When you buy a book, a record, or a movie, you can expect to be able to enjoy it, on your own terms, for as long as you want. But the same cannot always be said about video games. Over the past several years, video game publishers have increasingly required connection with one of their own servers in order to "unlock" core functionality for gameplay. Publishers often take those servers offline once they stop being economical to run, leaving a typical gamer unable to play her lawfully purchased games. And this affects not just video game players, but archivists and researchers who want to preserve and study the history of games as cultural artifacts.
EFF has filed a petition with the Copyright Office and the Librarian of Congress this week seeking an exemption to the Digital Millennium Copyright Act's anti-circumvention provision, in order to allow video gamers to modify their software to disable authentication checks or to connect to third party servers after official support for those games has ended.
As with the other petitions we've filed this week, the issue is not one of copyright infringement. Making modifications to lawfully acquired software in order to access its functionality is an established fair use. The problem, instead, is that the DMCA contains a broad anti-circumvention provision that doesn't distinguish between infringing and non-infringing uses. Except for the exemptions created in a time-consuming and laborious process every three years, the DMCA creates a blanket ban on breaking DRM to access copyrighted works, regardless of the ultimate intent.
As you might expect, such a sweeping restriction has many unintended consequences, chilling speech and hindering competition in a ham-fisted effort to limit infringement. The law is sorely in need of an adjustment—one promising reform proposal is the Unlocking Technology Act, introduced last year by Rep. Zoe Lofgren and a bipartisan coalition of legislators.
This petition marks the first time we have requested a specific exemption for abandoned games, reflecting the fact that the problem has become more and more mainstream. Even massively popular franchises like Need For Speed and Mario Kart have had major functionality lopped off by their publishers as their sales waned. And the issue will only become more pronounced as more game sales shift to digital marketplaces, where authentication checks are even more common.
As archivists can attest, there are a number of ways in which digital media in general are more fragile than physical media. The law should not be exacerbating that problem. But with video games in particular, legal restrictions on preserving and maintaining functionality threatens to wipe out communities of players that participate in competitive or collaborative play.
In an ideal world, publishers wouldn't encumber their software with restrictive DRM, mandatory authentication schemes, or proprietary multiplayer protocols. In the meantime though, gamers should be allowed to continue playing the games they've legally purchased without a cloud of legal uncertainty hovering over them.
