Game Over?

By Jacob Evans

The debate over digital decay has reached critical mass.

Electronic Frontier Foundation (EFF), am international nonprofit organization digital rights group, along with law student Kendra Albert, a Harvard Law School JD candidate and former legal intern at EFF, are seeking an exemption to the Digital Millennium Copyright Act’s anti-circumvention provisions (Section 1201). The Section 1201 exemption is in light of the fact that the law is against anyone, including museums, digital archives or others trying to preserve older games and maintaining them to be playable. The implications of the exemptions could have resounding effects in the gaming industry, the side fronting this argument is the Entertainment Software Association (ESA). If the Section 1201 exemption (Proposed Class 23: Abandoned Software—video games requiring server communication) is allowed, ESA argues it will give more legal wiggle room for hackers to avoid repercussions for illegally modifying games or gaming equipment, so they can steal and possibly redistribute the products.

According to an excerpt from ESA’s long comment on Section 1201, “A significant and practical consequence of granting the proposed exemption, which should not be ignored, is that users would wrongly believe that they can traffic in circumvention tools to hack their video games or engage in wholesale reproduction and distribution of the video game software.” The group explained that: “The takeaway would be that hacking—an activity closely associated with piracy in the minds of the marketplace—is lawful. Invariably, the market for distribution of hacking tools would grow to serve the market for this ‘lawful’ use. Should litigation be necessary to thwart the unlawful distribution of those tools, the burdens and costs of such litigation would be significant, and would greatly diminish the value of copyrighted works.”

EFF is working to help legally protect individuals or museums attempting to keep these server dependent games running. A serious example of this issue is the relatively recent game “Major League Baseball 14: The Show” (or “MLB 14”), which, only a little more than year after its release to the public, Sony shut down the servers for the game.

This kind of server shutdown is what makes games that are dependent on a server connection unplayable, and “MLB 14” shows us it can happen not only to older games, but also to relatively new ones (within the last couple years). EFF synthesizes this into an article, this part outlining their passion for the topic: “Games abandoned by their producers are one area where Section 1201 is seriously interfering with important, lawful activities—like continuing to play the games you already own.

It’s also a serious problem for archives like the Internet Archive, museums like Oakland, California’s Museum of Art and Digital Entertainment, and researchers who study video games as a cultural and historical medium. Thanks to server shutdowns, and legal uncertainty created by Section 1201, their objects of study and preservation may be reduced to the digital equivalent of crumbling papyrus in as little as a year. That’s why an exemption from the Copyright Office is needed.”

ESA is the group that organizes the annual E3 (the Electronic Entertainment Expo), one of the largest gaming conventions in the gaming culture. ESA was also a strong supporter of Stop Online Piracy Act (SOPA) and Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA), which are bills introduced to legislation early 2011 that had the Internet and gaming communities in uproar.