How The DMCA And Anti-Piracy Measures Conspire To Keep Video Games In Their Cultural Place

from the that-belongs-in-a-museum dept

For those of us that think certain intellectual property laws have become overbearing and overly burdensome, one of the fun little exercises is to try and figure out where the best battlegrounds are for the fight against them. For instance, if you think cable television has become expensive, unfriendly, and overtly insane, you want to pay special attention to how professional sports are broadcasted now and in the future. If you want to find ground to battle expanded trademark protections and the crazy ways some companies interpret their rights, perhaps the alcohol and beer industry is a good place to draw a line in the proverbial sand. And for copyright? Well, there has always been a ton of focus on music and movies, but we may be seeing the world of video games emerge as the best ground from which to push back against the restrictions of antiquated copyright in the digital age.

Recently, we covered the spiderweb of nonsense one company had to go through just to try to publish a decade-old game, an attempt that was ultimately given up because the web proved to be too convoluted to navigate. Now, a Consumerist post explains how the DMCA and game publishers have (perhaps) unwittingly conspired to keep video games from claiming their rightful place within our cultural lexicon. The focus in the post is on section 1201 of the DMCA.

Section 1201 of the DMCA prohibits consumers from circumventing copyright protection measures put in place on games or any other digital media. So even if you can figure out a fix that will make a game work offline — much like the Sim City player who discovered a work-around against the disastrous always-online requirement — it’s against the law to do so, even if you’re not otherwise violating the copyright and even if this is the only way to make an abandoned game viable again. Yes, somehow keeping it illegal to fix broken, abandoned games aids in this innovation; perhaps by forcing people to keep buying newer releases.
The piece then draws up two conflicting sides on section 1201 with regards to video games: the Entertainment Software Association on one side and the EFF on the other. The EFF has filed a request to have exemptions put in to section 1201 for gaming enthusiasts and, more importantly, for museums who would need to alter the game in order to make it in any way useful for exhibit. Take, for instance, any of the games that Electronic Arts, member of the ESA, decides to torpedo in whole or in part by shutting down game servers that support or check-in with the software. Or, perhaps more apropos, take any of the myriad of recent games that have been released as "always online," with copyright protections essentially amounting to a check in with servers not in the consumer's control. What happens when those servers are no longer worth supporting and are shut down? Well, some or all of the game becomes un-playable.

Now, let's leave aside the question of whether or not a consumer truly owns the game they buy under these scenarios. Let's also leave aside whether this kind of DRM or copyright protection is worthwhile at all. Instead, let's focus on how curators of games can handle this kind of thing in a world where DMCA section 1201 forbids the kind of tampering that would get around these restrictions. Should the ESA get its way and keep 1201 exemption-free, so-called abandoned games or abandonware becomes abandoned culture. And not, by the way, abandoned by the consumer or the public, which might include museums or academics with a strong interest in curating older games. No, the abandonment is committed by the game company itself, leaving a giant cultural hole that cannot be filled in because of a copyright law section those same companies are defending.

I've long argued that video games should be considered every bit the equivalent of movies and music. Try to find an equivalent to this problem with either music or movies, however, and you'll be at it quite a long time before you find anything meaningful. Netflix doesn't count, because you aren't buying a movie in Netflix. Same with music streaming services. The closest thing to it is probably how some e-readers can disappear books the consumer has purchased. The difference there is that the entire cultural deposit with a literary work likely isn't lost when that sort of thing happens, as it can be found and curated in other forms. That's not the case with old and classic games.

You want to find a place to take a stance against expanded copyright in favor of greater culture? That place is with games. The ESA knows this, which is why it is staunchly defending section 1201.
The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,” and send the message that “hacking… is lawful.”

In fact, as the EFF points out, “hacking” in and of itself is completely legal.

“Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software,” writes the EFF. “If ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”
And no cultural boon from games as a result. Section 1201, within the framework of gaming, can be said to be firmly anti-culture. No two ways about it.

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Filed Under: anti-circumvention, copyright, dmca, exceptions, triennial review, video games


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  • identicon
    Anonymous Coward, 17 Apr 2015 @ 2:12pm

    Built in obsolescence is the way the white goods industry keeps up sales, and DRM, particular with online requirements, provides obsolescence for games.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2015 @ 2:18pm

    Great! The "cultural place" is 13-year-old boys.

    Helping game-playing escape that narrow demographic would be a crime.

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 17 Apr 2015 @ 2:20pm

    That's fair enough

    Since the MPAA and RIAA are doing their level best to try to keep movies and music from occupying their cultural place, too.

    reply to this | link to this | view in chronology ]

  • identicon
    Shmerl, 17 Apr 2015 @ 2:21pm

    Why doesn't Netflix count? They also lock up culture (since they use DRM), and if they go down, all the content will go down with them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Apr 2015 @ 2:28pm

      Re:

      Netflix doesn’t own the overwhelming majority of what it streams.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 17 Apr 2015 @ 3:18pm

      Re:

      All the content will go down with them, except everywhere else it exists. Sure there are some things that only exist on netflix (namely netflix originals) but the fast majority of content experienced DVD releases.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Apr 2015 @ 7:20pm

      Re:

      Because:

      1) The content on Netflix isn't exclusive to their service. Even the Netflix original series/movies get released on other medium which aren't tethered to them.

      2) You're not paying for individual content, you're paying for access to a library, and the ability to view anything in that library for Netflix.

      The equivalent for the Video Game world would be buying a monthly subscription to something like Origins or Steam, and it let you play every game in their online library. And if you don't want to do that, you can go to a retailer, buy the product individually and use it without any DRM or access control. But this doesn't exist. There's a huge number of major titles out there that are sold individually on multiple platforms, and every single version is tethered to some online DRM.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 20 Apr 2015 @ 4:38am

      Re:

      "Why doesn't Netflix count? "

      They don't sell you a copy of the content you stream - 's the streaming service is a rental service. They also aren't *just* a streaming service, although that's their primary focus outside of the US.

      "They also lock up culture (since they use DRM)"

      Content you *rent*, which is not the same as content you (supposedly) *own*. There's a huge difference between those two concepts. the article is about games that people have supposedly *bought*.

      "if they go down, all the content will go down with them."

      Not true. First of all, they do sell hard copies of their content (or licence to other companies for DVD release), they just don't licence to other streaming services. Secondly, they're not even the primary source for most of the content they stream - the vast majority is licensed from elsewhere (even some of the "Netflix Originals" are actually just existing content that's been exclusively licensed).

      By your argument, all TV services are involved in "locking up content" because people can't watch it if they're not currently broadcasting it. That completely misses most of the point of what's being said here.

      reply to this | link to this | view in chronology ]

  • icon
    Sheogorath (profile), 17 Apr 2015 @ 3:22pm

    [T]he Sim City player who discovered a work-around against the disastrous always-online requirement [...]
    Really? What's the workaround? European gamers can use that on a legally purchased copy of the game.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2015 @ 3:26pm

    It's no coincidence that some of the same framers of the DMCA were also in support of banning video games, especially the violent ones. It doesn't shock me that it would indirectly let an entire medium rot.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2015 @ 3:42pm

    Support non-DRM games

    Support non-DRM games whenever possible. For example if you are interested in playing Witcher 3, Pillars of Eternity or Divinity: Original Sin then buy it on GOG. Or at least don't pay for it on Steam.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Apr 2015 @ 6:24pm

      Re: Support non-DRM games

      GOG supporter here.

      If a Game is on GOG... I buy it there even if it is a little more expensive!

      reply to this | link to this | view in chronology ]

  • identicon
    corey jacob, 17 Apr 2015 @ 8:50pm

    planned obsolescence

    is actually "forced obsolescence" when you apply the 1201 from DMCA

    The author had it right on that the gaming industry should be the battle ground.

    See the gaming industry has been dumping too many mediocre and garbage games on the market, 8-9 out of 10 are junk.

    problem is is that people like some of that junk as well as the 1 hit.
    I know I like to play games I bought 5 or more years ago. But when I do that, it means I have fewer hours to play a new title. As my collection expands less and less time is spend on new title because 9 out of 10 are junk and I don't want to spend big$$ to find out the fact they are junk to begin with, especially when I can not recover the full amount of $$ sunk into a bad game.

    Publishers DO NOT like the "true market" being the "true market" currently is defined by my user habits of preferring to replay old games I know are good vs dishing out more money when 9 out of 10 chances its another piece of junk.

    So publishers try to FORCE my habits to change by making it so, I can't play those old hits I love so much. So if I want to continue playing games I am FORCED to buy new JUNK games once the DRM KILLS my old game, by making it unplayable at the publishers WHIM.

    reality is unless every game is DRM'ed, I will always choose a format that does not have drm on a single player standalone game, that requires an online connection to release or sets a limited number of install.

    So its not actually planned obsolescence, It is FORCED OBSOLESCENCE. Because the publisher is trying to use the DMCA 1201 to force me to follow behaviors that I vehemently do not want to follow. Which is to hand over my very limited income in exchange for 9/10 times junk.

    Another behavior I do not want to follow is being forced to have an internet connection at all times just so I can play a game offline and alone, even when I don't have the money to pay for internet. Because of this, I NEVER buy PC games anymore, because of the online activation DRM and other draconian DRM that ultimately makes the game unplayable from the get-go.. Reason I don't is I have the PS4 alternative, that I do not need to be online for.

    I believe the politicians that want to revamp 1201 specifically, has also noticed what I noticed, and wants to put an end to the abuse of the DMCA as a means to FORCE obsolescence.

    Just my 2 cents

    reply to this | link to this | view in chronology ]

  • icon
    JP Jones (profile), 17 Apr 2015 @ 10:38pm

    This article is on point, and illustrates an issue I recently had while playing Grand Theft Auto V (I'm a member of the PC Gamer Master Race and never played it on consoles).

    I'd been playing for about 7 hours. I bought the game on Steam, and created a "Social Club" (what a name) account, assuming it was for my eventual online play (I know, how naïve). Some slight stuttering aside, the game plays and looks great, and I was having a blast. At this point I was playing the campaign and had not touched the online component.

    Then, mid cutscene, the game suddenly enters the loading screen and opens the Social Club window. It says my "credentials had expired." Why? It didn't like my password, and wanted me to add another character. Then, after I'd fixed it, the game started completely over. Not at my last save...from the very beginning. I was able to reload from my last autosave, but I had to completely restart my mission, including the tedious drive over.

    I was pissed. Livid, even. Not because the game crashed; a crash I could have forgiven (bugs exist). Not because I got kicked out of an online game due to server errors; I was playing alone. But because I had my game interrupted because they wanted to make sure I was still logged in. I assume if my internet ever went down I'd also lose access to the game.

    This behavior is getting more and more common, and it's completely unacceptable. I'm a paying customer. I already accepted a level of DRM by buying the game on Steam. And if I had pirated instead this issue would never have happened because I would have patched out their stupid social club.

    In other words, I paid $60 for service worse than the guys paying $0. And the game's website has this wonderfully pretentious sticky about how discussing piracy or "illegal activity" is a bannable offence and that we should keep our discussion "clean" (I have no idea how a game called Grand Theft Auto can demand its users not talk about illegal activity unironically).

    So now I face a choice. Should I illegally crack my legally purchased game so that I can keep playing it if my internet goes down (which happens occasionally) or should I suck it up and play another game if my ISP can't keep a stable connection or their servers crash?

    Why should I have to make that choice? I love watching the trolls jump at the "dirty, thieving pirates" but carefully ignore paying customers having their service disrupted to prevent someone else's potential illegal activity. Why is that acceptable?

    The really sad part? The DRM doesn't do anything. It was cracked the day of release. After holding out for a year and a half to play the version of the game I really wanted to play (PC), having it shut down mid session due to DRM that didn't even cause a hiccup to pirates feels extra crappy.

    For a game with such biting social commentary on the drug war, police brutality, the War on Terror, and massive amounts of illegal activity, Rockstar is surprisingly tone deaf when it comes to their own product. I didn't need their DRM as "incentive" to buy the game; I bought it because I wanted to support the creators. I could have pirated it easily, and would have had a better game experience by doing so.

    Here's a free tip, Rockstar: focus on your customers, not pirates. It's the people willing to pay you that you should be crafting your user experience for. Forget about the pirates; imaginary money lost is not worth the actual money spent on DRM.

    Give it a shot. If nobody buys your game I'll personally pay for your development costs. But you and I both know my money is staying right where it is.

    reply to this | link to this | view in chronology ]

  • icon
    PT (profile), 18 Apr 2015 @ 12:01pm

    Fundamental copyright principles

    The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,”

    Oh really. Last time I looked, copyright was an agreement between the author and the public that in exchange for a period of exclusivity, the work would become available free to the public. The industry is welshing on its side of the deal by ensuring that the work will never be usable in the public domain. It seems remarkably cynical for the ESA to claim that relaxing the rules for users would be "undermining the fundamental copyright principles" when the industry itself is so blatantly violating them.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 18 Apr 2015 @ 3:24pm

    Game designers aren't in the industry for the hope of vast riches.

    They're in it for the glory, to make games and tell stories for everyone to play.

    This means they're in it for the long tail, and they're already past tired of selling out their vision for the best practices as defined by management who don't differentiate between video games and cheese-flavored processed-grain snack products.

    Games that are unconditionally playable and moddable are the ones with tails that last decades rather than months. And while the big publishing houses push for a permission-based culture and built in experation, the developers want modders to never stop adding content, rather than seeing their servers shut down after eighteen months of tepid subscription rates.

    reply to this | link to this | view in chronology ]

  • identicon
    shobug mollik, 21 Apr 2015 @ 2:33am

    Video Games

    Get your digital games and digital codes such as Itune gift cards, Xbox live memberships, Playstation Network cards, Steam cards, and much more online when you shop at Red Dot with instant email delivery

    reply to this | link to this | view in chronology ]


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