from the opposing briefs from the ESA, and not at the hearings. It was a surprise for the exemption to be denied on the basis that the proposed activity might possibly violate a legal provision that is not at issue in the rulemaking, particularly since the issue was never presented or briefed.
This puts exemption proponents in a strange position. It suggests that people seeking exemptions may have to show that the behavior contemplated by the exemption is not just non-infringing, but that it is otherwise legal. Will proponents of a medical device exemption have to brief which uses do and do not implicate FDA regulations? And vehicle tinkerers brief every law that governs the modification or use of a vehicle? What about giving the courts a chance to determine the scope of 1201(a)(2) by removing the threat of simultaneous 1201(a)(1) liability?
As one of the proponents, I can definitively say that we were able to provide far more evidence of communities that wished to restore multiplayer access to games where servers had been deactivated than of single-player shutdowns. The decision to exclude multiplayer play from the exemption cannot have been motivated by a lack of evidence that multiplayer shutdowns harm communities and consumers. The Register could find that the countervailing harms of illegal copying based upon circumvention are too great. (I would, of course, disagree.) But not granting the exemption because game enthusiasts might possibly violate a different part of the statute, without informing proponents that they bore the burden of proving non-violation of that provision, is unacceptable.
The granted exemption gives an archival institution more latitude surrounding the jailbreaking of consoles, but requires in exchange that the institution does not distribute or make available the video game outside its physical premises. It’s unclear how distributing the video game outside the premises of the institution would make it more likely that the circumvention of the access controls would result in infringement. Remember, by the time the video game access controls have been circumvented, a) the server is down, by definition and b) we assume the institution is not trafficking in the circumvention tools because that would be illegal. (Although we didn’t have to prove that no institution would violate the trafficking provision, so don’t ask me how that works.)
Second, and perhaps most importantly, how does this work in practice? Does the distribution of the game outside the physical premises of the institution make the Section 1201 violation retroactively illegal? Does the legality have to do with the intent that the institution had at the time of the potential circumvention? How do these conditions actually relate to the legal regime?
Furthermore, physical premises are not the only or even the primary medium through which institutions interact with the public. The future is not in-person attendance at museums. But now the legality of actions that museums took in the past is somehow tied to their physical premises.
The Librarian of Congress granted a number of complex and specific exemptions, applying to a small field. They clear up legal uncertainty in some ways but create it in others. And that’s why any celebration of these DMCA exemption victories must be tempered with the knowledge that the process is broken. The Register made a number of compromises on many of the exemptions, designed to find a middle ground between proponents and opponents. That eliminates much of the legal clarity that the exemptions are meant to provide. As Sarah Jeong said on Twitter, it’s like the Copyright Office forgot that the moral of the story of King Solomon and the baby is “Don’t split the baby.” Because if you split the baby, the baby dies.
Kendra Albert is a student at Harvard Law School. She was an EFF Legal Intern in summer 2014.