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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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Brendan Sinclair avatar

Brendan Sinclair

Managing Editor

Brendan joined in 2012. Based in Toronto, Ontario, he was previously senior news editor at GameSpot in the US.