How The DMCA And Anti-Piracy Measures Conspire To Keep Video Games In Their Cultural Place

For those of us that think certain intellectual property laws have become overbearing and overly burdensome, one of the fun little exercises is to try and figure out where the best battlegrounds are for the fight against them. For instance, if you think cable television has become expensive, unfriendly, and overtly insane, you want to pay special attention to how professional sports are broadcasted now and in the future. If you want to find ground to battle expanded trademark protections and the crazy ways some companies interpret their rights, perhaps the alcohol and beer industry is a good place to draw a line in the proverbial sand. And for copyright? Well, there has always been a ton of focus on music and movies, but we may be seeing the world of video games emerge as the best ground from which to push back against the restrictions of antiquated copyright in the digital age.

Recently, we covered the spiderweb of nonsense one company had to go through just to try to publish a decade-old game, an attempt that was ultimately given up because the web proved to be too convoluted to navigate. Now, a Consumerist post explains how the DMCA and game publishers have (perhaps) unwittingly conspired to keep video games from claiming their rightful place within our cultural lexicon. The focus in the post is on section 1201 of the DMCA.

Section 1201 of the DMCA prohibits consumers from circumventing copyright protection measures put in place on games or any other digital media. So even if you can figure out a fix that will make a game work offline — much like the Sim City player who discovered a work-around against the disastrous always-online requirement — it’s against the law to do so, even if you’re not otherwise violating the copyright and even if this is the only way to make an abandoned game viable again. Yes, somehow keeping it illegal to fix broken, abandoned games aids in this innovation; perhaps by forcing people to keep buying newer releases.

The piece then draws up two conflicting sides on section 1201 with regards to video games: the Entertainment Software Association on one side and the EFF on the other. The EFF has filed a request to have exemptions put in to section 1201 for gaming enthusiasts and, more importantly, for museums who would need to alter the game in order to make it in any way useful for exhibit. Take, for instance, any of the games that Electronic Arts, member of the ESA, decides to torpedo in whole or in part by shutting down game servers that support or check-in with the software. Or, perhaps more apropos, take any of the myriad of recent games that have been released as “always online,” with copyright protections essentially amounting to a check in with servers not in the consumer’s control. What happens when those servers are no longer worth supporting and are shut down? Well, some or all of the game becomes un-playable.

Now, let’s leave aside the question of whether or not a consumer truly owns the game they buy under these scenarios. Let’s also leave aside whether this kind of DRM or copyright protection is worthwhile at all. Instead, let’s focus on how curators of games can handle this kind of thing in a world where DMCA section 1201 forbids the kind of tampering that would get around these restrictions. Should the ESA get its way and keep 1201 exemption-free, so-called abandoned games or abandonware becomes abandoned culture. And not, by the way, abandoned by the consumer or the public, which might include museums or academics with a strong interest in curating older games. No, the abandonment is committed by the game company itself, leaving a giant cultural hole that cannot be filled in because of a copyright law section those same companies are defending.

I’ve long argued that video games should be considered every bit the equivalent of movies and music. Try to find an equivalent to this problem with either music or movies, however, and you’ll be at it quite a long time before you find anything meaningful. Netflix doesn’t count, because you aren’t buying a movie in Netflix. Same with music streaming services. The closest thing to it is probably how some e-readers can disappear books the consumer has purchased. The difference there is that the entire cultural deposit with a literary work likely isn’t lost when that sort of thing happens, as it can be found and curated in other forms. That’s not the case with old and classic games.

You want to find a place to take a stance against expanded copyright in favor of greater culture? That place is with games. The ESA knows this, which is why it is staunchly defending section 1201.

The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,” and send the message that “hacking… is lawful.”

In fact, as the EFF points out, “hacking” in and of itself is completely legal.

“Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software,” writes the EFF. “If ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”

And no cultural boon from games as a result. Section 1201, within the framework of gaming, can be said to be firmly anti-culture. No two ways about it.

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