Abandonware Ruling a Mixed Bag for Videogame Makers, Preservationists

In a decision of great interest to the videogame industry, the U.S. Copyright Office ruled that old games could be modified for the purposes of preservation, but multiplayer gameplay wouldn't be allowed in this context. Groups on both sides of the situation expressed mixed feelings about the ruling.

For both the Entertainment Software Association (ESA) and digital preservationists, a recent U.S. Copyright Office ruling was anything but a flawless victory. In fact, it might be called something of a draw.

ESA, which represents the interests of the videogame industry, had argued against allowing gamers to modify old software with the goal of getting around server checks used as an anti-piracy measure. Digital preservation advocates such as the Electronic Frontier Foundation (EFF), meanwhile, contend that modifying old videogames whose servers are no longer supported should be allowed, otherwise old games could fall into the cracks of history.

In the end, the Librarian of Congress gave both sides concessions in its decision last month. While gamers will be able to build their own servers in order to keep an abandoned game working, they won’t be allowed to run multiplayer servers—which, for many older games of this nature (such as Quake 3 or Ultima Online), is their reason for being.

“As with gamers generally, the recommended exemption for preservationists does not extend to circumvention to enable online multiplayer play, which is an activity that would extend beyond the walls of the preserving institution,” the Librarian of Congress wrote [PDF], adding that the risk of piracy “is much lower in a preservationist setting than with respect to gamers at large.”

EFF, while backing the ruling, found the limitation on multiplayer games frustrating.

“We’re disappointed that the Librarian decided to limit the exemption to games that aren’t playable at all without an authentication server, because the heart of many games is online multiplayer mode, and preserving multiplayer play should not have to happen under a legal cloud,” EFF Senior Staff Attorney Mitch Stoltz said to Ars Technica, as noted on EFF’s website last week.

ESA, whose president and CEO had argued earlier this year that “there’s no such thing as an obsolete game” in an era when revivals are common, may have lost that argument, but it appears to have made a compelling case on a related copyright issue. As a result, the ability to hack at old software won’t extend to the consoles—something that ESA strongly argued against but enthusiasts sought as a way to encourage the creation of homebrew software for obsolete consoles.

In comments sent to Polygon and Ars Technica, Stan Pierre-Louis, ESA’s senior vice president and general counsel, largely focused on this specific part of the Copyright Office ruling.

“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,” Pierre-Louis said in his statement. “The Librarian’s decision rewards the partnership between the gamer and those who create fantastic interactive experiences.”


Ernie Smith

By Ernie Smith

Ernie Smith is a former senior editor for Associations Now. MORE

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