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US approves DRM circumvention on abandoned games

DMCA exemption allows players to bypass server authentication after servers are turned off; proposed exemption for jailbreaking consoles denied

As of today, it's legal in the US to bypass some anti-piracy on abandoned games. Among the latest exemptions to the Digital Millennium Copyright Act granted by the Librarian of Congress is one specifically allowing people who purchased games that required online server authentication checks to bypass such security measures once the copyright owner has shut down those servers for good.

The language of the exemption specifically protects those circumventing the digital rights management either for personal play on their own systems, or to allow preservation of the game "in a playable form by an eligible library, archives or museum..." It also states that the exemption only applies if the game is unplayable in any form once the servers are shut down, so it would remain illegal to circumvent DRM on a game that is still playable in single-player mode and has only had its multiplayer servers turned off. The exemption also doesn't apply to games where content is primarily stored on the developer's server, such as MMOs.

The Entertainment Software Association argued against the exemption, saying it was too broad, could adversely impact the market for games, could encourage piracy, and would not facilitate any behavior that wouldn't itself violate a game maker's copyrights.

The exemption was jointly proposed by the Electronic Frontier Foundation and Harvard Law School student Kendra Albert. Other amendments the EFF fought for included one for accessing controls on software in automobiles (a pressing topic given the recent Volkswagen scandal) and exemptions for remixing videos using clips from DVDs, Blu-Ray discs, or online services. The EFF welcomed the changes, but criticized the way DMCA amendments are considered and renewed on a rolling three-year cycle.

"It's absurd that we have to spend so much time, every three years, filing and defending these petitions to the copyright office. Technologists, artists, and fans should not have to get permission from the government-and rely on the contradictory and often nonsensical rulings-before investigating whether their car is lying to them or using their phone however they want," said EFF Legal Director Corynne McSherry. "But despite this ridiculous system, we are glad for our victories here, and that basic rights to modify, research, and tinker have been protected."

Another exemption for jailbreaking consoles for the purpose of installing homebrew or alternative operating systems was denied. That proposal was made by an individual, and was found to be substantively the same as a proposal that had been denied during the last round of DMCA amendments in 2012.

[UPDATE]: ESA senior VP and general counsel Stan Pierre-Louis released the following statement:

"We are pleased that the Librarian acknowledged the very real challenges that would be posed by allowing the circumvention of technological protection measures in video game consoles. The Librarian's decision rewards the partnership between the gamer and those who create fantastic interactive experiences. Online games and platforms will continue to attract investment and provide entertainment to millions of gamers, and gamers and preservationists will be able to enjoy appropriate access to video games that no longer are supported by game makers."

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Latest comments (3)

Morville O'Driscoll Blogger & Critic 2 years ago
The Entertainment Software Association argued against the exemption, saying it was too broad,
Not with what the previous paragraph says.
could adversely impact the market for games
Errr.... What does that even mean?
could encourage piracy,
Very unlikely. The only time people are legitimately going to use this exemption is when they try and get a game running, and it doesn't work. The people who are downloading cracked games every day aren't going to give a monkeys one way or the other. Perhaps it'll publicise the Scene more?

Of course, there's a way around this exemption, for the pubs/devs. Send out a patch that removes the DRM check before shutting down the servers. But that would require effort, and if a server is being shut-down, the pub/dev has already decided the game is no longer worth any effort.
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Darren Adams Managing Director, ChaosTrend2 years ago
allowing people who purchased games that required online server authentication checks to bypass such security measures once the copyright owner has shut down those servers for good.
Sounds perfectly reasonable to me. If you sell a product that requires upkeep that is delivered by the seller, then if you stop providing that service you should at the least open up the product so owners can still use it.

Edited 2 times. Last edit by Darren Adams on 29th October 2015 10:07am

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Curt Sampson Sofware Developer 2 years ago
Personally, I'd like to see copyright laws changed to focus on the original purpose of copyright: making works available to the public that would not otherwise be available.

Granting artificial monopolies to people and organizations so that they can sell (or in economics terms, extract rent on) something that people would otherwise be able to duplicate at their own expense is fine, so long as the owner actually is selling it. But I think that copyright should need to be renewed (or reconfirmed) after ten years, and again after every subsequent five years, with renewal allowed only if the owner (or a designated agent of the owner) is making the work available to the public in a form that can be consumed on currently available technology or has done so within the last five years and indicates intent to do it again. (There are a lot of details about what that means that would have to be worked out, obviously, but it doesn't seem utterly impractical to me.)

Basically: you don't get to use copyright to ensure that nobody can enjoy a work: you only get to use it to ensure that you can make money off enjoyment of a work, if you feel that's worthwhile to you.

Until people start looking at copyright again as a way to make works available rather than to prevent them from being available, more and more of our creative works are going to end up in a virtual Library of Alexandria.
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