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Understanding this year's biggest video game copyright ruling

We explore the significance of a recent ruling by the US Copyright Office that grants some exemptions to the stringent copyright protection of games.

Chris Baker, Blogger

November 13, 2015

8 Min Read

Last month, the US Copyright Office released a ruling that loosened up some of the stringent copyright restrictions on video games. The ruling relates to circumventing online authentication and the jailbreaking of game of devices, and some are suggesting that it's a sea change in game copyright law. 

It isn't. We spoke to several people involved in the push for copyright exemptions to get more perspective on what the decision means... and what it doesn’t mean. In a nutshell, this ruling offers a new exemption for players who are unable to access legally purchased games, and gives more leeway to archivists at non-profit institutions seeking to preserve games and educate the public about game history.

The process of seeking copyright exemptions

Every three years, individuals and organizations are able to submit comments to the US Copyright Office and the Library of Congress explaining why they believe exemptions should be granted to the sweeping Digital Millennium Copyright Act. “It’s an administrative process, but it’s sort of structured like a lawsuit,” says Mitch Stoltz of the Electronic Frontier Foundation. 

The EFF is outspoken in its opposition to the DMCA. “It’s a badly written law that bans the circumvention of access controls on copyrighted works, even for a purpose that’s legal,” says Stoltz. The EFF submitted a lengthy comment advocating game-related exemptions that included supporting statements from several modders and game archivists. (Meanwhile, the Entertainment Software Association and several game publishers spoke out in favor of maintaining the DMCA as is.)

What exemptions were sought

In their filing, the EFF noted that online authentication requirements can prevent people from playing legally purchased copies of a game when servers are no longer supported. For instance, Madden ‘09’s servers were deactivated just 18 months after its release, and over 150 games were taken offline in 2014 alone. Circumventing these authentication requirements was not allowed by the DMCA.

“When companies drop support for a server, the community around that game disappears,” says Henry Lowood, a Stanford library curator who maintains film and media archives for the university. He filed a statement in support of the EFF’s comment.

“There are a lot of things that institutions would like to do that we can't,” he says. “We might have a historical version of Madden with multiplayer features that a researcher wants to study, or that an instructor wants to show to students. You wouldn’t even be able to set up access to that in a library under the DMCA.”

EFF's comment pressed for DMCA exemptions that would allow purchasers of legal copies of games to bypass server authentication, and even set up their own private servers for multiplayer games. (Think online matchmaking, not more ambitious projects like relaunching persistent online worlds.) The comment also sought permission to jailbreak game devices in order to access legally purchased games.

“Console manufacturers hate the idea of jailbreaking consoles, especially Sony with the geohot case,” says Stoltz. “The copyright office had previously bought that argument that there’s no legit reason to jailbreak a game console.”

Of course, the elephant in the room is that jailbreaking consoles and circumventing game authentication is commonplace nowadays. People are doing it all the time for purposes of entertainment, research, education, and art projects. But anyone worried about the legal (and ethical) questions surrounding this has had to refrain from doing so. This was particularly true for museums and libraries.

"Most cultural repositories do try to follow the letter of the law," says Lowood. "Institutions have a public role to play in doing the right thing. Institutions are also big fish--if they do something, you can see it from far away."

This essentially means that groups seeking to preserve game history, who would seem to have the most legitimate claim to circumventing these copyright restrictions, are the ones that are most hamstrung by them. Even the preservation of derivative works can represent a minefield. "Works of machinima, for the most part, have been violations of copyright on several levels," says Lowood. "That has not been a huge problem in terms of lawsuits, but it's not a very comfortable situation to be in. There could be a knock at your door, you're dealing with a certain level of nervousness."

The work of game preservation was a primary focus of the EFFs comment. In a supporting statement submitted by Alex Handy on behalf of the Museum of Art and Digital Entertainment, Handy argued that, “efforts to preserve and revive defunct videogames by bypassing server checks or using new servers should be seen as endeavours of love and devotion by fans, not as works of infringement.”

In an interview, Handy noted that it seemed absurd that DMCA exemptions have been granted to let people tinker with their automobiles, but people weren’t allowed to jailbreak consoles that they had purchased. “I don’t know what the difference between car and console is, except that you can actually kill people with a car,” he says. “The console is yours. You own it. You can put it in a wood chipper if you want. Why can’t you break it open?”

Jason Scott of the Internet Archive submitted a statement noting that online authentication could interfere with projects like Internet Arcade, a web-based library of games. "In order to continue to preserve and archive these games as they start to rely on authentication servers, we will need to deactivate the server authentication mechanisms," he wrote. "Although we have not done this so far, it will become more important to do so in the near future."

The verdict for players

The decision released last month by the Librarian of the Congress granted a DMCA exemption to players, finding that “the record supported granting an exemption for video games that require communication with an authentication server to allow gameplay when the requisite server is taken offline.”

"This means that anyone can modify a game to bypass an authenticity check or 'phone home' system that prevents the game from running," says Stoltz.

But that's where the Librarian of Congress drew the line for average players. The decision does not allow a general exemption for online multiplayer play, and notes that “the exemption for gamers should not extend to jailbreaking of console software because such jailbreaking is strongly associated with video game piracy”

The verdict for game preservationists

The Librarian of Congress went a bit further for libraries, archives and museums that serve the public and assist researchers in non-commercial manner. The decision notes that “because the risk of piracy is much lower in a preservationist setting than with respect to gamers at large, the Register [recommends] that preservationists have the ability to circumvent [technological protection measures] controlling access to video game console software when necessary to maintain a console game in playable form.”

"We could in theory use this decision to preserve a game like Konami's P.T."

“I read that to mean that we can do anything short of a running an MMO,” says Handy. (The MADE is actually reviving a long-defunct MMO Habitat, but they're doing so with explicitly permission of the MMO's maker, so that's not effected by this DMCA decision.) “We could conceivably take jailbroken content, pull the game off it, and lock it away and vouchsafe it. We could in theory use this to preserve a game like P.T.

Lowood is waiting to see further analysis of the decision before taking advantage of it, and believes that most institutions will do the same "I don’t think that they will have developers ready and waiting to make changes to software," he says. "But if player could do necessary mods of a software, could they then give a copy to an institution? I don't think that would violate the spirit of the exemption. Archiving has been dominated by what comes out of the player community. The player community is how emulation happened. I think that actual modifications that institutions undertake will be based on what players do."


Players have been granted DMCA exemptions to bypass online authentication, and archivists have some additional freedoms to jailbreak devices and run unofficial servers. But this is not the epic win that the EFF had hoped for. "They’re drawing a lot of distinctions that we felt shouldn’t have been drawn," says Stoltz. "Distinctions between museums and the public, distinctions between single and multiplayer. There's no reason to draw that distinction except to throw a bone to ESA, who opposed us entirely on this."

We asked several people if the decision could be considered a "half a loaf" partial victory. The consensus was that this was more like bread crust than half a loaf, but--to stretch the metaphor past the breaking point--that bread crust was highly significant because it came from a source that had previously evinced a profound loathing for all things gluten-related.

"I am happy at least some small amount of reason is in place, although it was a ridiculous amount of effort to even get that logical amount of exemption for researchers and libraries," Jason Scott tells us.

Stoltz says the real advantage of these DMCA exemptions is that they will make the EFF's case even stronger when they plead for more exemptions again in three years time: "They’ve given this permission to libraries, museums and archives; those institutions will take advantage of that as part of preservation work, and -- the sky won’t fall. The copyright office will see that sky won’t fall. The more that we show that breaking digital locks for legitimate purposes doesn’t harm anyone, the more it will be allowed."

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