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 The code still exists, after all; outdated laws simply keep them closed to all of us.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: