The Entertainment Software Association doesn’t want anyone to restore the functionality of older videogames that are no longer supported by their publisher, because, says ESA, this is “hacking,” and all hacking is “associated with piracy.”
EFF, along with law student Kendra Albert, is asking the Copyright Office to give some legal protection to game enthusiasts, museums, and academics who preserve older video games and keep them playable. We’re asking for an exemption to the Digital Millennium Copyright Act’s anti-circumvention provisions (Section 1201) for those who modify games to keep them working after the servers they need are shut down. Many player communities, along with museums, archives, and researchers, want to keep the games they own playable after publishers shut down the servers the games depend on. Section 1201 creates legal difficulty for these communities, which is why we’ve asked the Copyright Office to give them an exemption.
Section 1201 is often used by the entertainment industries not to prevent copyright infringement but to control markets and lock out competition. So it’s not surprising that ESA (the trade association for the largest game producers), along with MPAA and RIAA, have written to the Copyright Office to oppose this exemption. They say that modifying games to connect to a new server (or to avoid contacting a server at all) after publisher support ends—letting people continue to play the games they paid for—will destroy the video game industry. They say it would “undermine the fundamental copyright principles on which our copyright laws are based.”
ESA also says that exceptions to Section 1201’s blanket ban will send a message that “hacking—an activity closely associated with piracy in the minds of the marketplace—is lawful.” Imagine the havoc that could result if people believed that “hacking” was ever legal! Of course, “hacking” is legal in most circumstances. ESA, the spokespeople for a group of software companies, knows this full well. Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software. If “hacking,” broadly defined, were actually illegal, there likely would have been no video game industry.
Behind this hyperbole, ESA (along with MPAA and RIAA) seem to be opposing anyone who bypasses game DRM for any reason, no matter how limited or important.
Games abandoned by their producers are one area where Section 1201 is seriously interfering with important, lawful activities—like continuing to play the games you already own. It’s also a serious problem for archives like the Internet Archive, museums like Oakland, California’s Museum of Art and Digital Entertainment, and researchers who study video games as a cultural and historical medium. Thanks to server shutdowns, and legal uncertainty created by Section 1201, their objects of study and preservation may be reduced to the digital equivalent of crumbling papyrus in as little as a year. That’s why an exemption from the Copyright Office is needed.