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The business, the Library of Congress, and the battle to preserve video games.
On Wednesday the Electronic Frontier Foundation published a report maintaining that the video game industry—as represented by the Entertainment Software Association—was against preserving legacy games due to hacking concerns.
The EFF is seeking an exemption from Section 1201 of the Digital Millennium Copyright Act’s anti-circumvention provisions, i.e. the portion of the DMCA that prevents users from altering media, in order to serve both consumer interests, and archival/educational purposes. The ESA believes that the exemptions sought are too broad, and that there is not enough proof the exemption would not lead to increased video game piracy, which then may be protected in some cases by the granting of the exemption.
“Such modifications may include, as necessary,” reads the comment from the EFF to the librarian of Congress, “eliminating checks to authentication servers for games where the developer or its agent has stopped operating such servers, or modifying access controls in the software that control access to multiplayer matchmaking servers so that users can switch to third-party servers when the servers authorized by the developer are no longer operating.”
“ESA is being misleading about this,” EFF attorney Mitch Stoltz told the Daily Dot via email. “There are hundreds of popular games that have stopped working entirely, or that work only in single-player mode, after the publisher shuts down game servers. We’re asking the Copyright Office to give some legal protection to people who want to modify the games they own so that they remain functional. It’s a matter of basic fairness that players be allowed to do this.”
In its comment to the librarian of Congress on the request for an exemption for Section 1201 of the DMCA, the EFF cites games that require users to connect to multiplayer servers. The EFF argues that the ability to use matchmaking for multiplayer games is part of a game’s core functionality, if that game has a multiplayer component. The EFF argues that multiplayer servers and matchmaking are core functionalities of certain video games, and therefore that owners of legally acquired copies of that software ought to be able to take steps to make sure they may continue to access those multiplayer portions of the game.
The ESA argues in its comment to the librarian of Congress that the EFF is mischaracterizing the “access controls” that would need to be altered in order to restore multiplayer functionality. “There is no such thing as specific access controls that check ‘authentication servers’ and ‘matchmaking servers’ for video games,” reads the ESA’s comment.
“To achieve EFF’s stated objectives?i.e., to eliminate authentication checks and enable the video game to be played on a video game console or other device connected to a third-party multiplayer game server?would require circumvention of a much broader array of video game and device-based access controls,” the ESA comment states. “Consequently, the proposed exemption would, in effect, eviscerate virtually all forms of access protection used to prevent video game piracy.”
The EFF’s comment lists almost 12 pages’ worth of games whose servers were shut down in 2014. As demonstration of its point regarding lack of access to games after the termination of official server support, the EFF also cites the recent closure of GameSpy, a service that provided a significant amount of multiplayer support for video games.
“In May 2014, it announced that all of its servers would be shut down,” reads the EFF comment. “Many of the shutdowns that occurred in 2014 were caused by the dissolution of this third-party service provider who operated matchmaking servers for video games under contract with the game developers. Some developers migrated to other platforms, but others, like Nintendo and EA, did not restore multiplayer support for games that had used Gamespy servers.”
The EFF also specifically sites football game Madden ‘09, which went on sale in August 2008. A year and a half later, Electronic Arts shut down multiplayer servers for the game. “Thus, a game should also be considered unsupported if multiplayer servers or gameplay are not accessible to all or nearly all players for a period of at least six months.”
The ESA rebuts that the idea of an “abandoned” game is a misnomer, citing copyright law. “Video game publishers do not intend to surrender their rights in their copyrighted video games when deciding to end server support,” reads the ESA comment. “To the contrary, because a video game publisher may invest millions of dollars developing a single video game, it is not uncommon to improve upon or re-introduce a game at a later time or to iterate upon the software after server support has ended to obtain a return on this valuable investment.”
The way video game multiplayer communities tend to dry up post-release is also a central component of the ESA’s argument as to why the exemption sought by the EFF ought not to be granted.
“EFF’s comments imply that research is adversely affected when online gaming communities die when servers are deactivated,” reads the ESA’s comment. “In the experience of ESA’s members, however, the relationship works in the reverse—after a game has been in the market for some time, there is a precipitous drop in the number of users in any given online community. Only after the online community has effectively dried up, do video game publishers decide to take the game’s video game servers offline.”
The latter point is interesting because it is likely inaccurate when applied to the class of video games whose loss would arguably, negatively affect video game preservation and research. Massively multiplayer online games cease to exist when the servers are shut down. MMOs are actually, not figuratively, dead when the servers go offline, unless players undertake substantially challenging efforts to resurrect them.
This is precisely what is taking place with the Star Wars Galaxies Emulator project. Galaxies is regarded by many MMO critics as the best game the genre has ever created, and it generated such a dedicated fan base that work on the Emulator began even before Sony Online Entertainment officially took the game offline in December 2011, as a result of a series of changes to the original game that Galaxies veterans found unacceptable.
The Emulator developers require legally purchased copies of client-side software in order for users to access the Emulator, and the developers are hand-coding by way of recreation the netcode that governed interaction between server-side and client-side software. And while the Galaxies emulator is missing broad swaths of the original game’s content, it does function as a recreation in part of the original game.
We asked Stoltz why the EFF did not seek the exemption on behalf of MMOs as well as other, cited examples of software in the comment to the Library of Congress. “Preservation of MMOs for archival and research is very important, but that’s not our focus in this year’s rulemaking,” Stoltz said. “Those are hypotheticals and we’d rather not get into hypotheticals and stick with our stated policies,” the ESA said, when the Daily Dot asked about MMO preservation.
The issue regarding multiplayer servers for some games is arguably invalid in some classes of legacy games. First-person shooters, for example often have the ability for players to directly connect their PCs or console and created a local area network. In such a case, multiplayer functionality is effectively available so long as the appropriate hardware is also available, in which case an exemption to Section 1201 is unnecessary for archival or research purposes.
Representatives from Microsoft, Nintendo, and Sony Computer Entertainment America offered statements in support of the ESA’s position, while T.L. Taylor, Associate Professor of Comparative Media Studies at the Massachusetts Institute of Technology, wrote in favor of the EFF’s argument.
DMCA exemptions are handed down by the Library of Congress triennially. The last set of exemptions were handed down in 2012.
Photo via Mike Licht/Flickr (CC BY 2.0) | Remix by Dennis Scimeca
Dennis Scimeca was the Daily Dot's gaming reporter until 2016. He loves first-person shooters, role-playing games, and massively multiplayer online games. His work has appeared in Salon, NPR, Ars Technica, Kotaku, Polygon, Gamasutra, GamesBeat, Paste, and Mic.