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.

Filed Under: copyright, dmca, exemptions, freedom to tinker, librarian of congress, triennial review, video games
Companies: eff

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  1. icon
    Mason Wheeler (profile), 5 Nov 2014 @ 11:30am

    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."

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