Another lobbyist win over common sense, it seems. Earlier this year, we discussed a group of video game preservationists, led by the Video Game History Foundation, seeking DMCA exemptions that would allow groups to curate, preserve, and make available for streaming antiquated video games for purposes of study. The chief opposition to the request came from the Electronic Software Association (ESA), a lobbying group that has staunchly opposed any carveouts in copyright law that would allow for these sorts of preservation and study efforts.
Now, if there was one key takeaway from that last post, it’s the following. The ESA and groups like it are very good at saying “no”, but absolutely terrible at providing any alternatives it would support for doing this sort of preservation work. The video game space is one in which the overwhelming majority of titles published have not been preserved in any meaningful way. If those titles are allowed to simply disappear into the ether, it is a flat negation of the bargain that is copyright law to begin with, which is for a limited monopoly on creative output with that output eventually going into the public domain. Disappeared content cannot enter the public domain.
Unfortunately, thanks to those lobbying efforts that offer all roadblocks and no solutions, the US Copyright Office has denied once again the request for these copyright carveouts.
“While proponents are correct that some older games will not have a reissue market, they concede there is a ‘healthy’ market for other reissued games and that the industry has been making ‘greater concerted efforts’ to reissue games,” the Register writes in her decision. “Further, while the Register appreciates that proponents have suggested broad safeguards that could deter recreational uses of video games in some cases, she believes that such requirements are not specific enough to conclude that they would prevent market harms.”
The Copyright Office went on to note that, while this carveout exists already for purely functional software, the expressive nature of video games makes them different. But that’s fairly silly. There are already carveouts to copyright law for expressive works, specifically when it comes to retaining them for preservation and study efforts. That’s essentially how, you know, libraries work. This all comes down to opening those avenues up remotely, via streaming or remote sharing purposes. Why it should be just fine for researchers to hop on a airplane to sit in a university library and study these games, but it’s suddenly verboten to do so remotely is flatly beyond me, especially if there are safeguards in place to keep from this all turning into some free-for-all remote arcade.
And then there is the additional confusion of the Copyright Office arguing that part of its concern is over the association of emulation software with piracy. In a particularly laughable bit within its decision, the Copyright Office cited as its source of this association the founder of the VGHF himself, and the citation appears to have been taken entirely out of context.
In an odd footnote, the Register also notes that emulation of classic game consoles, while not infringing in its own right, has been “historically associated with piracy,” thus “rais[ing] a potential concern” for any emulated remote access to library game catalogs. That footnote paradoxically cites Video Game History Foundation (VGHF) founder and director Frank Cifaldi’s 2016 Game Developers Conference talk on the demonization of emulation and its importance to video game preservation.
“The moment I became the Joker is when someone in charge of copyright law watched my GDC talk about how it’s wrong to associate emulation with piracy and their takeaway was ’emulation is associated with piracy,'” Cifaldi quipped in a social media post.
It’s valid to wonder aloud whether the Copyright Office has any freaking idea what in the hell it’s talking about at this point. Or whether, as at least one proponent of the carveouts quipped, the government was even taking the request all that seriously.
Lawyer Kendra Albert, who argued vociferously in favor of the proposed exemption earlier this year, wrote on social media that they were “gutted by the result… Speaking on behalf of only myself, and not any of my clients, I do believe we made the best case we could that scholarly access to video games that are not commercially available does not harm the market. I do not believe that this evidence was seriously engaged with by the Copyright Office.”
Again, silly. Researchers in other mediums, such as books and films, already have access digitally to their subjects of study in many cases. For some reason, despite its acknowledgement that video games are likewise works of expressive art, the Copyright Office has simply decided it’s to be different with gaming.
Well this is a real punch in the gut. For years, we have been talking about a strange lack of interest within the video game industry when it comes to game preservation. In far, far too many cases, both single player and multiplayer video games that rely on backend checks to start the game, or online servers on which to play them, or games being available in digital storefronts essentially disappear at the whim of game publishers’ desire to keep them available. Never mind that this can mean that games people purchased become unavailable to them. Never mind that these publishers could make their games’ source code available so that fans could keep them running. It all just goes away without recourse for the public, due to the fact that these games remain protected by copyright, despite their being unavailable to the public, thereby breaking the supposed copyright contract. It’s a massive problem if you care about the preservation of culture.
But surely when it comes to something like journalism surrounding the games industry the thinking would be different… right? Nobody is going to let decades of journalistic output just suddenly get disappeared out of nowhere… right?
Staff at the magazine, which also publishes a website, weekly podcast, and online video documentaries about game studios and developers, were all called into a meeting on Friday with parent company GameStop’s VP of HR. In it they were told the publication was closing immediately, they were all laid off, and would begin receiving severance terms. At least one staffer was in the middle of a work trip when the team was told.
The sudden closure of Game Informer means that issue number 367, the outlet’s Dragon Age: The Veilguard cover story, will be its last. The entire website has been taken offline as well.
This isn’t link rot. It’s link decapitation. Every single URL from the Game Informer website now points only to the main site URL, with the following message posted on it.
After 33 thrilling years of bringing you the latest news, reviews, and insights from the ever-evolving world of gaming, it is with a heavy heart that we announce the closure of Game Informer.
From the early days of pixelated adventures to today’s immersive virtual realms, we’ve been honored to share this incredible journey with you, our loyal readers. While our presses may stop, the passion for gaming that we’ve cultivated together will continue to live on.
Thank you for being part of our epic quest, and may your own gaming adventures never end.
Barring anyone with physical copies of the magazine, or those that created their own online scans of those magazines, or whatever you can still get out of the Internet Archive, it’s all just gone. Thousands of articles and features, millions of words of journalistic output, simply erased. Even the ExTwitter account for the publication has been disappeared, even after it was used to post the same message as on the website. What you will see if you go that link for the disappeared tweet is an outpouring of sadness from all sorts of folks, including famed voice actors, content creators like Mega Ran, and even game studios, all eulogizing the beloved magazine.
And it seems that this shut down, almost certainly at the hands of CEO Ryan Cohen, occurred without any opportunity for those who produced all of this content to take backups for archive purposes.
This comes as GameStop is experiencing two things. First, the decline of physical game sales that has cut deeply into GameStop’s business. Second, the massive infusion of cash the company has on hand as a result of the memestock fin-bro infatuation with the company’s stock. In other words, the company has a massive problem on its hands… but that problem is not immediate. There were ways to do this that didn’t result in the effacement of decades of cultural content that is, of course, all still protected under copyright law, limiting the public’s ability to mitigate any of this.
And, because cultural disasters like this tend to be sprinkled with at least a dash of irony:
A recent in-depth feature on the retro game studio Digital Eclipse about gaming’s history and preservation is one of the stories that is no longer accessible. A write-up about Game Informer’s famous game vault, containing releases from across its decades long history, is also inaccessible.
So a gaming journalism outfit failed to preserve its own features on game preservation. That would actually be funny if it weren’t so infuriating.
In a scene that’s been repeated constantly in the last decade, journalists watched helplessly as stuff they’d spent years of their life working on simply disappeared:
As a freelance reporter myself I’ve lost track of the number of websites I’ve worked for that unceremoniously deleted countless hours of work without a second thought (tech news outlet Protocol being among the most recent, though my work at Vice’s Motherboard will soon meet the same fate). Sometimes somebody can be bothered to archive the content; usually it’s left up to the authors.
It’s part of a broader disdain for journalism by those with wealth and power, and sends a very clear message: your work is so unimportant that we can’t be bothered to do the bare minimum to preserve it. It’s so unimportant, we’re not going to even spend a relative pittance to archive it. We’re not even going to give you a heads’ up so that you can archive it yourself.
Like many companies in streaming, Paramount has been looking for a merger partner after its strategy of making worse and worse content at a higher and higher price point apparently stopped paying dividends. Streaming growth has slowed, so most of these companies have taken a cue from traditional cable and have started focusing intently on nickel-and-diming users and large, pointless mergers.
The AT&T–>Time Warner–>Discovery merger highlighted very clearly how modern media industry brunchlords care primarily about three things: the impossibility of unlimited growth, tax cuts, and massive compensation incommensurate with any sort of actual competence. There were no shortage of loved products (like Mad Magazine) and projects that were pointlessly dismantled by the AT&T saga.
The assumption is that stuff like the Internet Archive will just magically come in and preserve our collective history in the wake of executive apathy. But that’s simply not the case; as archivists are facing their own constant array of existential challenges in an era of increasingly unchecked corporate power, a corrupt and dysfunctional Congress, and unlimited narcissistic manbaby multi-billionaires.
Not that MTV News was dismantling structures of corrupted power all that often, but this deterioration of journalistic history more broadly tends to primarily serve corporate power, and the kinds of folks who’d very much like it if future generations didn’t learn much from the history of lived experience and past policy debates.
The disdain for journalistic history is happening at the same time we’re steadily replacing real journalism and insight with badly automated “AI” ad engagement simulacrum, which not only supplants actual expertise, but redirects limited resources away from real reporting. Collectively the trajectory (which really is part of a U.S. media continuum stretching back to the 80s) couldn’t be any uglier… or any more clear.
In all of the posts we have done on the topic of video game preservation, I have often made the point that it’s probably long past time that there be some sort of political action to address the real or potential disappearance of cultural output that is occurring. The way this works far too often is that a publisher releases a game that is either an entirely online game, or an offline game that requires backend server calls or connections to make it work. People by those games. Then, some time down the road, the publisher decides supporting the game is no longer profitable and shuts the servers down on its end, disappearing the purchased game either completely, or else limiting what was previously available. Those that bought or subscribed to the game are left with no options.
Well, one YouTube channel is attempting to generate some political action to combat all of this, using Ubisoft’s The Crew game as its muse for doing so.
Ross Scott, who runs Accursed Farms, posted a 31-minute video on the channel, which outlines the problem and how he believes drawing attention to The Crew’s April 1 shutdown could cause governments to enact greater consumer protections for people who purchase online games. As laid out in the video, consumer rights for these situations vary in different countries. France, however, has some pretty robust consumer laws, and Ubisoft is based there.
“This isn’t really about The Crew or even Ubisoft,” Scott says in the video. “It’s about trying to find a weak link in the industry so governments can examine this practice to stop publishers from destroying our games.”
You can watch the entire video for yourself below.
With The Crew, millions of copies of the game were played around the world. When Ubisoft delisted the game late last year, the game became unplayable. On top of that, because of copyright law, it would be illegal for fans to keep the game alive themselves by running their own servers, even assuming they had the source code necessary to do so. So fans of the game who still want to play it are stuck.
In addition to the videos, Scott has also spun up the Stop Killing Games website and campaign. There, Scott is attempting to do what many would say is impossible: get the gaming public to take collective action around the world. By promoting not just awareness of the culture-killing aspect of all of this, but also providing information and quick links as to how people can take political action tailored to their country’s laws, the idea is that the gaming community make enough noise so as to no longer let our representatives ignore the problem.
The Stop Killing Games’ end goal is that governments will implement legislation to ensure the following:
Games sold must be left in a functional state
Games sold must require no further connection to the publisher or affiliated parties to function
The above also applies to games that have sold microtransactions to customers
The above cannot be superseded by end user license agreements
I’d love to hear an argument from someone as to how any of this is unreasonable. It’s as good a method for combatting the “you don’t own what you’ve bought” trend in video games as I’ve come across. Essentially, publishers can’t architect games in such a way so as they can be ripped away from buyers when the publisher or developer is tired of supporting them and wants to move on to something else. The only thing I’d add, so as to not make all this too arduous for publishers, is that fans should be granted code access and rights to run their own servers in the event the publisher no longer wants to. Scott’s plan instead calls for online games to be architected so that they must be run on fan-servers.
Regardless of the route this ends up going, the point is that games, otherwise known as cultural output, cannot simply be yoinked out of the universe at the pleasure of the publisher.
“If we win, can you imagine how good it will feel in the future knowing all your games are safe and you only have to think about whether you like the game or not,” Scott says. “That’s my vision of gaming for the future. It’s a little different than the industry’s. And if we lose, we’ll at least get told straight to our faces that, in a democracy, you can never own video games that you pay for, no matter how many people want that to happen. I guess this will be a civics lesson.”
If game preservation is something you care about, go check out the video and website. Even if you don’t care about video games specifically, you might still consider advocating for cultural preservation via the site anyway. After all, there is nothing that says the antics of the gaming industry won’t be replicated to other forms of media in the future.
Although copyright is mainly thought of as concerning books, music and films, it applies to other kinds of creativity in a fixed form. That includes apparently trivial material such as early commercial television programs. These are important cultural artefacts, but unlike books, music or films, there are very few formal schemes for collecting and conserving them. This has led to members of the public undertaking the preservation of TV programs on an ad hoc, unofficial basis. It’s great that they are doing so, but the informal nature of their collections means that they are exposed to serious threats from copyright, as the recent experience of The Museum of Classic Chicago Television makes clear. The Museum explains why it exists:
The Museum of Classic Chicago Television (FuzzyMemoriesTV) is constantly searching out vintage material on old videotapes saved in basements or attics, or sold at flea markets, garage sales, estate sales and everywhere in between. Some of it would be completely lost to history if it were not for our efforts. The local TV stations have, for the most part, regrettably done a poor job at preserving their history. Tapes were very expensive 25-30 years ago and there also was a lack of vision on the importance of preserving this material back then. If the material does not exist on a studio master tape, what is to be done? Do we simply disregard the thousands of off-air recordings that still exist holding precious “lost” material? We believe this would be a tragic mistake.
Dozens of TV professionals and private individuals have donated to the museum their personal copies of old TV programmes made in the 1970s and 1980s, many of which include rare and otherwise unavailable TV advertisements that were shown as part of the broadcasts. In addition to the main Museum of Classic Chicago Television site, there is also a YouTube channel with videos. However, as TorrentFreak recounts, the entire channel was under threat because of copyright takedown requests:
In a series of emails starting Friday and continuing over the weekend, [the museum’s president and lead curator] Klein began by explaining his team’s predicament, one that TorrentFreak has heard time and again over the past few years. Acting on behalf of a copyright owner, in this case Sony, India-based anti-piracy company Markscan hit the MCCTv channel with a flurry of copyright claims. If these cannot be resolved, the entire project may disappear.
One issue is that Klein was unable to contact Markscan to resolve the problem directly. He is quoted by TorrentFreak as saying: “I just need to reach a live human being to try to resolve this without copyright strikes. I am willing to remove the material manually to get the strikes reversed.”
Once the copyright enforcement machine is engaged, it can be hard to stop. As Walled Culture the book (free digital versions available) recounts, there are effectively no penalties for unreasonable or even outright false claims. The playing field is tipped entirely in the favour of the copyright world, and anyone that is targeted using one of the takedown mechanisms is unlikely to be able to do much to contest them, unless they have good lawyers and deep pockets. Fortunately, in this case, an Ars Technica article on the issue reported that:
Sony’s copyright office emailed Klein after this article was published, saying it would “inform MarkScan to request retractions for the notices issued in response to the 27 full-length episode postings of Bewitched” in exchange for “assurances from you that you or the Fuzzy Memories TV Channel will not post or re-post any infringing versions from Bewitched or other content owned or distributed by SPE [Sony Pictures Entertainment] companies.”
That “concession” by Sony highlights the main problem here: the fact that a group of public-spirited individuals trying to preserve unique digital artefacts must live with the constant threat of copyright companies taking action against them. Moreover, there is also the likelihood that some of their holdings will have to be deleted as a result of those legal threats, despite the material’s possible cultural value or the fact that it is the only surviving copy. No one wins in this situation, but the purity of copyright must be preserved at all costs, it seems.
I don’t think this is a surprise to anyone, but the SEC and the CFTC combined to issue fines on a bunch of Wall Street firms for execs communicating across encrypted messaging in a manner that wasn’t recorded and preserved as required. Being in a regulated industry means having to deal with all sorts of compliance requirements, that includes preservation of communications. But, of course, that freaks people out, so… they do what everyone does, and figure out ways to communicate outside of “official” channels such that it’s not recorded.
This could come in the form of… talking in person. Or over the phone. Or… by using third party messaging services that are widely available. And, if you’re going to do that, it’s no surprise that you’d use end-to-end encrypted services like Signal or WhatsApp.
The Securities and Exchange Commission today announced charges against 10 firms in their capacity as broker-dealers and one dually registered broker-dealer and investment adviser for widespread and longstanding failures by the firms and their employees to maintain and preserve electronic communications. The firms admitted the facts set forth in their respective SEC orders. They acknowledged that their conduct violated recordkeeping provisions of the federal securities laws, agreed to pay combined penalties of $289 million as outlined below, and have begun implementing improvements to their compliance policies and procedures to address these violations.
That’s from the SEC side. From the CFTC we get:
The Commodity Futures Trading Commission today issued orders simultaneously filing and settling charges against swap dealer and futures commission merchant (FCM) affiliates of four financial institutions for failing to maintain, preserve, or produce records that were required to be kept under CFTC recordkeeping requirements, and failing to diligently supervise matters related to their businesses as CFTC registrants.
The settling registrants admit the facts detailed in the orders, are ordered to cease and desist from further violations of recordkeeping and supervision requirements, and are ordered to engage in specified remedial undertakings.
There’s some overlap. Wells Fargo, BNP Paribas, and SG Americas/Société Générale) gets hit by both agencies.
The details are pretty much exactly what you’d expect:
The SEC’s investigation uncovered pervasive and longstanding “off-channel” communications at all 11 firms. As described in the SEC’s orders, the firms admitted that from at least 2019, their employees often communicated through various messaging platforms on their personal devices, including iMessage, WhatsApp, and Signal, about the business of their employers. The firms did not maintain or preserve the substantial majority of these off-channel communications, in violation of the federal securities laws. By failing to maintain and preserve required records, certain of the firms likely deprived the Commission of these off-channel communications in various SEC investigations. The failures involved employees at multiple levels of authority, including supervisors and senior executives.
I’ve seen some people using this as yet another opening to bash encryption, but encryption is not the problem here at all. First of all, encryption did not stop these banks from getting caught and fined. Second, as noted up top, people are always going to try to figure out ways to communicate that isn’t recorded. These messaging apps were convenient.
Indeed, if anything, these fines should (hopefully?) serve to get employees at these banks to be much more careful about how they communicate to avoid future fines. I still expect there to be plenty of attempts to get around the regulatory requirements to preserve communications, and it seems likely that bankers are going to get used to making phone calls or talking in person since that can’t be preserved in the same manner.
But, really, any time you have regulations requiring such archiving of so many communications, you just know that this kind of thing is likely to happen. There’s a reason why these industries are so heavily regulated… but there’s also a reason why the people in those industries really don’t want their communications preserved for future legal enquiries. There’s no perfect answer here, but these kinds of fines, (which, in total, added up to over half a billion dollars) at least suggest that there are financial penalties available for the banks that basically go “off-channel” as a standard way of communicating.
On Friday, the Internet Archive put up a blog post noting that its digital book lending program was likely to change as it continues to fight the book publishers’ efforts to kill the Internet Archive. As you’ll recall, all the big book publishers teamed up to sue the Internet Archive over its Open Library project, which was created based on a detailed approach, backed by librarians and copyright lawyers, to recreate an online digital library that matches a physical library. Unfortunately, back in March, the judge decided (just days after oral arguments) that everything about the Open Library infringes on copyrights. There were many, many problems with this ruling, and the Archive is appealing.
However, in the meantime, the judge in the district court needed to sort out the details of the injunction in terms of what activities the Archive would change during the appeal. The Internet Archive and the publishers negotiated over the terms of such an injunction and asked the court to weigh in on whether or not it also covers books for which there are no ebooks available at all. The Archive said it should only cover books where the publishers make an ebook available, while the publishers said it should cover all books, because of course they did. Given Judge Koeltl’s original ruling, I expected him to side with the publishers, and effectively shut down the Open Library. However, this morning he surprised me and sided with the Internet Archive, saying only books that are already available in electronic form need to be removed. That’s still a lot, but at least it means people can still access those other works electronically. The judge rightly noted that the injunction should be narrowly targeted towards the issues at play in the case, and thus it made sense to only block works available as ebooks.
But, also on Friday, the RIAA decided to step in and to try to kick the Internet Archive while it’s down. For years now, the Archive has offered up its Great 78 Project, in which the Archive, in coordination with some other library/archival projects (including the Archive of Contemporary Music and George Blood LP), has been digitizing whatever 78rpm records they could find.
78rpm records were some of the earliest musical recordings, and were produced from 1898 through the 1950s when they were replaced by 33 1/3rpm and 45rpm vinyl records. I remember that when I was growing up my grandparents had a record player that could still play 78s, and there were a few of those old 78s in a cabinet. Most of the 78s were not on vinyl, but shellac, and were fairly brittle, meaning that many old 78s are gone forever. As such there is tremendous value in preserving and protecting old 78s, which is also why many libraries have collections of them. It’s also why those various archival libraries decided to digitize and preserve them. Without such an effort, many of those 78s would disappear.
If you’ve ever gone through the Great78 project, you know quite well that it is, in no way, a substitute for music streaming services like Spotify or Apple Music. You get a static page in which you (1) see a photograph of the original 78 label, (2) get some information on that recording, and (3) are able to listen to and download just that song. Here’s a random example I pulled:
Also, when you listen to it, you can clearly hear that this was digitized straight off of the 78 itself, including all the crackle and hissing of the record. It is nothing like the carefully remastered versions you hear on music streaming services.
Indeed, I’ve used the Great78 Project to discover old songs I’d never heard before, leading me to search out those artists on Spotify to add to my playlists, meaning that for me, personally, the Great78 Project has almost certainly resulted in the big record labels making more money, as it added more artists for me to listen to through licensed systems.
It’s no secret that the recording industry had it out for the Great78 Project. Three years ago, we wrote about how Senator Thom Tillis (who has spent his tenure in the Senate pushing for whatever the legacy copyright industries want) seemed absolutely apoplectic when the Internet Archive bought a famous old record store in order to get access to the 78s to digitize, and Tillis thought that this attempt to preserve culture was shameful.
The lawsuit, joined by all of the big RIAA record labels, was filed by one of the RIAA’s favorite lawyers for destroying anything good that expands access to music: Matt Oppenheim. Matt was at the RIAA and helped destroy both Napster and Grokster. He was also the lawyer who helped create some terrible precedents holding ISPs liable for subscribers who download music, enabling even greater copyright trolling. Basically, if you’ve seen anything cool and innovative in the world of music over the last two decades, Oppenheim has been there to kill it.
And now he’s trying to kill the world’s greatest library.
Much of the actual lawsuit revolves around the Music Modernization Act, which was passed in 2018 and had some good parts in it, in particular in moving some pre-1972 sound recordings into the public domain. As you might also recall, prior to February of 1972, sound recordings did not get federal copyright protection (though they might get some form of state copyright). Indeed, in most of the first half of the 20th century, many copyright experts believed that federal copyright could not apply to sound recordings and that it could only apply to the composition. After February of 1972, sound recordings were granted federal copyright, but that left pre-1972 works in a weird state, in which they were often protected by an amalgamation of obsolete state laws, meaning that some works might not reach the public domain for well over a century. This was leading to real concerns that some of our earliest recordings would disappear forever.
The Music Modernization Act sought to deal with some of that, creating a process by which pre-1972 sound recordings would be shifted under federal copyright, and a clear process began to move some of the oldest ones into the public domain. It also created a process for dealing with old orphaned works, where the copyright holder could not be found. The Internet Archive celebrated all of this, and noted that it would be useful for some of its archival efforts.
The lawsuit accuses the Archive (and Brewster Kahle directly) of then ignoring the limitations and procedures in the Music Modernization Act to just continue digitizing and releasing all of the 78s it could find, including those by some well known artists whose works are available on streaming platforms and elsewhere. It also whines that the Archive often posts links to newly digitized Great78 records on ex-Twitter.
When the Music Modernization Act’s enactment made clear that unauthorized copying, streaming, and distributing pre-1972 sound recordings is infringing, Internet Archive made no changes to its activities. Internet Archive did not obtain authorization to use the recordings on the Great 78 Project website. It did not remove any recordings from public access. It did not slow the pace at which it made new recordings publicly available. It did not change its policies regarding which recordings it would make publicly available.
Internet Archive has not filed any notices of non-commercial use with the Copyright Office. Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities.
Internet Archive knew full well that the Music Modernization Act had made its activities illegal under Federal law. When the Music Modernization Act went into effect, Internet Archive posted about it on its blog. Jeff Kaplan, The Music Modernization Act is now law which means some pre-1972 music goes public, INTERNET ARCHIVE (Oct. 15, 2018), https://blog.archive.org/2018/10/15/the-music-modernization-act-is-now-law-which-means-some-music-goes-public/. The blog post stated that “the MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.” Id. (emphasis added). The blog post further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings. Unfortunately 108(h) is notoriously hard to implement.” Id. (emphasis added). Brewster Kahle tweeted a link to the blog post. Brewster Kahle (@brewster_kahle), TWITTER (Oct. 15, 2018 11:26 AM), https://twitter.com/brewster_kahle/status/1051856787312271361.
Kahle delivered a presentation at the Association for Recorded Sound Collection’s 2019 annual conference titled, “Music Modernization Act 2018. How it did not go wrong, and even went pretty right.” In the presentation, Kahle stated that, “We Get pre-1972 out-of-print to be ‘Library Public Domain’!”. The presentation shows that Kahle, and, by extension, Internet Archive and the Foundation, understood how the Music Modernization Act had changed federal law and was aware the Music Modernization Act had made it unlawful under federal law to reproduce, distribute, and publicly perform pre-1972 sound recordings.
Despite knowing that the Music Modernization Act made its conduct infringing under federal law, Internet Archive ignored the new law and plowed forward as if the Music Modernization Act had never been enacted.
There’s a lot in the complaint that you can read. It attacks Brewster Kahle personally, falsely claiming that Kahle “advocated against the copyright laws for years,” rather than the more accurate statement that Kahle has advocated against problematic copyright laws that lock down, hide, and destroy culture. The lawsuit even uses Kahle’s important, though unfortunately failed, Kahle v. Gonzalez lawsuit, which argued (compellingly, though unfortunately not to the 9th Circuit) that when Congress changed copyright law from opt-in copyright (in which you had to register anything to get a copyright) to “everything is automatically covered by copyright,” it changed the very nature of copyright law, and took it beyond the limits required under the Constitution. That was not an “anti-copyright” lawsuit. It was an “anti-massive expansion of copyright in a manner that harms culture” lawsuit.
It is entirely possible (perhaps even likely) that the RIAA will win this lawsuit. As Oppenheim knows well, the courts are often quite smitten with the idea that the giant record labels and publishers and movie studios “own” culture and can limit how the public experiences it.
But all this really does is demonstrate exactly how broken modern copyright law is. There is no sensible or rationale world in which an effort to preserve culture and make it available to people should be deemed a violation of the law. Especially when that culture is mostly works that the record labels themselves ignored for decades, allowing them to decay and disappear in many instances. To come back now, decades later, and try to kill off library preservation and archival efforts is just an insult to the way culture works.
It’s doubly stupid given that the RIAA, and Oppenheim in particular, spent years trying to block music from ever being available on the internet. It’s only now that the very internet they fought developed systems that have re-invigorated the bank accounts of the labels through streaming that the RIAA gets to pretend that of course it cares about music from the first half of the 20th century — music that it was happy to let decay and die off until just recently.
Whether or not the case is legally sound is one thing. Chances are the labels may win. But, on a moral level, everything about this is despicable. The Great78 project isn’t taking a dime away from artists or the labels. No one is listening to the those recordings as a replacement for licensed efforts. Again, if anything, it’s helping to rejuvenate interest in those old recordings for free.
And if this lawsuit succeeds, it could very well put the nail in the coffin of the Internet Archive, which is already in trouble due to the publishers’ lawsuit.
Over the last few years, the RIAA had sort of taken a step back from being the internet’s villain, but its instincts to kill off and spit on culture never went away.
And here we go again. we’ve been talking about how copyright has gotten in the way of cultural preservation generally for a while, and more specifically lately when it comes to the video game industry. The way this problem manifests itself is quite simple: video game publishers support the games they release for some period of time and then they stop. When they stop, depending on the type of game, it can make that game unavailable for legitimate purchase or use, either because the game is disappeared from retail and online stores, or because the servers needed to make them operational are taken offline. Meanwhile, copyright law prevents individuals and, in some cases, institutions from preserving and making those games available to the public, a la a library or museum would.
When you make these preservation arguments, one of the common retorts you get from the gaming industry and its apologists is that publishers already preserve these games for eventual re-release down the road, which is why they need to maintain their copyright protection on that content. We’ve pointed out failures to do so by the industry in the past, but the story about Hasbro wanting to re-release several older Transformers video games, but can’t, is about as perfect an example as I can find.
Released in June 2010, Transformers: War for Cybertron was a well-received third-person shooter that got an equally great sequel in 2012, Fall of Cybertron. (And then in 2014 we got Rise of Dark Spark, which wasn’t very good and was tied into the live-action films.) What made the first two games so memorable and beloved was that they told their own stories about the origins of popular characters like Megatron and Optimus Prime while featuring kick-ass combat that included the ability to transform into different vehicles. Sadly, in 2018, all of these Activision-published Transformers games (and several it commissioned from other developers) were yanked from digital stores, making them hard to acquire and play in 2023. It seems that Hasbro now wants that to change, suggesting the games could make a perfect fit for Xbox Game Pass, once Activision, uh…finds them.
You read that right: finds them. What does that mean? Well, when Hasbro came calling to Activision looking to see if this was a possibility, it devolved into Activision doing a theatrical production parody called Dude, Where’s My Hard Drive? It seems that these games may or may not exist on some piece of hardware, but Activision literally cannot find it. Or maybe not, as you’ll read below. There seems to be some confusion about what Activision can and cannot find.
And, yes, the mantra in the comments that pirate sites are essentially solving for this problem certainly applies here as well. So much so, in fact, that it sure sounds like Hasbro went that route to get what it needed for the toy design portion of this.
Interestingly, Activision’s lack of organization seems to have caused some headaches for Hasbro’s toy designers who are working on the Gamer Edition figures. The toy company explained that it had to load up the games on their original platforms and play through them to find specific details they wanted to recreate for the toys.
“For World of Cybertron we had to rip it ourselves, because [Activision] could not find it—they kept sending concept art instead, which we didn’t want,” explained Hasbro. “So we booted up an old computer and ripped them all out from there. Which was a learning experience and a long weekend, because we just wanted to get it right, so that’s why we did it like that.
What’s strange is that despite the above, Activision responded to initial reports of all this indicating that the headlines were false and it does have… code. Or something.
Hasbro itself then followed up apologizing for the confusion, also saying that it made an error in stating the games were “lost”. But what’s strange about all that, in addition to the work that Hasbro did circumventing having access to the actual games themselves, is the time delta it took for Activision to respond to all of this.
Activision has yet to confirm if it actually knows where the source code for the games is specifically located. I also would love to know why Activision waited so long to comment (the initial interview was posted on July 28) and why Hasbro claimed to not have access to key assets when developing its toys based on the games.
It’s also strange that Hasbro, which says it wants to put these games on Game Pass, hasn’t done so for years now. If the games aren’t lost, give ‘em to Hasbro, then?
Indeed. If this was all a misunderstanding, so be it. But if this was all pure misunderstanding, the rest of the circumstances surrounding this story don’t make a great deal of sense. At the very least, it sounds like some of the concern that these games could have simply been lost to the world is concerning and yet another data point for an industry that simply needs to do better when it comes to preservation efforts.
There’s an interesting post on TorrentFreak that concerns so-called “pirate” subtitles for films. It’s absurd that anyone could consider subtitles to be piracy in any way. They are a good example of how ordinary people can add value by generously helping others enjoy films and TV programs in languages they don’t understand. In no sense do “pirate” subtitles “steal” from those films and programs, they manifestly enhance them. And yet the ownership-obsessed copyright world actively pursues people who dare to spread joy in this way. In discussing these subtitles, TorrentFreak mentions a site that I’ve not heard of before, Karagarga:
an illustrious BitTorrent tracker that’s been around for more than 18 years. Becoming a member of the private community isn’t easy but those inside gain access to a wealth of film obscurities.
The site focuses on archiving rare classic and cult movies, as well as other film-related content. Blockbusters and other popular Hollywood releases can’t be found on the site as uploading them is strictly forbidden.
TorrentFreak links to an article about Karagarga published some years ago by the Canadian newspaper National Post. Here’s a key point it makes:
It’s difficult to overstate the significance of such a resource. Movies of unflagging historical merit are otherwise lost to changes in technology and time every year: film prints are damaged or lost, musty VHS tapes aren’t upgraded, DVDs fall out of print without reissue, back catalogues never make the transition to digital. But should even a single copy of the film exist, however tenuously, it can survive on Karagarga: one person uploads a rarity and dozens more continue to share.
Although that mentions things like film prints being lost, or back catalogues that aren’t converted to digital formats, the underlying cause of films being lost is copyright. It is copyright that prevents people from making backups of films, whether analogue or digital. Even though people are painfully aware of the vulnerability of films that exist in a few copies or even just one copy, it is generally illegal for them to do anything about it, because of copyright. Instead, they must often sit by as cinematic masterpieces are lost forever.
Unless, of course, sites like Karagarga make unauthorized digital copies. It’s a great demonstration of the fact that copyright, far from preserving culture, often leads to its permanent loss. And that supposedly “evil” sites like Karagarga are the ones that save it for posterity.
And here we go again. We have been talking about both the concept of video game preservation being lost to the copyright gods, as well as how copyright often prevents fan-made creations and content around game franchises, for years and years now. Both topics are quite frustrating and both serve as examples of how copyright law and its modern application appear to be getting in the way of its stated purpose: the proliferation of content and culture.
But it’s when these two topics converge that it gets unbelievably frustrating. And that brings us to a fan-made remake and enhanced version of a beloved old game: The Simpsons: Hit & Run. The original game came out in 2003 and was a fairly decent hit. Since then, the game has become completely abandoned, particularly when it comes to its PC version. I’ve looked in all the regular places and you cannot legally buy a new version of the PC game anywhere that I can find, be it on Steam, GOG, etc. The only place you can get a copy is on resale websites and for lofty amounts of money compared to its original sale price when new.
Reuben Ward was such a fan of the game that he endeavored on a years-long project to remake the game in an enhanced version within Unreal Engine 5. He also let the public follow along with his progression in a series of YouTube videos, the last of which is included below, where you can see his work and some of the enhancements he made to the game.
In a new video published to YouTube, Reubs declared the project complete. This latest version began life a year ago after Reubs pulled an earlier version offline to avoid potential legal issues with Disney. That earlier version drew praise from Hit & Run lead designer Joe McGinn, who said at the time: “Amazing what you accomplished! Really gives a taste of what a full modern remaster could be. Impressive work!”
Work that you’ll never ever get a chance to play for yourself. Why? For the most obvious of reasons. Ward mentions in the video above that the game is never going to be made available to download. He did the entire thing as his own personal hobby. And the reason he’s not going to make it downloadable is surely out of fear of any number of entities coming after him for copyright infringement.
It’s a project fans would love to see released, but Reubs has said that will never happen. In a disclaimer included in a video from 2022, Reubs said: “This is a fan remake for entertainment purposes, this game will never be available to download. Please do not pester my poor Discord mods for a download link!”
Calls for an official Simpsons: Hit and Run remake have cropped up from time to time in the 20 years since the original’s release, but it seems an unlikely project. In 2021 we spoke to Simpsons writer Matt Selman who explained why we might not see a remake anytime soon. Selman said that while he “would love to see a remastered version of [Simpsons Hit & Run]“, it would be “a complicated corporate octopus to try to make that happen”.
That’s because the rights for the game are a complicated mess, somewhat akin to the whole No One Lives Foreverfiasco. That same tangled rights mess is also likely why the game, despite calls for a remake or updated version for modern hardware, isn’t happening either.
So, the end result? A beloved game appears to be abandoned by its creators, leaving it an open question as to whether that bit of culture slowly disappears forever with nobody preserving it. At the same time, a dedicated fan who rebuilt and enhanced the game as a labor of love is also denying that cultural output to the world out of fear of being sued into oblivion.
If someone can explain to me how copyright is serving its purpose in this instance, I’d love to hear it.
