A three-year fight to help support game preservation has come to a sad end today. The US copyright office has denied a request for a DMCA exemption that would allow libraries to remotely share digital access to preserved video games.
↫ Dustin Bailey at GamesRadar
This was always going to end in favour of the massive gaming industry with effectively bottomless bank accounts and more lawyers than god. The gist is that Section 1201 of the DMCA prevents libraries from circumventing the copy protection to make games available remotely. Much like books, libraries loan out books not just for research purposes, but also for entertainment purposes, and that’s where the issue lies, according to the Copyright Office, who wrote “there would be a significant risk that preserved video games would be used for recreational purposes”.
The games industry doesn’t care about old titles nobody wants to buy anymore and no consumer is interested in. There’s a long tail of games that have no monetary value whatsoever, and there’s a relatively small number of very popular older games that the industry wants to keep repackaging and reselling forever – I mean, we can’t have a new Nintendo console without the opportunity to buy Mario Bros. for the 67th time. That’d be ludicrous.
In order to protect the continued free profits from those few popular retro titles, the endless list of other games only a few nerds are interested in are sacrificed.
BTW this is why I am in favor of AI scrapping copyrighted content. The copyright holders got their absurdly long copyright term based on a copyright framework created back when phonographs were state-of-the-art technology and extended multiple times during the 20th century, but if they want the copyright law to be modernized for the 21st century, that modernization should be comprehensive, including reducing the absurdly long copyright term and introducing a provision that if a work hasn’t been made available for sale by the publisher in the last 5 years, it should be free to copy and distribute without permission from the copyright holder, not just adding provisions to restrict usage of copyrighted content by AI to the existing framework.
Probably a bad move, we’d just get “updated” version ever 4 years and 11 months like Disney do with their “live” version, just to artificially extend the license lifetime. Sony do it too with their Spider-man license.
That still wouldn’t extend the copyright term (if such a reform was passed). Anyway, my point is, copyright holders cannot complain about the issues they have with copyright law when it comes to AI and demand reform but at the same time defend provisions of copyright law that are absurd by today’s standards by saying “copyright law is what it is”. We either need comprehensive reform or not.
I only have this article to go on ( so may be missing massive info or context ) but it sounds like they were simply outmaneuvered.
The argument to allow sharing was presented as as a purely academic interest. Understandable as it sounds noble and defensible.
The industry called them on it and said that the real motivation was to share games for fun. Since game company’s sell use games to play for fun, that sounds like the kind of thing courts don’t like. There are laws against unfair competition. There are laws against dumping. There are laws protecting the right to commercialize copyright. If we park our own politics, it is frankly easy to see the game companies as the victim when framed that way and the “no honest, it is all about research” argument sounds like a bit of a fib. At the academic argument sounds like a niche win for a mainstream harm ( against industry ). Not a winning argument.
They should have leaned in to the fact that of course people were going to play the games but that this was an overall good thing for society. Bang hard on the fact that they are no longer available any other way. Stress the obvious fact that, if these games had commercial value or were capable of pulling away purchaser dollars, that companies would be selling them. What the game companies should have had to argue was how they can both simultaneously demonstrate through their actions that the game represent marginal revenue potential while also pretending that they are somehow a big threat to their business at the same time. The argument should have been, “well of course people are going to play and enjoy them BUT they are not going to play them INSTEAD of new games and the enjoyment of older games does not represent a potential loss in revenue”. In fact, it may have been possible to demonstrate that allowing older games to stay available expanded the size and economic value of the gaming market overall. If the best the industry could have done was “people might have fun” while being unable to prove any demonstrable harm to themselves, it would have been a harder fight.
LeFantome,
It’s just that this argument is inconsistent with having libraries in general. If we are to believe this argument that entertainment value is a disqualifying factor for lending, then a logically consistent ruling would result in books no longer being available for lending, DVDs movies and games no longer being available for lending, etc. Libraries can be a place of research yes, but also entertainment. It never used to be wrong for libraries to offer entertaining material before. It is a very significant legal problem that the DMCA created new rights for publishers that were not a legal extension of classic copyrights on physical medium.
Indeed, those who respect traditional copyrights should come to the same conclusion. But DMCA created a two track copyright system with different rights depending on the media. And to be fair they recognized this from the very start. So the law mandates for the government to grant and renew DMCA exemptions every three years. Obviously with hindsight we’re learning how flawed this is; rights are being given and taketh away at a whim.
Frankly publishers are taking advantage of the legal gap between physical media and online media. As more content moves behind digital walled gardens, the rights that libraries and their patrons used to have are effectively being stripped away over time. Naturally publishers probably like these changes anyway, but there was a time when congress and copyright law at least tried to represent the public’s social interests with a balanced copyright system than giving corporations cart blanche.
TBH I don’t know any of it would have mattered since it’s become a recurring theme that corporate power keeps winning their way, The net result is that we’re evolving a government that can’t or won’t represent the people. 🙁
Feels like an other nail in the coffin of archive org
Lennie,
It sure is. I think they’re doing extremely important work for society. They’ve lost some battles to notable mistakes, but ultimately I think it’s the fact that they are butting up against corporate interests that will do them in. In a prolonged war, the corporations not only have tons more resources, but they also have armies of lobbyists to lean the scales of government policy in their own favor.
And if I had to guess, with the right greasing the upcoming administration will be easy to get some extra things passed in the favor of the corporations.
Alfman,
To be honest, I’m not sure how they have survived so far. They were not really under the radar either. They hosted ROMs or even software downloads online. Acted as torrent repositories, and even let clearly copyrighted software to be used online.
That being said, yes I get the point that they are extremely important. I use them very often, and increasingly so.
And given they are increasing in size of offering, they are also increasing their adversaries. When it was the “web archive” it was occasional websites that did not want to be scraped (I still think it should be allowed to do so). Then the video library. Then old software. Now they are basically against many established industries.
In some cases, I am really glad I live in Brazil, and we have the right to circunvent crypto once the original device has no support from the manufacturer anymore or if we want to convert it to another use, like running Linux.
Americans gave too much power to the industry, putting the burden of proof in people and not the companies.
protomank,
In the USA, you can technically do this to the devices that you own for “interoperability”. However developing the technology to do so is still illegal.
Somehow in late 1990s and early 2000s “The Mouse” managed to circumvent the public process and bought the congress. They came prepared while the public was unaware.
We were lucky with a few things (Section 230) as other countries have platform holders liable for content, which is a massive issue for free speech and technological competition. However on others we failed.
And rolling this back won’t be easy. It is on none of the politicians’ agendas.
That’s why things like Stop Killing Games (for Europeans) are important.