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EFF and ESA butt heads over DMCA exemption for abandoned online games

Should it be legal for owners of online-enabled games abandoned by the manufacturer to modify them in order to continue playing them? The EFF says yes, but the ESA says no way -- that way lies piracy.

The Electronic Frontier Foundation and the Entertainment Software Association are butting heads over an important issue: should it be legal for owners of online-enabled games abandoned by the manufacturer to modify them, in order to continue playing them?

The EFF thinks so, which is why they filed legal paperwork with the U.S. Copyright Office late last year seeking (among other things) an exemption to the Digital Millennium Copyright Act for games "that are no longer supported by the developer, and that require communication with a server."  

The ESA disagrees, and has filed a lengthy complaint [PDF] spelling out its issues with the proposed exemption, chief among them that it "would jeopardize the availability of these copyrighted works by enabling—and indeed encouraging—the play of pirated games and the unlawful reproduction and distribution of infringing content."

This is an important issue for both game developers and the industry at large: the EFF is effectively aiming to make room for people to modify games and game consoles they own in order to support "continued play, study, and to preserve [games] in a usable state for future generations", with explicit references to circumventing authentication systems that require remote servers and modifying games to connect to third-party servers in the event that their original server infrastructure gets shut down

But the ESA takes umbrage by (among other things) claiming this exemption could make it okay, in the eyes of the government, for game owners to tinker with game console firmware in order to circumvent authentication systems -- and that's not okay by the ESA, which counts Nintendo, Sony and Microsoft among its members.

"The hacking at issue here—that is, the modification and reproduction of the video game console’s firmware, with all of its attendant consequences—is not a fair use," reads an excerpt of the ESA's complaint. "There is abundant evidence that the primary reason many users seek to hack video game consoles is not to create new and different works, but to avoid paying the customary cost of existing works or devices."

As an example, the ESA points out that modifying a game like Mario Kart Wii to be playable on third-party servers now that its official servers have been shut down would cause it to be rejected by the console's copy protection mechanisms. Thus, to play it on an actual Wii console you'd theoretically have to modify the console's firmware, and rendering that act exempt from the DMCA could encourage piracy.

The issue will be decided later this year, when the U.S. Copyright Office considers the requested exemption as part of the DMCA revision hearing it holds every three years. For more details on the arguments at play, check out the EFF's original request [PDF] and the ESA's recent comment [PDF] against it.

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