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EFF Files for DMCA Exemption on the Right to Strip DRM from Abandoned Video Games

Two days ago I expressed regret for missing the opportunity to petition for a DMCA exemption for stripping ebook DRM after the servers have been turned off. and now it seems the EFF had a very similar idea.

The EFF filed no fewer than 6 petitions this year. In addition to asking the Copyright Office for DMCA exemptions for the right to jailbreak tablets, access a car’s diagnostic data, and a renewal and partial expansion of the exemptions for remix videos that use excerpts from DVDs, the EFF also petitioned for a DMCA exemption for the purposes of rescuing old video games (PDF):

EFF’s other requests this rulemaking include one for users who want to continue to play "abandoned" video games. For example, some users may need to modify an old video game so it doesn’t perform a check with an authentication server that has since been shut down.

That’s not quite the petition I proposed for ebook DRM, but it is a close cousin, and many of the arguments made in favor of stripping DRM for video games apply to ebooks as well.

As the latest version of Sim City made abundantly clear, DRM on video games can completely bork things up even when everything is operating correctly, and things only get worse when the DRM servers are shut off.

As we’ve seen time and time again, otherwise perfectly functional games can be arbitrarily killed or lose features at the whim of the publisher. Thanks to the prevalence of DRM that requires activation/verification or (even worse) a live internet connection, consumers have been repeatedly hurt by game makers that use the DRM and then decide they no longer want the expense of supporting it.

And it’s not just gamers who are harmed by DRM on dead games but researchers and archivists as well:

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.

While it is technically possible to disable the DRM (or hack it so the game will run regardless) and it could even be legal to do so for academic purposes, the EFF points out that the legal cloud has significant chilling effects on both gamers and researchers. (Curiously, it hasn’t stopped the Internet Archive from making 900 arcade games available online – an act which could well be an example of large scale copyright infringement.)

And the EFF wants to do something about that. But to be honest, I don’t think they’ll have much luck. Only a handful of DMCA exemptions are granted at each of the triennial submission periods, so the odds are stacked against any single petition making it through the gauntlet.

To make matters worse, this petition in particular could well look to a non-gamer like a frivolous request, which is why I think it will be the first be disregarded.

Ars Technica


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