The Abandonware Conundrum: Can you modify games if publisher shuts down the server?

By Beth Hutchens
April 20, 2015

Computer GamingI think it’s fair to presume that whenever we see the Electronic Frontier Foundation (“EFF”) squaring off with a major trade association (the Entertainment Software Association or “ESA” in this case), things are bound to get interesting. This time, the issue is the question of whether there should be an exemption to the DMCA’s anti-circumvention provision for certain audiovisual works, namely video games.

For those of you who may not be aware, the Digital Millennium Copyright Act is a copyright law in the United States that governs digital technology and Internet-based issues. Perhaps the most well-known aspect of it is the safe harbor exemptions it provides for Internet Service Providers (“ISPs”). However, there is an equally important part known as the anti-circumvention exemption. Very briefly, this provision (17 USC § 1201) prohibits making or selling devices or services that are used to circumvent embedded technology that is used to prevent unauthorized access to a work. This technology is also known as a technological protection measure or “TPM”. Jailbreaking is an example of an activity that circumvents TPMs. The EFF is proposing an exemption from liability under Sec. 1201 if a person circumvents a certain class of video game’s TPM.

Before we start accusing the EFF of picking a fight or the ESA of enacting some wacky new restriction, please note that this issue didn’t just pop up out of the blue. The exemption rules are revised every three years, so let’s not make this something it isn’t. Both sides are zealously advocating their positions because that’s what they’re supposed to do. There are several different classes of exemptions proposed for this round of rulemaking, and we don’t have the time to get into all of them. What we’re focusing on today is Proposed Class 23 – entitled Abandoned Software- Video Games Requiring Server Communication. This type of software is also known as ‘abandonware’. Abandonware refers to software that is ignored by its owner and no longer has any kind of product support. It’s a complex topic, but the Wiki on it is actually pretty good. Long story short, the EFF’s argument is that there should be an exemption under the DMCA for individuals who circumvent TPMs specifically for the purpose of continuing to play and or use “abandoned” games. The ESA’s response is “no way” because, you know, piracy.

Bear with me, here, I’m going to geek out for a minute. For those of you who don’t play video games, or haven’t since the Atari 2600 came out, gaming has come a long way since that little round guy ran around eating dots and being chased by ghosts. Games can still be played single player (e.g., you are playing alone and offline) but now you can also play online with other players. For example, I am a big fan of the game Diablo III, as are my friends in California. If I woke up one day and felt the need to go slay hordes of demons, I could go it alone with just me and the computer via single player mode. But if I wanted some help or wanted to slay said demons with a group of people, I could see if my friends were online and play with them. So despite the fact that they are hundreds of miles away, we can still play together as though we were in the same room. Pretty cool, right?

Playing online means I can also share my weapons and other items with my friends, and vice versa, which can make for a more skilled character and, arguably, a more robust gaming experience. Many games, to some extent, operate in a similar manner.  Playing as a single player doesn’t require anything but a game console and a TV. But playing online requires an Internet connection and usually some flavor of authenticated communication with a server hosted by the game manufacturer. After a time, however, the host server for a game will cease to function if, for example, the game dwindles in popularity and the company takes it down or the company goes out of business. That game is now referred to as abandonware, meaning it is still playable, but you can’t play it online and doesn’t have any kind of product support (patches, bug fixes, that kind of thing). Make sense?

So let’s discuss what the EFF and the ESA are talking about and why everybody’s hair seems to be on fire over this. Let’s get the easy part out of the way first. Abandonment, as a legal concept, is not a thing in copyright law so I am a bit uncomfortable with throwing that term around. I will, however, pick my battles when it comes to the semantics on this one so long as we’re very clear that, from a legal standpoint, abandonment is a more of a trademark concept and does not apply here in any way, shape, or form. A copyrighted work does not lose its protection if the owner doesn’t use it and the copyright in a game remains with the owner regardless of what the owner does with it or the server. No amount of neglect will change that. Ever. “Abandonware” does not equal “public domain” and never will, OK? Now let’s get back to the bigger issue.

The EFF wants an exemption for people who want to modify their purchased games in order to bypass access controls when a publisher shuts down the server. Specifically, the EFF would like for any piece of software with server-based functions that are shut down by a publisher or developer to be considered “abandoned” six months later. This means that someone who owns a copy of a game that no longer has an online play component would be able to modify the game to eliminate authentication checks or access controls in the game itself so they can still play online using a third party server. This may also include reverse engineering and making intermediate copies of the game, which goes well beyond the skill set of the casual user.

The reasoning behind the proposed exemption is the theory that a user should be able to continue to enjoy the game they paid for and should be able to modify the game as needed to accomplish this. The gamer, they argue, shouldn’t be punished or hindered simply because the manufacturer has checked out. The EFF also argues that banning circumvention activities presents a serious problem for archives, museums, and researchers who study video games as a cultural and historical medium. The ESA, it argues, is standing in the way of preserving video game heritage by characterizing this type of activity as hacking.

The ESA, on the other hand, points out that this type of circumvention would enable users to avoid paying for a variety of online services, including network-based multiplayer gameplay and will enable infringers to play pirated copies of video games. It also says that such an exception to Sec.1201 will send a message that hacking (and by extension piracy) is lawful. “If the proposed exemption is granted”, the ESA says, “organizations or individuals—perhaps some well-intentioned, but others not—likely would try to use the guise of “preservation” or “research” to make copyrighted works available for free to the public to play online purely for entertainment purposes, regardless of whether they ever purchased a lawful copy of the video game.” They believe this “preservation” defense would make it difficult for copyright owners to enforce their rights against circumvention for infringing uses. Basically, even if these types of modifications allow people to continue to play the games they paid for, it would “undermine the fundamental copyright principles on which our copyright laws are based”. The ESA also believes that permitting this would obliterate the market for reboots, remakes, and relaunches of older games and seriously undermine the copyright owner’s monetary interest in their property.

It’s difficult to come up with an analogy that’s directly on point, but that’s not going to stop me from trying, so here goes: Think of a roller skating rink that opens up and lots of people are excited to skate there. The rink sells skates and also gives people the option of purchasing a membership to skate at the rink as often as they like. Some people just buy skates and are content to skate alone while others buy skates and a membership so they can skate with other people. Imagine that, over time, the popularity of the rink starts to dwindle. No one buys skates anymore (either because they are no longer being sold or they simply aren’t that fun anymore) and no new skaters are coming in. There may be some die hard skaters that still go, but it becomes kind of a waste of time, money, and space for the rink’s owner to keep the doors open for those few people. So the roller rink closes down. The doors are shuttered and locked and, while the people get to keep their skates, they can’t use them at the rink anymore. Where you land on the EFF / ESA issue will depend on where you land on the use of the skates. Is the skater deprived of the substantial benefit of her purchase of the skates now that the rink is closed, or does she still have the benefit of her purchase since she can still skate to her heart’s content, even though she can’t do it at the rink?

The EFF would say that since there is no place for our skater to go be with other skaters, she is being deprived complete enjoyment of her skates. That, in addition to the fact that the owner has vacated the premises, means that she should be able to break the lock on the door and enjoy the rink at her own free will. And so should all of her fellow skating enthusiasts. The ESA, in response, would point out that skating with others was never implicit in the purchase of the skates and she can still skate, just not at the rink. Besides, it’s the owner’s rink- he can do what he want with it and just because he’s not using it now doesn’t mean he won’t be later. Moreover, letting the skater break the lock will invite a cadre of rapscallions who aren’t so much interested in skating, but want to use the rink for other nefarious purposes, steal everything that’s not nailed down, and make it easier for others to do the same.

This is a polarizing issue that has people dividing themselves into the “Game companies are acting like a dog in a manger” and “game enthusiasts are entitled brats” camps. I think we can do better than that. Make no mistake, what the EFF is requesting is quite broad, but also understand that the ESA is kind of overstating the piracy and damage to the industry argument. Will some folks use the exemption as an excuse to pirate software? I’m quite certain of it, but is the number really that high? And is such a broad exemption overreaching? Most definitely, but surely there must be some way to narrow it down.

I submit that, as problem solving intelligent mammals, we can come up with something workable. Let’s put our heads together and see what we can come up with, shall we? Let’s start with something we can all likely agree on: There should be an exemption for those wishing to bypass TPM for the purpose of study, preservation, and archiving games. Can we also agree that not everybody who wants to modify their game or game system does so with illicit purposes? On the other side, if there is an infringing use, how can we help game owners successfully combat it and how can we help them protect their property? And what about the abandonment concept? Six months is rather short, but how about some sort of revocable compulsory license after, say, 10 years? I dunno- I’m just spit-balling here and Magic 8 Ball is busy playing Mortal Kombat X.

Your turn.

The Author

Beth Hutchens

Beth Hutchens is a contributing author on IPWatchdog.com. Beth’s recurring, feature column typically focuses on Internet, trademark, copyright and/or privacy issues. She brings her unique perspective and witty writing style to subject matter that could otherwise be dry. Her insights, along with a “take no prisoners” attitude, work to provide a fun, entertaining and always informative column.

When not writing she is an attorney based in Seattle, Washington. can be reached at beth.hutchens@gmail.com.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 18 Comments comments.

  1. Anon April 20, 2015 9:29 am

    My biggest problem with any type of anti-circumvention mechanism is the de facto control and elimination of even Fair Use ability.

    It is one thing to target “pirates” and another thing altogether to eliminate the otherwise Fair Use that is available to all copyrighted materials.

    That lawmakers have seemingly been captured by certain monied interests and allow criminalization of what is otherwise a valid exception to the copyright laws is troubling to me. I cannot say for a fact that such capture has been illicitly obtained, but whether illicit or not, such capture is certainly a perception if not a fait accompli.

    I do “get” the conundrum of modern digital copying being every bit [pun intended] as high quality as the original, and that if left open to Fair Use, that there would be no effective stopping of duplication of such things digital.

    But to me that is a business problem – and one that should not overpower the traditional Fair Use norms. So while mindful of the complexity and various stances, I would still hold fast to not allowing the locking up in the first instance ANY action that any other copyrighted work is subject to.

  2. SadPanda April 20, 2015 11:58 am

    With all due respect, you have a faulty assumption in your article.

    Your article assumes that you can use the roller skates without the roller skate park.

    The issue is, and one of the main reasons EFF is pushing this, is that it’s not just the on-line component. Quite often nowdays it’s also the OFFLINE (or single player) component that doesn’t work unless the game authenticates itself. That’s in addition to online play.

    So, a more accurate version of your analogy would be if the skate park sold you the skates, and put a lock on the wheels that only they had the key to. You could only use the skates if you came by and got them to unlock them for your use, to make sure nobody else was using the skates, just you.

    Then they close up, and melt all the keys. Now you have a pair of skates that you can only put on a shelf and look at, since the lock on the wheels no longer has a key to open it.

    That’s the main issue, to me, that this exemption is trying to address. Third-Party online play is a very minor part of it, not the main purpose.

  3. Beth Hutchens April 20, 2015 12:08 pm

    Anon- You make a fair point. Sec. 1201 doesn’t prohibit anti-circumvention for the purpose of copying because (at least in theory) fair use would come in to play in some circumstances. This may be why we haven’t seen a ton of lawsuits based on that section. Is fair use a concern? You bet, and I think that’s why the discussion of education, preservation, archiving, etc needs to happen. A blanket “you may never ever ever circumvent” would certainly have a chilling effect on legitimate purposes, especially in situations where the choice is to circumvent or lose the game forever.

    I’m inclined to agree with you on the “locking up” concept, which is why I suggest some sort of compulsory license could help in those instances, but ESA makes a fair point that there could be a negative effect on the market for reboots, relaunches, and other uses of copyrighted material as well as the flurry of infringement that is certain to happen when a third party is given carte blanche to take over hosting.

    Perhaps the danger lies in an “all or nothing” approach both sides seem to be taking. Surely there must be some happy medium (hyuk hyuk) between always allowed and never permitted?

  4. Beth Hutchens April 20, 2015 12:13 pm

    SadPanda- That was the presumption I was going off of- that a person can still play they game when the online play component is no longer an option. I think your analogy would be on point some of the time, but not always, which adds another wrinkle to our problem. Maybe we’re getting at something though. To the extent that a game can still be played offline, does out analysis change, or do we need to carve out some sort of sliding scale based on the definition of “playability”?

  5. SadPanda April 20, 2015 1:07 pm

    At a very minimum, if the game includes both an online and offline component, the company should be required to provide a patch to unlock the offline mode should it require authentication, or the consumer should be allowed to circumvent that authorization requirement if the publisher turns off the servers.

    This shouldn’t be for video games only either. Another situation where this happens is with movies. For example, NFL.COM had a service where you could purchase movies of old games. At some point, they decided to switch their service to a different service, and shut down the authentication servers. All the people who had paid for those videos could no longer watch them, and NFL wanted them to pay for them all over again on the new service.

    If the publishers/providers are allowed to turn off servers, and the consumer can no longer legally use the game/video/e-book, etc then there needs to be a way to address the balance of power that is legal.

    For online play, I would agree it becomes somewhat murkier. But I think we could all agree that if you’ve paid for a game/movie/book and the publisher has the right to arbitrarily revoke it, that something needs to be done to address that issue, and it needs to be legal.

  6. Curious April 20, 2015 1:20 pm

    Perhaps the danger lies in an “all or nothing” approach both sides seem to be taking. Surely there must be some happy medium (hyuk hyuk) between always allowed and never permitted?
    I think if a publisher abandoned a game for 6 months that’s the tradeoff — they have 6 months to cure the problem. No matter what type of software you license, if you license your client-server “system” and fail to provide the server part of the system for a substantial period of time, then you’ve defaulted on your obligations under the license. The licensee should have the ability, after a certain period of time, to find another entity to provide the server-sider component … even if the includes circumventing whatever controls that were originally put on the software to prevent that.

    This provision only kicks in after the software has been abandoned so ESA doesn’t have much of a leg to stand on. I don’t have much pity for someone who got paid (i.e., the licensor) but didn’t fulfill their obligations.

    The ESA also believes that permitting this would obliterate the market for reboots, remakes, and relaunches of older games and seriously undermine the copyright owner’s monetary interest in their property.
    There is a difference between finding someone to provide what the licensor was already obligated to provide and creating new content based upon the copyrighted material.

    Actually, the more I think of it, this speaks directly to the planned obsolescence of certain software products (I’m looking at you Quicken). You buy a piece of software that has a server-side interaction component to it, and after a few years the company announces that the server-side portion of your SOFTWARE PRODUCT 2011 is not going to be supported but they’ll give you a discounted price on SOFTWARE PRODUCT 2015 that includes a few minor bells and whistles but is otherwise identical to SOFTWARE PRODUCT 2011 (which was otherwise identical to SOFTWARE PRODUCT 2008). This is a business practice I really don’t appreciate.

  7. Anon April 20, 2015 1:51 pm

    I do not think the skating analogy captures the Fair Use aspects.

    Many of the details of the analogy MAY fall to the contract terms involved. The Fair Use aspects present the case where NO such contract might be involved, and the public has certain rights of use that cannot be denied – no matter what type of contract is involved (be it called “sale” or “lease” or “license” or whatever).

    For the holders of the digital goods to make it a problem for anyone the fact that their product is digital – and then turn around and claim that what they say is based on the principles of copyright (while fully denying the “inconvenient” principles of Fair Use), is simply not credible.

    Bottom line is that I care less (if at all) as to the preservation of their business model, and care about those aspects that are indeed a fundamental part – and limitation – of copyright.

  8. SadPanda April 21, 2015 3:22 am

    @Curious

    Yes, it is entirely about planned obsolescence. I work for a software company. We absolutely depend on copyright. Everything I do is copyrighted every day, as soon as I type it, and we have headers in every file I create, no matter what type of code it’s in.

    We have clients still using the version of our product that we put out 10 years ago. We no longer support that product with updates, nor do we do in-house support for it. But we don’t disable it. And if they want to pay us, we’ll send out a subject matter expert to help them with modifications or extensions to it. Or they can do it themselves, as long as they don’t turn around and sell that software to someone else (our software, not the stuff they write themselves that just bolts on to our stuff).

    The big arguments are absolutely all about getting you to pay the same thing for the same product year after year (Madden NFL I’m glaring at you here). No updates to the software, no updates to the user interface, no new gameplay, just new players. You could do Madden 2015 as an update patch to Madden 2014 as an update patch to 2013.

    To me, the objection by software companies is more about the ability to re-release the game in 2-3 years as an ‘ultimate’ or ‘classic’ edition, and make you pay all over again for it, and not about piracy concerns (this is especially true on consoles).

  9. Beth Hutchens April 21, 2015 11:39 am

    SadPanda- I think you’re correct in the concern to re-release games, and the hardline position on that is “it’s their property, they can do what they want with it”. Your company has an interesting business model in providing support for older versions if a person wants to pay for those services. I like that. This, to me, smacks of my compulsory license idea where, if a company no longer has the desire or ability to host a game, if someone else wants to, let them provided they pay for it. Perhaps a way to address the piracy concerns is to impart liability on to the third party for any infringing conduct?

    Anon- Gosh darnit, I liked my analogy! Oh well, they can’t all be winners, can they? Would you care to flesh out your fair use concerns a bit more? Does an exception for preservation, education, archiving etc. assuage your concerns?

    Curious- 6 months, in my opinion, is a bit short in terms of time. Perhaps the elephant in the room is that the skills required to modify the game or the console are beyond the casual user. So what do we do with a person who makes a business model out of hosting old games? Should there be some sort of compensation to the copyright owner? I think yes. Also, who’s responsible for quality control? It seems as though you are suggesting that once the mod becomes permissible, the copyright owner loses all interest in the property, is that correct? The problem I have with that is abandonment is not concept in copyright law so this becomes sticky where rights to exploit the work are concerned and could open up a whole new can of worms if this concept were expanded to copyright law in general.

  10. Curious April 21, 2015 11:48 am

    We have clients still using the version of our product that we put out 10 years ago. We no longer support that product with updates, nor do we do in-house support for it. But we don’t disable it. And if they want to pay us, we’ll send out a subject matter expert to help them with modifications or extensions to it.
    I’m fine with that.

    The big arguments are absolutely all about getting you to pay the same thing for the same product year after year (Madden NFL I’m glaring at you here).
    Although I don’t play it, there is new content and better gameplay, so I think they are justified in releasing new versions. However, they shouldn’t be preventing players from using the older versions (I don’t know if they do or not).

    To me, the objection by software companies is more about the ability to re-release the game in 2-3 years as an ‘ultimate’ or ‘classic’ edition, and make you pay all over again for it, and not about piracy concerns (this is especially true on consoles).
    I agree — it is all about getting the consumer to pay twice for something they already paid once for. If that is the reason, then it isn’t good enough.

  11. Curious April 21, 2015 12:03 pm

    Curious- 6 months, in my opinion, is a bit short in terms of time.
    I don’t think so — it is probably too long. If somebody is relying upon the software, then 6 months is an eternity. They end user would have already migrated to new software (from a different provider) at the end of 6 months and is very likely not looking back.

    So what do we do with a person who makes a business model out of hosting old games? Should there be some sort of compensation to the copyright owner? I think yes.
    I disagree. Once the copyright owner decided to renege on their end of the deal, they don’t have any rights to ask money from someone else to provide a service that they won’t do themselves. Now, the new host shouldn’t be able to create new derivative content based upon the current copyright. Moreover, the copyright owner can decide to re-enter the market and provide the access they once provided (and provide updates, as needed).

    It seems as though you are suggesting that once the mod becomes permissible, the copyright owner loses all interest in the property, is that correct?
    No. I made a specific distinction when I wrote “There is a difference between finding someone to provide what the licensor was already obligated to provide and creating new content based upon the copyrighted material.”

    could open up a whole new can of worms if this concept were expanded to copyright law in general.
    You are overthinking it. The way I look at it (and/or would implement it), this doctrine would simply allow a user to obtain the functionality that they originally paid for. In so doing, they have they are granted the ability to get around the anti-circumvention provisions of the DMCA. The user cannot create new content that is derived from the copyrighted content. The original software cannot be copied consistent with the terms of the license. All the other property rights associated with the copyright are maintained by the copyright holder.

  12. Anon April 21, 2015 12:35 pm

    Beth,

    Limited on time today – but suffice to say, the exception is likely to swallow the rule based on the nature of digital goods – once an exception exists, the ability to “police” replication just does not exist (in the constant battle of containment/hacking, possession of the digital goods by themselves is “game over”)

    Ouch, sorry for the pun.

  13. Anon April 21, 2015 12:38 pm

    Or, in homage to Serenity, Mr Universe says, “You can’t stop the signal, Mal.”

  14. SadPanda April 21, 2015 3:35 pm

    [i]Perhaps a way to address the piracy concerns is to impart liability on to the third party for any infringing conduct?[/i]

    The problem with this is that there is no way to know, as the third party, that the conduct is infringing (assuming you’re talking about a pirated copy of an old game/software, as opposed to offering new content, which would be wrong). The reason being that the company that has abandoned the IP has the keys to authenticate. By it’s nature, a third party [b]can’t[/b] have the keys, they have to come up with a bypass of the authentication.

    There have been people who tried to contract paying a percentage of profits to some companies to keep things live, but the companies either refused or wanted so much money there was no profit in it (indeed, it would be at a loss). Again, this goes back to wanting to re-release it later.

    I would say that infringement with regards to adding new content to someone else’s games would probably infringe. But the individual users would have to be responsible for piracy, not the third party. I would expect that ideally the third-party would have to respond to DMCA notices to disconnect the offending party, who could then issue a DMCA CounterNotice, and then the software company would have to sue the former customer (or pirate, as the case may be).

    But that’s unlikely to be anything anyone likes.

  15. SadPanda April 21, 2015 3:37 pm

    @Curious – I’ve played Madden over multiple years at friends houses. Believe me, the changes are minor, and mostly artwork and a few button changes. Most of it could be done as a patch.

  16. Dave April 22, 2015 2:04 pm

    I’m confining my comments to the gaming regime, here, because that’s what I’m most familiar with as a user. Please forgive any repetitions, especially if they include points made since comment 15.

    Any of the solutions proposed so far will impinge on the copyright holders’ rights to do what they want with their works, albeit in an attempt to balance this with the users’ rights to enjoy what they paid for, whether it be a license or a copy of the work. Requiring a host to continue hosting forces enduring expenses on the host; requiring a host to patch the client for offline play also forces expenses on the host, albeit for a short time, but also yields a crippled version of the client; compulsory licensing of the code would at least initially seem to be the best balance since, depending on the exact terms and whether access to the hosting services was free or paid, the host gains a revenue stream and the users can continue to enjoy using the client in all its glory. And then there’s the business opportunity for licensees hosting abandoned games as was mentioned earlier.

    But what if the hosting has been free, but a licensee abandoned game hoster wants to charge for access? Some hosts require a monthly fee for access in addition to charging for the client software (e.g. Blizzard for WoW), whereas some hosts do not charge for access but charge for the client (again, Blizzard but for Diablo III), and then there are those that charge neither for access nor for the client (e.g., Dungeons & Dragons Online) and rely on in-game purchases or ads to cover their costs and actually earn profits. I’d be ticked if my free-until-abandonment (God forbid) Diablo III server access suddenly cost $15/mo. Of course, I’d be pleased if my $15/mo WoW access dropped to $10/mo or lower.

    And what if the code for hosting the abandoned game services is shared, even partially, by current game services? I can’t see as Blizzard would be very happy about laying bare its code for Diablo III hosting if it were also using the code to host paid-access WoW services. Then again, SadPanda’s comments suggest that the code could be completely shared already and it’s just the encryption/authentication keys that vary from game to game. If that’s the case, then compulsory licensing could include provision of the keys for the abandoned game, protecting current games that use different keys, which appears to be what’s already happening in many cases, anyway, at least in some cases. Abandoning developer gains/retains revenue stream, gamers keep their games, business opportunity created if royalty is reasonable.

    And then there’s the license/purchase issue. Does it matter that what the user paid for might be a license to use the work rather than a purchase of the work?

    What about establishing an open source game services hosting platform and a related standard for network play/services? I know there are some platform projects out there, already.

    I liked the way Bungie did it with Marathon back in the 90s, though I don’t think requiring game companies to do this would be right. With the release of Marathon 2 (I’m pretty sure but it might have been with Marathon Infinity) they included the tools to make maps and all kinds of other stuff, and I believe they wound up publishing the source code once they were done with Marathon Infinity. At least there’s an open source continuation based on the Marathon 2 engine – see the Aleph One project at http://marathon.sourceforge.net/, which is still fun to play. Of course, IIRC, Bungie didn’t host game servers for any of the trilogy, but players who were able hosted Internet/LAN games on the same machine on which they played (long time ago, details fuzzy).

  17. PeterA May 19, 2015 12:18 am

    @Anon
    once an exception exists, the ability to “police” replication just does not exist

    This cannot be an excuse to disallow circumvention.

    People already circumvent and steal copies, changing the law will not change this fact. If you wish to protect your copyrights you are already faced with the insurmountable challenge of enforcement.

    Claiming that the impossible enforcement issue only appears after you allow a (pretty limited!) circumvention exception is a logical fallacy.

    Piracy and circumvention will always exist. Decriminalization of circumvention after abandonment (as defined above) isn’t going to have a noticeable impact on piracy rates. (note: I’m obviously not a lawyer)

  18. Shamus T. B. June 2, 2015 12:15 pm

    Unfortunately, the confusion surrounding the argument of “for” or “against” as proposed in this article is extremely confusing as well for gamers whom loyalty to their friends and community endures on regardless of the fact that a game is closed. This is because when it comes to online gaming (specifically MMORPG games), relationships are built and established between people over an expanse of years and game development companies should not be naiive to think that those relationships can suddenly be thrown out the window just because a game is not provided (publicly) anymore. After all, it is the development companies whom sought to initially provide such an atmosphere where relationships could be fostered and in my opinion, there is a certain amount of responsibility on the developer’s shoulders to cater to a community’s “transition” once the decision is made to shut everything down.

    A perfect example of this is what happened to the community of players loyal to the Disney Interactive MMORPG game, “Pirates of the Caribbean Online” (POTCO).

    A little more than half-way through the POTCO gaming experience, Disney Interactive basically left the game to die with minimal updates and no future promise of additional content. As a result, a legitimate petition was begun to where Disney executives and decision-makers were contacted prior to the final year of POTCO’s life. The voice and concern of these players totaling over 2,000 signatures petition Disney/Disney Interactive to instigate change on behalf of POTCO. The game itself (along with two other ‘popular’ MMORPG games on Disney’s roster), were shuttered approximately a year later with no formal response ever received to those players concerned specifically for POTCO’s future.

    After nearly two years later, the POTCO community has endured on but the “incredible” amount of confusion surrounding issues pertaining to abandonware, copyright, trademark, fair use, etc. is a reality for many individuals whom seek to emulate a game now which essentially became abandonware_long before the game itself was shuttered publicly.

    By having better clarity surrounding abandonware issues, in my opinion everyone would better off. As it remains now, there is “too much” room open for interpretation. This should not be! Gamers should also never be punished (as your article had mentioned) for enjoying something which truly gave them pleasure/relationships gained and then fostered online.