ESA opposes potential DMCA rule change aimed at preserving abandoned online games

"Preservation of online video games is now critical,” says Museum of Art and Digital Entertainment

The Entertainment Software Association has moved to oppose efforts by the Museum of Art and Digital Entertainment (MADE) to preserve abandoned online games.

Suggesting it could result in “substantial market harm” the ESA has made its case that amendments to the Digital Millennium Copyright Act - currently under consideration by the US Copyright Office - should be rejected.

In 2015, exemptions were added to the act which essentially allowed libraries, archives, and museums to preserve old games through emulation, jailbreaking, and other circumvention methods.

Importantly, the amendment didn't legitimise this approach for online functionality in games.

However, every three years the Copyright Office looks to renew the provisions after hearing arguments from the public.

The MADE, a non-profit California-based organisation, is now petitioning the Copyright Office to include amendments that would extend this right to online games.

"Although the Current Exemption does not cover it, preservation of online video games is now critical," MADE argued in its case to the Copyright Office.

"Online games have become ubiquitous and are only growing in popularity. For example, an estimated 53% of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online."

However, as reported by Torrent Freak, the ESA has taken a contrary stance, arguing that further exemptions would enable infringing use for commercial purposes with organisation such as MADE replicating game servers and charging people to play.

Despite MADE's position as a non-profit organisation, the ESA argues that this service is something companies would generally charge for, and it could be seen as a commercial effort in direct competition with the developers and publishers represented by the ESA.

"Public performance and display of online games within a museum likewise is a commercial use within the meaning of Section 107," posited the ESA in its opposition submitted to the US Copyright Office. "MADE charges an admission fee - $10 to play games all day.

"Under the authority summarised above, public performance and display of copyrighted works to generate entrance fee revenue is a commercial use, even if undertaken by a non-profit museum."

The ESA also suggests that such circumventions would allow for unreleased server code to make its way into the hands of the public.

It concluded: "Eliminating the important limitations that the Register provided when adopting the current exemption risks the possibility of wide-scale infringement and substantial market harm."

The Copyright Office will take all arguments into consideration before coming to a conclusion.

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