The ESA is fighting proposed DMCA exemptions that would preserve sunsetted MMORPGs because of course it is

Over the last couple of years, the Electronic Frontier Foundation has been petitioning for changes to the DMCA to help preserve old video games – to eliminate server-based DRM and legalize emulators for games that had been abandoned. As of 2015, the Library of Congress granted the request, but the exemption very specifically didn’t cover closed-down MMORPGs.

Then, in October of 2017, the US Copyright Office effectively renewed the exception and reopened the argument, in part because of a Museum of Art and Digital Entertainment (MADE) proposal to consider even massively-multiplayer games on the table for archival purposes. Even if you have no interest in playing on an emulator for an ancient MMORPG, surely you can see the value in allowing future historians the opportunity to see these worlds first-hand instead of through blurry YouTube videos. The code still exists, after all; outdated laws simply keep them closed to all of us.

Not so fast, says the good ol’ Entertainment Software Association.

The video game company trade lobby, which represents such corporations as Activision, EA, Bethesda, Disney, and Tencent, has issued a “long comment” opposing the proposal on copyright grounds. It claims the proposal “represents a substantial expansion of the existing game-preservation exemption” that is “a far cry from the serious preservation and scholarly use imagined by the Register in 2015.”

Specifically, the ESA argues that the MADE proposal would require “the creation of substitute game-service environments,” violate anti-trafficking provisions, and “dissolve any meaningful distinction between preservationists and recreational gamers,” thereby inviting “substantial mischief.” Because obviously, unless you have your special archivist badge approved by the ESA, you just want to play dead games like some sort of reprobate dead game trafficker. Indeed, it characterizes MADE itself as a “clubhouse where people gather to play games,” suggesting its goal is “enabling public gameplay, rather than preservation for serious scholarly purposes.” While the ESA further claims that existing video game preservation efforts are sufficient, it’s a hard sell in the MMORPG arena in particular.

Ultimately, the lobbyists’ argument boils down to “we make more money with tight copyright control, so please don’t change that.” Guess we’ll see who wins this round.

Get caught up on the saga:

Source: ESADigital Trends, Torrent Freak. With thanks to Leiloni!
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49 Comments on "The ESA is fighting proposed DMCA exemptions that would preserve sunsetted MMORPGs because of course it is"

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Christopher Angeles

I was hoping something like this would happen. Its just sad that some games sunset and then die forever.

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Peregrine Falcon

“clubhouse where people gather to play games”
– Maybe, and apparently the ESA hates it when people get together to play video games.

Let’s be honest for just a second. Games companies that oppose this don’t want to lose sales to people who would rather play old, closed-down games, to their new lootbox infested garbage. That’s the real reason for their opposition to this.

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Zora

I know it’s way more complicate than companies going “mine mine mine all mine” and there’s many things to considers before passing judgement on such a complex matter.

And I am sure once we are done looking at all sides without prejudices, we’ll find out that it’s actually just companies going “mine mine mine all mine”.

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Cosmic Cleric

it’s actually just companies going “mine mine mine all mine”.

I’m having Warner Bros. Daffy Duck flashbacks right now.

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Ashfyn Ninegold

Nailed it.

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A Dad Supreme

Reminds me of those old shut down themeparks you see around the US.

Some people with a little money from “backers” come along, want to buy it and claim they want to re-open the park to it’s “old glory” and can do it far better, when they have no real chance of doing so. In the end, the money offered isn’t even enough for just the land the park is sitting on so the companies refuse to sell to them.

I imagine with IPs it’s the same thing: A few guys will come along and offer to buy a shutdown IP claiming to re-launch it (ala Hellgate London) better than it released and it ends up becoming a running joke. I’m guessing just having the IP rights for companies is a lot more valuable down the line than to give it away for peanuts for aborted projects.

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Nathan Aldana

except this is for historical non profit purposes, and lets face it, any publisher thinking retaining the rights to auto assault will one day lead to money is a moron.

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A Dad Supreme

Why would they be morons? The Auto Assault IP is pretty much a beloved gem among older gamers.

If some company announced they want to buy the rights and make a new version with today’s tech, I have no doubt there will be a huge buzz in the industry.

Why sell the rights to that for “historical purposes” when they hold something of potential value?

It’s like comics. There were plenty of characters created by Marvel/DC that had no ‘potential’ and then they went from Magneto being a joke to the most powerful mutant around.

They hold the rights in case someone with money and the people to make it (mostly money) come along since it costs them nothing, that’s not exactly moronic behavior vs giving it away for cheap.

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Nathan Aldana

Because you and I both know NCsoft will never sell them, and will never revive auto assault, they just want to hold those rights and do nothing with them, the same with every other dead IP they own. (and that list is fucking long)

Their only value to corporations like this who would only revive them if they could guarantee wow or lineage 2 level success is to hold onto them and deny them to the world.

In short, the only reason is the kind of sheer naked greed that would prefer beloved properties stay dead even from historical archiving just to spite people who refuse to give them all the money on the planet.

And yes, I’m very cynical about the motivations of corporations and personally assume they are all corrupt entities with no motivator but bathing themselves in dollar bills.

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A Dad Supreme

And yes, I’m very cynical about the motivations of corporations and personally assume they are all corrupt entities with no motivator but bathing themselves in dollar bills.

I think you are trying to project human qualities onto an thing that doesn’t really exist which is a mistake.

A company/corporation has one main goal to exist; profit. If it doesn’t generate that it tends to die. So therefore, the goal of a company is to make as much money as it can as an entity.

Sure, humans run those companies but ultimately they are beholden to the company’s survival and that doesn’t mean charity, education or posterity.

Simply put, the motivation of a corporation doesn’t exist since it isn’t really a living thing. Very few corporations get where they are by being “nice”, acting “human” and doing things this proposal suggest they do.

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Peregrine Falcon

“I think you are trying to project human qualities onto an thing that doesn’t really exist which is a mistake.”
– I’d like to agree with you, but I’ve interacted with corporate executives too much over the years to do so.

Way too often I’ve seen corporate executives make emotional decisions and then do their best to use business infospeak to justify their emotional decisions.

Remember Google firing that guy awhile back? Purely an emotional, non-business reason. Corporations aren’t machines. They are organizations of people run by people.

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Bruno Brito

I would say that while the RoR Warhammer server has some overzealous administration, it’s pretty decent as a game overall.

I think we’re overblowing this. Old games aren’t being restored/reclaimed/reopened because of money, but because of love and nostalgia. I’m not one to move only for nostalgia, but i would play a old mmo i loved if i had the chance. There’s not much over that.

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Reht

@Bruno While i agree in theory, it’s small step until it becomes about monetization to the admin’s and hosts, even if it starts out innocuously; to help with hosting, etc. Just look back at Elysium’s implosion.

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Bruno Brito

I don’t have much of a issue with Elysium because while it is moved by greed, it’s small scale. Same as Kronos, who sell some cosmetic stuff. I can pretty much deal with that.

I do believe that there are communities that are interested in just reliving their nostalgia, like Warhammer, SWG, EQ P99 etc etc. I can accept some shitty greedy servers when the option is having something great that can relive you the best times of that which you loved. Such is believing in liberty.

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johnwillo

dissolve any meaningful distinction between preservationists and recreational gamers

Is anybody a game preservationist who doesn’t enjoy playing them? They are postulating the existence of a class of game archivists who do not play the games except for the purposes of technical analysis, and pushing back against the DMCA exemption to protest any expansion beyond this non-existent group of archivists.

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Armsbend

It read like they were speaking of future historians and scientists. Which I found pretty funny. Imagine men and women, if we weren’t going to be extinct, playing hours of The Matrix Online to feel closer to the people (who again, will be extinct – but just for argument’s sake) of the past.

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Archebius

Is it the corporations that will kill us all?

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Armsbend

comment image

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johnwillo

No. The corporations will just sell our internal organs. It’s the lack of internal organs that will kill us all.

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Armsbend

Developers are squarely anti-consumer. If they weren’t creating what is considered child’s entertainment they’d be considered the enemy like other bad citizen corporations in the vein of Exxon, Comcast, you name it. Treat them as such – with contempt.

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Leiloni

I don’t blame corporations for doing what’s in their best interest. They have to succeed and survive. I do however dislike the lobbying laws in this country that allow people and organizations with money to throw their weight around in things like this to influence law and policy.

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Nathan Aldana

Except they dont do that. Corpiorations thrive and lobby for greater and greater unrestricted power while selling a line about how victimized they are.

Its never true, of course, but some people just want to see the devs of their personal favorite videogame as beleaguered heroes in a dark world.

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Schmidt.Capela

This kind of white-knight dev do exist; a few privately-owned indies do operate like that, putting players above revenues.

It’s always gone by the time the studio does its IPO, though, if it even lasted that long in the first place.

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BDJ

How are they wrong though? It is their property. It is there game. What gives you or any of us the right to operate it? You aren’t even a consumer anymore. The games are dead. You aren’t paying for anything.

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Mewmew

The games are dead because they no longer are commercially viable. They won’t lose any money by the code being preserved and able to be set up in an emulated environment. And in fact it’s going to cost the people setting up those emulated environments a good deal of money without being able to charge for the service in return.

This *is* about preserving the history of it all and not about people playing the titles for free.

This isn’t about games that are still alive and making money but about old abandoned titles that will no longer be in use. The law already covers and agrees to code for most abandoned games, what is the problem where MMORPGs specifically should be exempt from the law and not covered as well?

I very much feel future game designers and people in general should be able to go into an emulated environment to see what these old games were like for the sake of history and experiencing them. As mentioned it’s not a money making environment, it’s not going to take away from the current popular games, it simply would be a way for future people to be able to look into abandoned games first hand.

Though you could make an argument about people paying good money for a game that then closes and isn’t up to play any more as well, and if someone else is willing to cover the charges associated with running the backend why that shouldn’t be allowed (when forms of DRM for other games *are* allowed to be emulated when a company shuts down something on their end), that isn’t really even what we’re talking about in this situation. Though it could be an added argument.

How long should one be able to hold tight to a property they abandoned and are no longer using for any purpose? Since it’s digital it’s not physically in a public dump, but in effect it is the same thing. Again this isn’t other people making any money off the product (but indeed costing themselves money just to try and experience it). This stuff is abandoned and not being used anymore. Just like the law that covers other types of games, there is no reason it shouldn’t cover MMORPGs as well.

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johnwillo

I think that a lot of it is, “the more time that they spend playing our great game from 2005, the less time they will spend playing the lockbox-bloated, pay-to-win cash-extract-o-rama that we just released!”

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johnwillo

Legally, they’re not wrong. It’s the dog-in-the-manger attitude that is vexing. “If we can’t/won’t profit from this game, then nobody should be able to.”

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Armsbend

They don’t have to be wrong to be anti-consumer. They could just as easily by a GOOD corporate citizen – giving gifts like this and fostering goodwill instead of bad EVERY GODDAMNED DAY THEY EXIST. But instead they choose not to be.

So as I said, treat them as such – with utter contempt. They certainly hate you, their customer.

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Greaterdivinity

I get that anti-corporate sentiment is at a peak in gaming right now, but this is just fucking silly.

Can we at least be semi-rational with our criticisms of corporate behavior rather than jumping to insane hyperbole constantly?

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Armsbend

I’ve been insanely (stress insane) anti-corporate since I was a teenager – which was a long time ago. Only because they have done nothing to change my mind. Worse really.

I’ll stay with barely rational but able to type coherent sentences as my mouth froths all over my soapbox thank you very much!

We all have our gifts.

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Ket Viliano

Um, here…
*hands napkin*

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johnwillo

But… but… without insane hyperbole, what’s left? Rational discourse? I refuse to stoop to that level!

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Nathan Aldana

The thing is, We’ve tried rational discourse. All it ever gets you is the same boilerplate apologia cooked up by a PR exec for Ubisoft or EA and then recited verbatim by the fans of those companies games like it was some sort of well-reasoned and rational argument.

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Nathan Aldana

Sure, when they stop making it very obvious they literally are plotitng the best ways possible to bleed the most vulnerable dry of their money for sheer profit. I’m looking at you Activision.

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Greaterdivinity

What did Activision do, specifically? The matchmaking system that they filed a copyright for?

Yes, for-profit companies will act like for-profit companies. It still intrigues me that folks have ever seen gaming as anything other than a for-profit industry. The same as music. The same as movies. Yeah, there are some companies that don’t put as much focus on profit, but most absolutely will. Because they’re either legally obligated to (fiduciary responsibilities, yay!) or because they want to keep their employees employed and grow.

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Armsbend

I could sit here all day long and name musicians and movie directors who know for a fact they were never going to be commercial successes. I could sit here for a month and type out painters who felt that way. Writers would also take a month. Did some become successful by accident? Yes.

I’d have to do a week’s worth of research to find a few developers who was in it for the love of game.

It’s just one reason games are not, and never will be, considered art.

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Schmidt.Capela

Mark Jacobs and the Heimburgs come immediately mind as devs who would make easy money doing anything but working on MMORPGs. That took me two seconds.

Which begs the question: do these devs you mentioned oppose allowing a DMCA exception for their MMOs after they close down? Would they prefer to see their creations still playable in some way even after they cease being commercially viable, or would they rather have those games close down, never to be played again?

Most people pushing against this kind of exception, IMHO, are business types of the kind that want to vacuum every last penny from the wallets of players. The devs themselves would likely prefer their work to still be seen and appreciated even after it loses commercial viability, as artists often do.

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Nathan Aldana

yeah, activision has patented tech specifically for the purposes of trying to manipulate those with compulsive spending habits into losing their house, which i find as a dick move.

also.

They dont want to pay their employees, and if you believe that, we have nothing further to discuss.

If corporations could get away with it theyd pay employees even less and work them even harder just to line the pockets of the people at the top.

And the difference with the gaming industry is they skirt 99.99% of the regulations on other sort of entertainment and have a vested interest in keeping it that way, music, or tv, or hollywood movies have rules and regulations towards making it a more fair work environement (even if they dont go far enough sometimes) that the game industry does not

Case in point theres no legal obligation to pay any royalties whatsoever to voice actors in a videogame,

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Bruno Brito

Would be nice to have Jacobs here to say if he would allow his game to be revived in case it sunsetted.

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Bruno Brito

Beautiful.

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Nathan Aldana

As always, the ESA is doing what it was created by gaming corporations to do. Deflect blame off them and advocate for their having all the money forever without anyone daring to question their bloated greedy corpulence

In this case,m its a matter of them wanting to clutch the code of dead MMOs where they can convince themselves maybe one day they can bleed money from the corpses again and something like this would force them to give up those ephemeral profits.

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kgptzac

This, or maybe they are just too cowardly and incompetent that their sequel of the dead game can’t live up to the dead prequel’s fame.

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BDJ

What gives you or anyone else the right to their code though or to determine what happens to it?

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Ittybumpkin

Why do we ever let anything fall out of copyright? Why does the public domain exist for anything?

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johnwillo

May I assume that you are, in general, opposed to books, movies, and music ever becoming public domain? Or is there a time when, as for these other media, games become a part of the common cultural heritage of mankind?

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Nathan Aldana

One, because the history and culture of humanity is something worth preserving and saving for future generations, regardless of if it hurts the precious widdle fee fees of CEOS

Two, What gives corporations the right to make unrestricted profit with no checks and balances on their ability to lie, psychologically manipulate people, or wrecks their employees bodies and lives without repercussions? I have no sympathy whatsoever for corporations and if you do, then thats your mistake to make.

Three, laws do. Thats literally why we legislate regulations on things, whether that be personal criminal laws or meat packing regulations, to take control of the situation when entities would otherwise take the route to the most personal profit even if it hurts humanity as a whole.