Latest EFF DMCA Exemption Requests Include The Right to Tinker With and Maintain Unsupported Video Games

from the game-not-over dept

As we’ve noted more than a few times, we live in an era where the products you think you own can be disabled, crippled or held hostage on a whim. That’s been particularly apparent when it comes to video game consoles and software, with an increasing array of titles relying on server connectivity not only for multi-player content, but also for DRM authentication in order to play single player titles. The former was an issue earlier this year when Nintendo announced that the company would be killing online functionality for a wide variety of Wii and DS titles, some of which were only a year or two old. The latter was an issue with Blizzard’s Diablo 3, EA’s latest incarnation of SimCity, and a growing number of other games.

When these servers for older titles get shut down, often gaming communities are left trying to cobble together functionality with little to no support from the companies that made them, and/or with concern they’d be violating section 1201. In their latest list of six DMCA exemption requests, the Electronic Frontier Foundation includes the right to tinker with older games. Not just for the enjoyment of keeping these gaming communities afloat, argues the EFF, but because as games become an increasingly integral part of our culture as entertainment and art, they need to be preserved for historians. That’s obviously something you can no longer do if the games are utterly unusable:

“The inability to play older games (because the necessary servers have been shut down) inhibits scholarship and research as well ? it is much more difficult for game scholars to access older works due to a lack of playable archival copies, and archivists have less incentive to preserve games that are unplayable or only partially playable. Jerome McDonough, a professor who specializes in digital preservation, put it simply. ?Digital media are inherently fragile and the ability to migrate games to new hardware/media is critical to any preservation activity we might take, whether through migration or emulation. [The] DMCA?s technological protection measure language takes the difficult case of software preservation and transforms it into a fundamentally impossible case.” In the case of multi-player games, it can be impossible for scholars to replicate the experience of playing the game, since player communities often die when servers are deactivated.

As the petition notes, the exemption would not apply to persistent online worlds and MMORPGs, where online functionality is all there is. Among the EFF’s five other DMCA exemption requests includes two governing the right to bypass automobile DRM for repair and testing, two protecting the remixing of DVD and various online video sources, as well as the renewal and expansion of cell phone and tablet unlocking exemptions. As usual, the EFF expresses justifiable disdain at having to jump through “burdensome and confusing” hoops every three years simply to defend common sense under the dysfunctional mess that is the U.S. Copyright Office’s DMCA exemption request process.

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Comments on “Latest EFF DMCA Exemption Requests Include The Right to Tinker With and Maintain Unsupported Video Games”

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Ninja (profile) says:

Reminds me of some game remakes I’ve seen such as Streets of Rage, Sonic with new levels and many others where the derivative adds much more fun to the titles. Surely Sonic is running to date and there are sequels that replicate the old 2D scrolling but do we really think expanding an old game with crappy graphics will damage the new attempts? If anything the only ones that actually damage the reputation of franchises are the companies in charge themselves by doing half-assed jobs just to milk money from nostalgic gamers. If anything, replaying the old titles expanded actually made me look for new stuff in the genre.

Anonymous Coward says:

Re: Re:

but do we really think expanding an old game with crappy graphics will damage the new attempts?

If gamers cannot play old games, they will have to buy new games. DRM is becoming just another way to enforce obsolescence, and allowing its bypass hurts sales of new games, or so the industry thinks. Also, when no games can be played on an old console because their are no DRM servers left, Gamers will have to buy a new console.

PaulT (profile) says:

Re: Re: Re:

Yep, that’s pretty much it. Can’t play your old copy of game X? Oh look, you can buy another copy for an new console to replace the one you already own, no discounts. Don’t own that console? Buy it. Want a new level? Buy the game again, or buy DLC that costs the same as you paid for the original. Want something that’s not currently deemed profitable by a major corporation for a current platform? Sorry, that gets erased from history.

Anonymous Coward says:

I think we need to revise the law/bill system.
As it stands, people try to put all of their wishes into a single bill which usually results in bickering over specific things parties don’t like. All it takes is a major party disliking one thing or wanting one other thing in an otherwise good bill for it to fail.
Congress will argue back and forth between parties over some trivial thing or the bill will go nowhere because of a partisan issue.
Or some unscrupulous type will try to slip something unfavorable in to try and sneak it through.
The whole thing needs to be revised.
I think we should be passing basic frameworks that by themselves do nothing, but with the addition of single instances would they really work. Then people could argue about the merits of the single instance rather than the mess of everything we have now.

Anonymous Coward says:

This should be an exception for any content. In fact, there should be “renewal” periods every 5 years for copyrighted content. If the authors don’t renew their license by paying a “reasonable” fee (doesn’t have to be big, but enough to deter people from renewing works they have no use for anymore), then the works become public.

So if you make a youtube video of something, and after 5 years you don’t pay $100 to renew it, then it should enter the public domain. If you write a book, and after 20 years it stops selling well, and you can’t be bothered to renew it, it should enter public domain as well. then we won’t have to deal with 100 year bullshit copyright terms.

Mason Wheeler (profile) says:

Re: Re: Re:

Not really. To look at the code, you need to have the code available. Software is very unique from a copyright perspective in this aspect.

If you read a book, you have everything that makes up the book right there in front of you. You can study it and analyze it if you want, and learn from the literary techniques used by the author. Same thing with a song. There are entire university courses on analyzing writing and songwriting/composing techniques, and they use actual existing writing and music… because they can.

But with software, what you see is not what the author created. The author created source code, which is a set of instructions to a compiler, a specialized program whose job it is to build a working program in machine code. (That’s simplifying things a bit, but to anyone who’s not into pretty deep computer science theory, that’s an accurate enough description.)

The difference between the finished product, that game scholars can look at, and the code–the actual creative work–is as significant as the difference between a blueprint and the building built from it! And yet copyright law, unfortunately, does not acknowledge this. It behaves as if the final program is a creative work worthy of protection, and the source code doesn’t even exist. For any software that is not open-source, this means that unless you have some privileged position with the authors of the work, you have no good way to analyze it. (And yes, again, technically I’m oversimplifying things. There are tools that can “decompile” finished programs into some sort of source code. But without exception, they suck and are useless for 99% of tasks that you would actually want source code for.)

Imagine a world in which the only scholars able to analyze Hemingway’s work were those employed by Hemingway, Inc., and only those who worked for TwainCorp could explore the writings of Mark Twain, and so forth. Comparative side-by-side analysis would of course be impossible, because their literary techniques are closely held trade secrets, and you can’t go from Hemingway, Inc. to TwainCorp or vice-versa and take any copies with you.

Just imagine what the state of literature would be like in such a world. It would be… well… about as bad as software development is in our world.

By contrast, something Brandon Sanderson once said has always stuck with me. Sanderson is a bestselling fantasy author, known for (among other things) being selected to finish Robert Jordan’s epic The Wheel of TIme after Jordan died. It must have taken quite the leap of faith to put him in charge of such an ambitious project; at the time of Robert Jordan’s death, Brandon Sanderson had only three published novels to his name. But he managed to finish the series, and most fans agree he did a great job at it.

In between all that, he kept writing his own original work, cranking out book after book, including starting a massive epic of his own. Someone asked him once how he manages it all, and he said “I think the big advantage I have, that Robert Jordan never had, is that I was able to study the work of Robert Jordan.

Just imagine if software developers had that same advantage, and actually could “look at, y’know, the code.”

Yoshord says:

Re: Re: Re: Re:

Every form of creative output has parts that will never be published: the rough sketch where an artist planned the locations of the characters in a strip, the first draft of the book, the written plot summary of a game, the version of the software where the programmer had not yet inserted the visuals. When you look as a book or song or game, you have the final product. And you can look at the final product, but in all cases, if one were capable of studying the drafts, one would be able to study the method or reasoning, which is far more important than a list of techniques. Software is not alone in hiding the working drafts from the public view.

I’ve seen works-in-progress of movies, paintings, code, literature, but I’ve never seen a work-in-progress of a song. Based on my experience, I’d single out songs as the art form most difficult to study.

Michael (profile) says:

Re: Re: Re: Re:

Thank goodness it is not up to you. Some very important discoveries in history have been due to people studying things like pea pods.

I am pretty glad to see that there are people willing to waste a great deal of time looking at things that seem trivial to most of us. It means I don’t have to and you never know, they may find something important.

John Fenderson (profile) says:

Re: Re: Re:3 Re:

I digress, but this is one of my favorite debates:

“though granted there’s a lot of bad art”

Bad art is still art. (Particularly since “bad” is a subjective call). I prefer to classify art as “successful” or “unsuccessful.” The purpose of art is to cause an emotional reaction in the audience. If that is accomplished, the art is successful. An awful lot of art that most people consider “bad” is successful nonetheless, even if the reaction it causes is revulsion.

From an artist’s point of view, the worst possible reaction to their work is indifference.

John Fenderson (profile) says:

Re: Re: Re: Re:

You are clearly uninformed about the importance of games.

First, games are a form of literature (in the same way that movies are a form of literature). They have cultural relevance no different than other forms, and to say that doesn’t deserve study is to say that no form of artistic expression deserves study.

Second, game development is where a huge amount of technical advances in software comes from. The modern games of any given time period make use of and contribute to the development of, many important fields including mathematics, artificial intelligence, heuristics, statistics, and on and on and on. It’s no exaggeration to say that no other branch of the software industry has contributed as much to society and the advancement of knowledge as game development has. Does that not make it a topic worthy of serious study?

tqk (profile) says:

Re: Re:

Seriously, “game scholars”?

Now you’ve stepped in it. Heresy! Sadly, gamers are far too brainwashed, er invested, to see your point. Vast sums of time and money went into their addiction, and they’ve fought war after war amongst themselves and others in their attempts to justify the insanity of it to themselves. All of it done with pretty much religious fervor. They cannot and will not see what masochistic lengths they’ve allowed themselves to be driven to. All for fritterware – stuff that lets you fritter your life away.

Xbox vs. PSN vs. Nintendo, Angry Birds, Farmville … All massively profitable businesses, lorded over from day one by copyright maximalists, all using egregiously user unfriendly policies which grow more mercenary and restrictive every day. They’ll judge you a pariah, an apostate, an ignorant heathen barbarian, because you’ve dared to question their darling addiction. They can’t see that Sauron has hypnotized them into joining his army of Orcs. Classic religious fanaticism. They’re hooked, yet they’ll swear up and down they continue to exercise free will.

The torch and pitchfork brigade is wheeling toward your house. Run away now and they may yet let you live. A new title has been released by the powers on high, and they may yet be able to forget your transgression once they’re slobbering over their joysticks and frames per second and network latency stats.

Honey, come to bed!?!

In a minute dear. I’m just polishing my dissertation proving that RSI isn’t at all related to video gaming (grumble, mumble, kroshnit!).

Proof? #GamerGate!

John Fenderson (profile) says:

Re: Re: Re:

“Sadly, gamers are far too brainwashed, er invested, to see your point.”

There’s a tremendous difference between not seeing someone’s point and not agreeing with someone’s point. You seem to be confusing the two here.

But I just wanted to say that you should be careful with that broad brush of yours. I am not a gamer, and yet I still disagree with his point.

tqk (profile) says:

Re: Re: Re: Re:

But I just wanted to say that you should be careful with that broad brush of yours.

I don’t agree about the broad brush. I’d accept overly colorful language, guilty, but that’s mostly just to help make an interesting read.

However, the computer game industry has long been known for its outright abuse of those people who make it possible in the first place; gamers. If gamers stood back and really looked at it, they’d agree. The publishers openly resent people selling their now unwanted wares to others believing that’s obviously stealing a sale for the new release that they ought to get. Sony killed the other OS feature that many bought the thing for. Always connected DRM is ubiquitous even when technically unnecessary. They killed chip modders because that’s obviously just enabling piracy and nothing else.

I’ve no apologies. It’s a perverse industry just as quick to buy favorable laws as the MAFIAA is. They treat their loyal patrons as potential thieves at best and seem to go out of their way to piss them off in any way that suits them. They’ve a huge case of entitlement syndrome.

Yet gamers just keep on handing them their money. It’s sad when you think about it. I applaud the recent frugal bundle publishers. That’s innovative, gives gamers what they want for a price they’re happy to pay and the bundlers are happy with what they get out of it.

The big publishers, however, are just as bad as Hollywood and Disney.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

“However, the computer game industry has long been known for its outright abuse of those people who make it possible in the first place; gamers.”

I’ve no argument there, but that’s a totally different topic from the one the comment was about: whether or not games are worth academic study. I didn’t realized that you had changed subjects. Thanks for the clarification.

Anonymous Coward says:

again, and again. and again.

gamespy shut down. it affected a lot of games. this wasn’t Nintendo’s decision. It wasn’t anyone but GameSpy’s new owner’s. Games like Battlefield 1942, Neverwinter Nights, and HALO were on that list.

The lesson everyone learned was: don’t rely on third party for networking. Which is a good lesson.

I expect better from TechDirt when it comes to details like this.

Jeff Green (profile) says:

A simple new regulation

A very simple new law:

All software to be sold with either source code and rights to self maintain or a functioning security and service environment. As soon the company that provided the software ceases to provide adequate security and efficacy maintenance it becomes legal for anyone else who wishes to do so.

That should ensure that enforced obsolescence is fightable. As an extension the same idea could be applied to hardware …

John Fenderson (profile) says:

Re: A simple new regulation

Although I don’t think a new law such as you propose is a good idea for a whole bunch of reasons, copyright law could be used to accomplish the same effect. When I’ve registered for copyright on my own software, I was required to submit the source code being copyrighted, but it’s allowed to be done in in a form that obscures it enough that it can’t be easily reproduced but allows enough detail to be able to tell use it to determine if someone else’s source is a copy. The registered source is kept by the Library of Congress.

Removing the ability to submit masked source code when registering the copyright, requiring registration to get copyright protection, and making the source available to the public after the copyright protection expires would accomplish your goals.

Of course, this depends on copyright law being actually reasonable and having a reasonable duration — in my opinion, 14 + 14 is reasonable — in order to work, but it’s an example of how copyright law could have been a force for good before it ran off the rails.

Jeff Green (profile) says:

Re: Re: A simple new regulation

I would impose it via copyright law. Simply not allow enforcement of copyright unless the conditions are met.

The rule would not allow anyone to sell copyright software merely to adequately maintain software they already own. If companies wish to keep their sourcecode secret they merely have to keep maintaining it. Allowing copyright on secrets is crazy in any case, the point of copyright is to encourage the proliferation of knowledge.

For software a 14 year limit before you can fix a security threat renders the software useless. My proposal would not need any change to copyright terms and would not affect any non-functional copyright material. I do not see why anyone should be allowed to sell anything while refusing to allow its new owners to repair it if it breaks.

Anonymous Anonymous Coward says:

Re: Re: A simple new regulation

Just curious John, what is your argument for 14 + 14 rather than say 7 + 7?

I thought I understood that most value (aka profit) is gone after about 5 years or so. But I have been wrong before, and probably will be again.

My argument is for 0 + 0 because I believe that copyright is unnecessary, even if the creation is created to make money rather than to contribute to society/culture or to satisfy the creators need to create.

Copyright has followed the ‘give an inch, take a mile’ rule for far too long, and in my view it can only be corrected by elimination. No amount of tweaking will fix it, not under our adversarial (2 party bipartisan in word not deed) system.

John Fenderson (profile) says:

Re: Re: Re: A simple new regulation

“Just curious John, what is your argument for 14 + 14 rather than say 7 + 7?”

I don’t have an argument for a specific time period. I go with 14+14 purely because that’s what it was before copyright law went wrong, and that anything longer than that seems excessive to me.

I disagree that copyright is not useful in the general sense. I think there is a legitimate role for the notion. However, I do think that copyright law as it exists now is worse than having no copyright whatsoever.

Anonymous Coward says:

Re: Re: Re:2 A simple new regulation

14+14, as contained in the 1790 Copyright Act, has at times been attributed to Thomas Jefferson and an alleged statement by him that such a time frame seemed fair given then existing lifespans. While copyright terms did extend over time to 28+28, it was not until the US finally gave in to the international community by acceding to the Berne Convention that the truly long terms now seen became a part of US law. Accession was not a decision that was easily made (took almost 100 years) because despite some obvious pros there were also many cons. Ultimately, parity for US authors with foreign authors carried the day, and even then the move to an international norm was grudgingly made (witness the continued requirement for many years that copyright notices were mandatory lest copyright be lost).

JMT says:

Re: Re: Re:2 A simple new regulation

” I think there is a legitimate role for the notion. However, I do think that copyright law as it exists now is worse than having no copyright whatsoever.”

This can’t be stated often enough. The concept of copyright is good and has the potential to be beneficial to society as a whole, but the current form of copyright is practically a polar opposite of that, great for a few in the short term but terrible for most people and the future of culture.

Anonymous Coward says:

I am surprised that Congress has never addressed the issue of using a firewall to keep software from “phoning home”, as it were. If you know what the IP address range is, you can block it, and prevent software from “calling home”

Back in the 1990s when I had a housekeeper that would bring her kids with her, because she could not afford child care, I used to have CyberSitter on my computer to keep them from accessing porn sites on the net. I used to use CyberSitter with a “hacked” serial number back in the day, because credit card transactions were not as secure on the net as they are now.

I used to use a firewall to keep CyberSitter from sending the phony registration info back to Solid Oak, and I never hard anything from them in the years, back in the 1990s, that I did this. I had merely told my firewall, back in the day, to block all access to the particular Solid Oak machine that kept track of this, and never heard anything from them.

I was surprised that when they tried to pass SOPA, there was nothing in the bill to address this.

With Congress trying to tackle copyright reform, I would not be surprised if there were an item to address this in the bill that does ultimately come out some day.

I would not be surprised if there is an item in TPP about this, when it is competed.

John Fenderson (profile) says:

Re: Re:

“If you know what the IP address range is, you can block it, and prevent software from “calling home””

If you’re using a reasonable firewall, you can do better than this: you can block all communications from specific pieces of software no matter what IP addresses the software is trying to contact.

This is how I configure my firewalls (both on my desktop and portable devices including my phone). Nobody gets to engage in outbound communication unless I have specifically allowed it.

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