The Digital Millenium Copyright Act is the most fundamental piece of US legislation underpinning digital rights. It's also woefully broken, with its wide-reaching language being used to strong-arm researchers and make tinkering with your own smartphone illegal. The latest trick? Screwing over anyone who wants to preserve video games.
As the EFF explains on its Deeplinks blog, the DMCA's anti-circumvention provisions create legal difficulties for anyone who modifies games to keep them working after the servers they need are shut down. That means game enthusiasts, museums and academics are running a legal gauntlet in order to preserve video game history.
Games are moving increasingly to an online-only model, but as maintaining servers for old games is expensive for publishers, we're seriously at risk of completely losing major parts of our culture, for no good reason. Academics and museums (not to mention people who love the original Call of Duty a bit too much) are willing to work to preserve games, but the video games industry — under the umbrella of the Entertainment Software Association — is opposed to the move.
Section 1201 of the DMCA creates legal difficulty for anyone trying to modify a game to connect to a new server (or no server at all). The EFF, along with law student Kendra Albert, has written to the Copyright Office to seek legal protections for anyone violating Section 1201 to try and preserve a little bit of online history.
The ESA doesn't like that idea at all, and has written to the Copyright Office to oppose the exemption, on the grounds that any "hacking" — regardless of whether or not any actual piracy is taking place — is Bad and Evil and must be discouraged at all costs:
"[A] prohibition on the hacking of technological protection measures controlling access to protected works (even if the hacking does not result in any copyright infringement) [is] necessary in order to encourage innovation in the online distribution of copyrighted works."
The EFF lays out its rebuttal succinctly: not all hacking is bad (far from it, in fact), and tinkering with software is where a lot of game developers originally got their feet wet. More broadly, the "hacking" bogeyman argument is the same that was used to argue against consumers unlocking their phones, or to strong-arm researchers into withdrawing embarrassing revelations about security flaws. It's a fundamental flaw with the DMCA's anti-circumvention provisions, and one that reaches much wider than just preserving old versions of FIFA. [EFF]