ESA argues against DMCA exemption for abandoned online games

The Entertainment Software Association (ESA) wants to derail the Museum of Art and Digital Entertainment's (MADE) efforts to preserve defunct online games.

As reported by TorrentFreak, MADE (along with several other groups) is trying to convince the U.S. Copyright Office to loosen Digital Millennium Copyright Act (DMCA) restrictions so abandoned online titles can be preserved for future generations. 

As it stands, the law prevents the public from tampering with DRM-protected content and devices, but those rules can be revised every three years, and this time online games are top of the agenda. 

There's precedent for the change as well, with the Copyright Office having already made an exemption allowing for the preservation of aging classics using techniques like emulation and jailbreaking.

That exemption doesn't cover online titles, however, and MADE wants the Copyright Office to amend the situation sooner rather than later.

"Online games have become ubiquitous and are only growing in popularity," offered MADE. "For example, an estimated fifty-three percent of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online."

The ESA, on the other hand, believes the change would be a step too far. Although the group, whose members include EA, Nintendo, Sony, Ubisoft, and Microsoft, says it "enthusiastically supports" public preservation efforts, it argues another exemption could facilitate commercial infringement. 

Indeed, using MADE as an example, the ESA points out that the museum charges people a $10 entry fee, and is in effect monetizing its library of preserved games. 

"Under the authority summarized above, public performance and display of copyrighted works to generate entrance fee revenue is a commercial use, even if undertaken by a non-profit museum," explained the ESA in its opposition, submitted to the Copyright Office earlier this week.

It also argues that further exemptions could put private server code into the hands of the public, and may even stop various studios from effectively tapping into the "retro" market by reviving older titles -- as Blizzard is doing with its 'vanilla' World of Warcraft server. 

"Like other types of valuable creative works, video games regularly are reintroduced or reimagined. In fact, there is a vibrant and growing market for 'retro' games, which game companies are motivated to serve," added the ESA. 

"In sum, expansion of the video game preservation exemption as contemplated by Class 8 is not a ‘modest’ proposal. Eliminating the important limitations that the Register provided when adopting the current exemption risks the possibility of wide-scale infringement and substantial market harm." 

It's hard to predict what the outcome will be, although one side is sure to be disappointed when the Copyright Office finally reaches a decision.