ESA Comes Out Against Allowing Museums To Curate Online Video Games For Posterity

from the disappear-that-art dept

A week or so back, we discussed the Museum of Art and Digital Entertainment (MADE) calling on the Copyright Office to extend exemptions to anti-circumvention in the DMCA to organizations looking to curate and preserve online games. Any reading of stories covering this idea needs to be grounded in the understanding that the Librarian of Congress has already extended these same exemptions to video games that are not online multiplayer games. Games of this sort are art, after all, and exemptions to the anti-circumvention laws allow museums, libraries, and others to preserve and display older games that may not natively run on current technology, or those that have been largely lost in terms of physical product. MADE’s argument is that online multiplayer games are every bit the art that these single-player games are and deserve preservation as well.

Well, the Entertainment Software Association, an industry group that largely stumps for the largest gaming studios and publishers in the industry, has come out in opposition to preserving online games, arguing that such preservation is a threat to the industry.

“The proponents characterize these as ‘slight modifications’ to the existing exemption. However they are nothing of the sort. The proponents request permission to engage in forms of circumvention that will enable the complete recreation of a hosted video game-service environment and make the video game available for play by a public audience.”

“Worse yet, proponents seek permission to deputize a legion of ‘affiliates’ to assist in their activities,” ESA adds.

The proposed changes would enable and facilitate infringing use, the game companies warn. They fear that outsiders such as MADE will replicate the game servers and allow the public to play these abandoned games, something games companies would generally charge for. This could be seen as direct competition.

There is a ton of wrong in there to unpack. To start, complaining that MADE’s request would allow them to replicate the gaming experience of an online multiplayer game does nothing beyond essentially repeating what MADE is requesting. The whole idea is that these games should be preserved for posterity so that later generations can experience them, gaining an understanding of the evolution of the industry. How could this be accomplished without libraries and museums making the online game playable? And how is that different than what these folks do for non-online games? With that in mind, further complaining that museums might ask for help from others to accomplish this task doesn’t make a great deal of sense.

As for the final complaint about these museums making these games playable when gaming companies normally charge for them is nearly enough to make one’s head explode. Museums like MADE wouldn’t be preserving these games except for the fact that these games are no longer operated by the gaming studios, for a fee or otherwise. What ESA’s opposition actually says is that making older online games playable will compete in the market with its constituent studios’ new online games. To that, there seems to be a simple solution: the game companies should keep these older online games viable themselves, then. After all, if a decade-old MMORPG can still compete with newer releases, then clearly there is money in keeping that older game up and running. Notably, game publishers aren’t doing that. Were ESA’s concerns valid, they surely would, unless they hate money, which they do not.

What’s ultimately missing from ESA’s opposition is what exactly is different about these online games compared with non-online games that already have these anti-circumvention exemptions. The closest it gets is complaining that preserving these online games would require server content that game companies haven’t made public in the past. Why exemptions for that should be different than the code for localized games so that emulators can run them is a question never answered. That ESA chose not to offer up a more substantive answer to that question is telling.

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Comments on “ESA Comes Out Against Allowing Museums To Curate Online Video Games For Posterity”

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Anonymous Coward says:

Keeping old games viable

What ESA’s opposition actually says is that making older online games playable will compete in the market with its constituent studios’ new online games. To that, there seems to be a simple solution: the game companies should keep these older online games viable themselves, then.

Why? They were granted a monopoly "To promote the Progress of Science and useful Arts", not to promote nostalgia. Unless there’s good evidence a 100-year copyright is necessary for the gaming industry, this stuff doesn’t even belong under copyright anymore, and we shouldn’t be humoring the companies by negotiating minor exceptions.

The gaming museums of the future will have plaques thanking the Midwest Pirates Guild et al. for preserving the beginnings of this culture. Assuming they exist in the physical world and not just online.

christenson says:

Not liking money....

Notably, game publishers aren’t doing that. Were ESA’s concerns valid, they surely would, unless they hate money, which they do not.

I think the problem is that they have enough money…now the control freak has come out and taken over. The fear has taken over…what if the world were different, our old game was actually *better* than the shlock we push now?

orbitalinsertion (profile) says:

Re: Not liking money....

People busy playing ancient games (or those from last release cycle) might be too busy to add to the numbers for newer releases, regardless as to how much money a company could make from continuing to host the older games. Besides, corporations don’t want anyone to be thinking about how they can’t seem to continue hosting games at maybe slightly lower total profit (even if the margin is still way high), while a museum or someone can manage to host a game at a cost.

John85851 (profile) says:

Re: Re: Re: Not liking money....

I think you found the correct reason.

Sure, companies can make money with the older version of the game, but they can make even more money with the newer version which includes microtransactions and loot boxes.
“You mean I can play World of Warcraft and find the Wind Frost Gem armor without having to pay $19.99 for it?”

PaulT (profile) says:

“What ESA’s opposition actually says is that making older online games playable will compete in the market with its constituent studios’ new online games.”

Which has not been a problem when they’ve been competing with older offline videogames for decades. It doesn’t matter what shenanigans they pull with the newer Sim City games, for example, I can still play Sim City 2000 and new players can buy and download it from GoG any time they want.

As usual, rather than trying to restrict the rights of everybody else so that they can sell whatever steaming pile they’re currently trying to sell, they’d be better placed working out why some people would choose the stick with the older product.

This is, I think, especially true with MMORPGs and other online-only games. Companies have (or should have) learned on fundamental levels how to improve these games and make them better experiences for players. There are basic design decisions that completely changes game experiences that can be improved as developers learn the best way to do things. Or, you can design your game to be a grindy bore that demands microtransactions to get half of the game available to you.

f the latter is what you did and the players simply prefer the better experience, that’s the free market telling you what they think, and that’s not something that changes because you blocked the older competition.

Valkor says:

Re: Re:

This is really complicated.

On the one hand, the free market is already driving the game market. If a developer designs a “grindy bore” sequel and shutters the original to herd users along, that developer will end up with two defunct games instead of one.

On the other hand, the communities are driving the game market too. Listen to players complain about everything that is wrong with their games. People hate loot boxes, but people buy loot boxes. People hate gear treadmills, but people love chasing the next shiny thing. People hate repetition, but demand replayability. People demand sandbox freedom at the same time as safety from gankers. Obsessive gamers demand rewards for their dedication and casual gamers demand accessibility to all levels of gear and content. Devs bend themselves into pretzels trying to maximize the number of people they can make happy. Abandoning a game to its own entropy makes almost no one happy.

On the gripping hand,
if you take out the MMO and only leave the RPG, you have a hollow shell of a game in a genre that is defined by having a user community. The plotlines are notoriously thin. The time investment is huge and aimed at spending a long time doing anything worth doing. Trading and markets? Grouping, dungeons, and raids? Guilds and clans? Chat channels? If that’s all gone, you’re left in a post-apocalyptic wasteland. The animals are still roaming about, but the people you care about are all gone…

Anon E Mouse says:

Technically, ESA kind of has a point

This change would be a threat to certain parts of the industry. Some publishers like to release practically the same game each year, changing little more than the year or sequel number in the title. Herding players to the next release happens by taking down the online services of the previous release. So yes, letting museums and others to set up online services for these old releases would have a significant impact on these companies’ profits.
Not taking any sides on the moral questions here, just saying this is a thing that happens.

Ninja (profile) says:

Re: Technically, ESA kind of has a point

If the old game still has an appeal why not keep smaller servers online for the dedicate fanbase? No updates, just the game to be played. And once it’s not remotely profitable anymore they just give all the thing so it can be preserved for posterity. They would have a point if they weren’t leaving money on the table. If it’s enough to cannibalize your new offerings than keep the old alive or let others do while getting part of the profits.

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