What's up with the DMCA fight over defunct online games?

If you've been paying attention, you may have seen press coverage of the Entertainment Software Association's opposition (PDF) to a proposed change to the Digital Millennium Copyright Act.

So, what is ESA arguing about? Who are they arguing with? Why is this happening?

The short version:

A "museum" petitioned the copyright office to change the rules to allow them to provide multiplayer servers for games. Last month, ESA opposed the rule change for a number of reasons like: it could allow widespread infringement, it's not really about preservation, etc.

The long version:

The Legal Background

This is the dense part:

The DMCA prohibits circumvention of anti-infringement technologies. Specifically, 17 U.S. Code § 1201 (a)(1)(A) provides "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." These technical protection measures are sometimes called "TPMs."

That phrase, "circumvent a technological measure", is defined to mean: "descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." The law further provides that a "technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."

In the case of online multiplayer games, the access to a server may be required for the game to function. Where the developer or publisher of the game controls access to the server, that is a "technical measure" that "effectively controls access to" the game. By creating an unauthorized server, a third party would effectively "avoid" or "bypass" (read: circumvent) that technical measure in violation of 17 U.S. Code § 1201 (a)(1)(A).

37 CFR § 201.40(b)(8) specifically allows for personal local use and scholarly study. It does not allow for online gameplay.

The Rulemaking Process

Every three years, the U.S. Copyright takes public comment on the regulations.  The exemption above was adopted in 2015 following comments from various interest groups. The current proposal from MADE is submitted in connection with the 2018 public comment window.

After a proposed rule change is submitted, there is a period of public comment where other groups can write in support or opposition to the change. After that, the Register of Copyrights weighs the comments and makes a recommendation to the Librarian of Congress, who then decides on the rule. The statutory process requires the Librarian to examine five factors:

17 U.S. Code § 1201(a)(1)(C).

The Proposed Rule Change

The "Museum of Art and Digital Entertainment" (MADE) has asked (PDF) that the rules be changed again to expand the exemption described above. Specifically, they ask that an exemption be created to allow the creation of substitute servers for online games. They also ask for an exemption to allow those games to be played online by end users and to allow a sort of crowd-sourced preservation. 

They also ask for modifications to the definition of "complete games" to include "video games that can be played by users through lawful access of game content stored or previously stored on an external computer server" rather than just those that can be played locally. They argue that these exemptions are required for preservation of games in playable form.

MADE asserts that the circumvention they propose to allow is, absent the DMCA, non-infringing because it is a legitimate preservation activity under 17 U.S. Code § 108 and it is fair use.

Their preservation argument depends on Section 108's authorization for libraries and archives to create copies for archival purposes. Their petition admits that "However, § 108 is silent as to whether circumvention of access controls for purposes of preservation is allowable." And so they depend on the Register's guidance from the last rulemaking about the intent of Section 108. That guidance required that video game preservation be (i) carried out by preservation-oriented institutions that (ii) make their collections open to researchers not affiliated with the institution and that (iii) the preservation is not done for commercial gain or (iv) make the games available outside the premises and (v) make no public display or performance of the work. MADE argues only in a conclusory way that the exemption will fit this guidance without addressing MADE's own activities.

Their fair use argument, like almost any fair use argument, runs through the four factors set out in 17 U.S. Code § 107.

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. MADE argues that their purpose is to promote criticism, comment, teaching, scholarship and research - that their purpose is nonprofit and educational. This, if true, cuts in favor of fair use. They also argue that their use is "transformative" because the purpose of their preservation is different than the purpose of the creation - this is an argument they should have left at home in my opinion. In my view, the purpose of preservation is to allow the game to be played as it was originally designed - even if the underlying motive scholarship.

(2) the nature of the copyrighted work. MADE argues that, while video games are highly expressive, the actual copying they need to do relates only to the functional parts of the program. The back end. They argue that this is an important distinction weighing in their favor. But, if they were copying non-video-game software, the expressive parts of that software would still be protected by copyright, right? And, doesn't this argument undercut the paragraphs and paragraphs spent espousing the value of games for preservation?

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole. MADE admits here that they would sometimes need to copy the entire game. They argue that this "does not preclude a finding of fair use, because preservationists must copy the heart of the game to preserve it." I think what they miss here is that preservation of the game is already allowed. What they are seeking is an expansion of the exemption to allow circumvention of the server requirement. Not that they couldn't make an argument that the additional infringement from the server-side work would not also be fair use, just that they haven't.

(4) the effect of the use upon the potential market for or value of the copyrighted work. MADE argues that because these games aren't for sale anymore, and aren't supported by the original developers or publishers, there is little impact on the market.

The exemption, as currently drafted, limits preservation to libraries, museums and archives. MADE's petition would expand this to "affiliate archivists", which it explains are "individuals that wish to engage in lawful game preservation activities under the supervision of libraries, archives, or museums." Prohibiting these affiliates, MADE argues, hinders preservation efforts.

MADE also asserts that without this exemption, preservation is impossible and there is no adequate substitute for this preservation. They argue that video recordings and still images lack the interactivity of the game and that finding rights holders to obtain legitimate licenses is too difficult.

Who is MADE?

The "Museum of Art and Digital Entertainment" describes itself as "a museum dedicated to interactive art, specifically the art of video games." Based in Oakland, California, the 501(c)(3) seems to do a lot of work aimed at preserving older games and educating people on interactive arts. However, it also seems to function as a bit of a retro-arcade. It charges $10 to play games for a day. And, that's how the admission price is phrased on the website: "$10 to play games all day" not "$10 for admission to the museum."

The Opposition

ESA counters MADE's proposal by arguing that video games are important culturally and artistically - a point MADE would presumably concede. ESA asserts that video game publishers have an economic incentive to preserve their own games, which sometimes might be re-issued years after the initial release. They also say that there are already video game preservation programs, including those of ESA and the Library of Congress (to whom the argument is directed).

ESA argues that the existing exemption is sufficient to facilitate the research and study contemplated by the proponents. ESA says that "Because governmental, nongovernmental, and private-sector stakeholders are committed to developing coordinated and voluntary approaches to preservation that apply high professional standards and are respectful of copyright issues, the proponents’ claims that America is in danger of losing its game heritage without a substantially expanded  exemption for circumvention of TPMs are simply wrong."

ESA argues that the effects on which proponents rely are not caused by the protection measures.

ESA also does not buy MADES's argument that its proposed uses are noninfringing. "Contrary to the proponents’ assertions, this copying involves core expressive aspects of the game experience, including creative choices about how players interact with each other and their environment... Even if the copying is not direct and mechanical, it is infringing, because copyright law prohibits non-literal copying of the expressive aspects of software."

They assert that circumventing the TPMs where server interaction is required implies additional infringement by running an unauthorized copy of the software, creating derivative works to ensure connection and interoperation shows MADE's goal is not scholarship but to allow the public to play video games through public performance and distribution. Most of this I agree with, however I am somewhat skeptical that the connectivity portions of the software would be infringing an not just additional functional elements.

ESA is particularly troubled by the crowdsourcing portion of the proposal. They see it as allowing exchange of unauthorized copies of games through loose networks of affiliates and generally leading to sharing of games and code.

The proposal would also allow widespread jailbreaking, ESA argues. Circumvention, especially in the case of console games, would threaten infringement and exposure of copyright and trade secret material well beyond the games themselves. The same is true for certain proprietary server protocols and authentication systems.

ESA argues that the harms MADE's proposal seeks to correct are neither caused by the anti-circumvention provisions nor entirely problematic. Shutting down a server, they point out, is different than requiring access to a server in order to prevent copying. Thus, the problem is the lack of a server, not the protection mechanism or the anti-circumvention provision.

They also point to games that have been re-released many years later to illustrate why the expanded exemption is not necessary. They cite examples like Vanilla WoW, Xbox One backward compatibility, and the recently re-released Shadow of the Colossus. This is a compelling argument to me. If the company that originally released the game still owns the copyright in the game and wants to exploit it later, perhaps a period of non-playability is good for business. Lack of supply and a sense of nostalgia can fuel demand for a future re-release. Copyright terms are long, and allowing third parties to undercut companies' ability to make use of that longevity seems contrary to the purpose of having a long term in the first place.

The existing exemption, ESA argues, is sufficient to allow for scholarship and study. MADE's petition, by contrast, goes beyond scholarship to allowing entertainment and public performance.

ESA counters MADE's fair use argument, examining the four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. ESA argues that MADE's use is commercial, which should weigh against fair use. MADE's public performance, for a fee, is a commercial use for the recreation of end users, ESA claims, even if the museum otherwise allows for scholarship. ESA also counters the "transformative" argument:

(2) the nature of the copyrighted work. Given the tone of both parties' submissions talking at length about the artistic value of video games, ESA didn't need to add much here.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Made admitted they'd sometimes need to copy the entire game. ESA piles on here, pointing out that they'd need to hack together solutions for interoperability that would themselves be infringing. The end goal also, according to ESA, appears to be repeated public performance and display of the games, without permission, and widespread use of the game by the public without payment.

(4) the effect of the use upon the potential market for or value of the copyrighted work. ESA points out here that MADE has used the word "abandoned" to describe the games that are no longer supported. But, "abandoned" in copyright very specifically means that the copyright holder has deliberately abandoned them. In the case of these games, generally speaking, the publishers have merely made an economic choice not to run the server. They may even be using some of the underlying assets from the same franchise in other titles. And, as ESA already pointed out, sometimes they re-release titles decades later. ESA also argues that the jailbreaking would extend beyond the museum-circumvention and that the quality of third party servers would degrade the overall quality of the copyrighted work.

Are there other proposed rule changes?

Yes! A ton of them! There are 21 just about computer games (although several of them are just individuals supporting MADE's petition - several of which are oddly specific about Asheron's Call, and some of which are from volunteers at MADE - On Page 28 of the ESA response, they actually use quotes from these to show the intent is to allow people to play the games, not to allow scholarship and study). There are additional petitions about video games from groups like Public Knowledge and Consumers Union seeking a similar exemption to the MADE petition. And, a fun one from the Free Software Foundation basically arguing that the anti-circumvention provisions of the DMCA should be eliminated.

What outcome can we expect?

Based on the rejection of a very similar request in the 2015 proceeding, I would anticipate that ESA will come out on top in this proceeding as well. Recall that the touchstone for the decision is going to be the statutory factors:

(i) the availability for use of copyrighted works.

MADE argues that broadening the exemption will expand the availability of the games. ESA argues the opposite, of course. ESA's point is that by allowing this expanded exemption, the copyright protection for games overall is less valuable and could reduce investment in games. That, they say, would reduce future availability of games.

(ii) the availability for use of works for nonprofit archival, preservation, and educational purposes.

MADE argues that the expanded exemption is necessary to make the works available for this purpose. ESA argues, citing the Register's 2015 opinion, that online multiplayer is not necessary for preservation for scholarship. Personally, I see both sides to this. The games are often not going to be the same without the community - but supported online games could likely fill the scholarship void if the purpose of the study is community.

(iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research.

MADE argues that the proposed exemption will increase the public's access and ability to engage in these activities. ESA does not disagree with this, but instead argues that the expansion would lead to infringement, and so on as above.

(iv) the effect of circumvention of technological measures on the market for or value of copyrighted works.

MADE argues that these games are not being sold, so there is no negative impact. MADE goes a step further to argue that their efforts may actually increase value in the otherwise-abandoned games by raising awareness of the underlying IPs and encouraging audiences to purchase other titles or future sequels from the same developers. ESA addresses this at length, summarized above, and obviously disagrees.

(v) such other factors as the Librarian considers appropriate;

MADE tries to argue that there will be little impact on piracy because of this exemption. It argues that the exemption does not allow those with unlawful copies of the game to access servers. It argues that it won't affect non-abandoned security protocols because "each game protocol is unique". It also argues that it will not impair any market for older games or licensed backward compatibility because there is no market for them - or because if the backward compatibility exists, they would not be considered abandoned.

ESA argues first that the proposed exemption could lead to additional violations of the anti-trafficking provisions of 17 U.S. Code § 1201 (a)(2)(A), which prohibits trafficking in technology designed to circumvent technological controls on access to protections. The jailbroken consoles argument again. They also re-hash the infringement-will-lead-to-low-quality-servers-and-brand-tarnishment argument summarized above.

Don't get me wrong, I love the idea of booting up a game of City of Heroes or The Matrix Online (don't make fun - it wasn't all that bad), but the only way to do that is copyright infringement. I think the reality is that allowing someone to create (and even potentially profit) from the required servers is sanctioning copyright infringement. Preservation can be accomplished through the current exemption or, at most, a less expansive proposal. An enterprising law student could even propose a mechanical or compulsory license system in a law review article - though it'd probably never move past academia.

For additional legal context, see the original post on the Odin Law and Media blog.

UPDATE: The Library of Congress has passed a new ruling as of October, 2018, that now makes it easier for video game historians to preserve and share culturally relevant video games. The exemption applies so long as the preservation doesn't harm the video game market in any way and requires that the archivist must legally acquire the original game and server code. Affiliate archivists are not included in this exemption and it's also worth noting that public access to preserved games isn't granted outside of the physical premises of the library, archive or museum.