Preserving abandoned games, even for museums, is illegal because ‘hacks’

CVG Archive UofM

Are you considering restoring that vintage game to full functionality? Well, perhaps you shouldn’t. The Entertainment Software Association says that restoring the functionality of older video games that are no longer supported by their publisher is “hacking” and all hacking is “associated with piracy.” This statement even stands if the game is headed to museums and archives.

The Electronic Frontier Foundation (EFF), along with Kendra Albert, a law student, has taken to asking the Copyright Office to give some legal protection to game enthusiasts, museums, and academics that preserve older video games and keep them playable, by asking for an exemption to the Digital Millennium Copyright Act’s anti-circumvention provisions (Section 1201) for those who modify games to keep them working after the servers they need to run said game are shut down. Section 1201 creates legal difficulties for player communities (museums, archives, researchers alike), which is why EFF and Albert have asked the Copyright Office to hand out exemptions.

Section 1201 is often used by the entertainment industries to control markets and lock out competition, not as a copyright infringement preventative. So it’s not entirely too surprising that the ESA, who is the trade association for the largest game producers, the MPAA and RIAA (Motion Picture Association of America and Recording Industry Association of America, respectively) have written to the Copyright Office to oppose this exemption.

These companies state modifying games to connect to a new server (or mods that avoid the server contact all together) after publisher support ends will destroy the video game industry. Even if these modifications allow people to continue to play the games they paid for, it would “undermine the fundamental copyright principles on which our copyright laws are based.”

ESA also says that exceptions to section 1201’s blanket ban will send a message that “hacking—an activity closely associated with piracy in the minds of the marketplace—is lawful.” ESA, along with MPAA and RIAA, seem to be opposing anyone who bypasses game DRM for any reason, limited or important.

Games that are abandoned by their publishers are one area where Section 1201 is seriously interfering with important, lawful activities – playing games that one already owns. It also creates a serious problem for archives like the Internet Archive, museums like the Museum of Art and Digital Entrainment in Oakland, California, and for researchers who study video games as a medium of historical and cultural nature.

Due to server shutdowns and the legal uncertainty as provided by Section 1201, objects of study and preservation may be reduced to the digital equivalent dry rot, crumbling papyrus in as little time as a year. The exemption from the Copyright Office is needed.

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