I 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.