An Exemption to the DMCA Would Let Game Fans Keep Abandoned Games Running

https://www.eff.org/let-game-fans-keep-abandoned-games-running

264 67 11 years ago

Repealing the DMCA would also work. Completely overhauling the copyright system from the ground up would be even better.

I know that when you're the little guy, you have to pick your battles wisely, but there are a lot of things we can no longer do as a society because our public domain is no longer growing.

Making an exemption to the DMCA is a temporary fix. For software, we should probably have a completely separate system of granted monopoly, wherein the protections are contingent upon deposit of the source code with the patent and trademark office, which would then become public record when the protection expires (on a completely independent time scale from anything to do with Mickey Mouse).

rtpg• 11 years ago

but isn't the DMCA what provides for safe harbor provisions?

wtallis• 11 years ago

Even the good bits of the DMCA are deeply flawed.

The safe harbor section includes the shoot first, ask questions later takedown procedure with unequal standards for claimants and defendants.

Title 3 of the DMCA addressed the issue of unauthorized copying due to loading a program from disk into RAM by explicitly authorizing computer repair technicians to run your OS and other necessary software even without having their own license. Left unaddressed is the more general reality of how bits are almost never actually moved, merely copied.

The anti-circumvention section provides for exemptions, but they only last three years so they're pretty much impossible for a serious business to rely on.

rayiner• 11 years ago

but there are a lot of things we can no longer do as a society because our public domain is no longer growing.

Serious question: what useful advance is being held back by a bunch of abandoned entertainment not going into the public domain?

tptacek• 11 years ago

Calvin and Hobbes action figures and the Disney XD Calvin and Hobbes cartoon.

nitrogen2• 11 years ago

The question is unanswerable because we don't have access to a parallel universe with sane copyrights. We can't predict that future, or even a parallel present.

I can think of a number of artistic references that would be culturally interesting ways to incorporate old video game code into new games, but there's no way to predict what will be created after several cultural iterations across a few generations. We can only imagine the art of which we are being deprived.

exelius2• 11 years ago

Many of these abandoned games are effectively orphan works. I think if anything, there needs to be a definition of "digital orphan works", because digital IP suffers from bit rot in a way traditional media doesn't.

A 50 year old book is still there, but even a 10 year old game might not even be available for purchase anywhere (and even if it is, it's probably not immediately playable on modern hardware).

Fundamentally, we need to overhaul copyright in light of the fundamental changes to intellectual property sales brought about by digital goods. I'm not optimistic that it will happen, but for a shitty game to be copyrighted for 100 years is just ludicrous. At some point, things need to pass into the public domain.

sp332• 11 years ago

I think consumers need more protections than that. A game that's only a few years old might have the servers shut down in order to force players to buy the next version. The proposed exemption would let fans set up their own servers and keep playing the old version immediately.

exelius2• 11 years ago

Right, but I think a patch on an existing law is maybe not enough. We need a thorough re-examination of intellectual property. I'm not holding my breath though; as long as the conversation about IP is driven by big media, rules are only going to get more restrictive, not less.

jarcane• 11 years ago

My rule of thumb is, generally, "Is the creator still earning from this product," and in the vast majority of cases where gaming software is concerned the answer is no. There is a push through sites like GOG.com to put many old games back on sale, but often it's through middle-men and holding companies and I doubt a dime of some of the more obscure titles goes anywhere near anyone who actually helped create the things.

The result is assorted holding companies picking up a few extra pennies, but a huge range of more obscure works are still the domain of abandonware sites and efforts like the Archive.

furyg3• 11 years ago

"Is the creator still earning from this product" is a test that congress believes doesn't matter.

Walt is dead, Mickey lives on (with copyright restrictions)...

sehugg• 11 years ago

There's kind of a circular dependency here, since several companies use emulators developed by enthusiast reverse-engineers to package their games for resale: http://en.wikipedia.org/wiki/DOSBox#Usage

firebones• 11 years ago

I tried running this to ground with some old Applesoft and Integer Basic games, even going so far as to contact the original author of a particular work for which I had the Basic listing, but which had been sold multiple times across an ocean or two, and presumably resided in the possession of some rolled up big name gaming concern. (Think: 1981 through a succession of things that ended up 20+ years later in TakeTwo.)

Even then I didn't feel comfortable creating a derivative work. The creator wasn't earning money (he was paid off in the 1980s when he sold it, although it was clearly his pride and joy), and the brand of the legal derivatives faded from favor over the years due to technology improvements.

You can find a lot of these types of games in the recently-released distro of DiscoRunner [1], an Integer Basic/Applesoft Basic interpreter. I love that these games and their source is preserved, although as someone who respects IP rights of creators, I always feel a twinge when I see someone's REM statement with a copyright and their name on it scrolling by when I do a LIST command.

[1] https://news.ycombinator.com/item?id=9026865

TheDong• 11 years ago

A 50 year old book is still there

Actually, not so much. The 120 years + life copyright on books means that only the good / famous books last. There are tons of books that were published pre-digital-age but are still under copyright and are just dying a slow death.

benologist• 11 years ago

Their public domain status is a different issue to their preservation - books exist, are bought, traded, gifted etc centuries after they're printed, copyright or not.

danielweber• 11 years ago

Section 1201, starting with subsection (d), contains a bunch of exceptions to copyright law. The reverse-engineering section is of particular interest.

http://www.law.cornell.edu/uscode/text/17/1201

It's summarized as such:

This exception permits circumvention, and the development of technological means for such circumvention, by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.

soperj• 11 years ago

So this means that you can circumvent encryption for dvds/bluray to get them working on linux ect. (for Tv shows[often called Tv Programs] anyway)

sandworm• 11 years ago

The exemption already exists.

(1) The DMCA, and for that matter copyright law generally, creates private rights of action in the copyright owner. Even if something is infringing on their rights they need not act. The decision is up to them.

(2) Copyrights do not pass automatically. Nobody can pick up the torch by asserting the rights of an inactive copyright owner.

(3) True abandonware involves either a disappeared copyright owner or one that no longer cares about an old title.

So ... do what you want with abandonware. If the copyright owner reappears and asserts his/her rights, then it wasn't really abandonware in the first place. That's the risk you run.

Also, copyright isn't what stops people from maintaining old games. It might be the easiest means of enforcement (ie takedown notices) but it isn't the meat. Nobody cares if you make copies of the original Civilization. The copyrighted game is valueless. But they do really really care about you using the "Civilization" trademark. That tidbit of intellectual property has nothing to do with the DMCA.

Flimm• 11 years ago

"The exemption already exists"... where? The rest of your comment only talks about how copyright is often unenforced in these cases, not that there exists an exemption.

drostie• 11 years ago

Sandworm is saying that the exemption exists de facto due to the structure of copyright, since copyright violations are generally civil, not criminal.

My Dad works in biotech and he's fond of telling me the same thing about patents, which are crucial to that industry. "Patents are basically a tax that we have to pay to the lawyer industry, because a patent only exists insofar as you legally defend it. If we don't pay those lawyers, then much bigger biomedical and pharmaceutical companies will just steal our research for their profit." Or, "When your lawyers are preparing a patent, they sit you down and you have to describe exactly what you did. Then you describe it again. Then again, more and more abstractly, until you have something at the level of 'an object with a screen which a person reads medical numbers from', and they write all of this down, so that if someone steals only 50% of your idea, hopefully one of the levels in the middle is abstract enough to stop them, but not so abstract that the judge throws it out."

Copyright describes some situations during which you can sue someone else. Having this perspective changes a lot of things. Copyleft licenses say, for example, "I won't sue you unless you threaten to possibly sue someone else, unless you threaten to possibly sue them for possibly suing someone else a la this very sentence." No wonder GPL is more convoluted than BSD, which merely has to say, "I promise not to sue you; in exchange you are promising not to sue me. Also don't erase the fact that I wrote this."

carussell2• 11 years ago

"The exemption already exists"... where?

17 U.S.C. § 1201, which is both named in the article and otherwise trivially googleable.

chc• 11 years ago

If the copyright owner reappears and asserts his/her rights, then it wasn't really abandonware in the first place.

This doesn't seem like something you can just throw out and accept people to accept. It's essentially saying, "The law is, do whatever you want. If we punish you, you're a criminal, so you deserve it." That isn't the way good law works.

Furthermore, just because a copyright holder takes interest once you've done something with it doesn't mean it wasn't abandonware. It's entirely possible that the copyright holder is hard to track down and doesn't even know they hold the copyright until after you have resurrected it.

basseq2• 11 years ago

General question: who enforces DMCA? Legal protection would be nice, but if the company in question (say Nintendo in the MKW example) doesn't care and doesn't pursue legal action, does it matter in practice?

The only reason the company might care is because the use weakens their overall copyright case (e.g., Nintento's right to the Mario / Mario Kart brand). Enthusiasts don't care, so the interests are aligned, but the lawyers might not be.

ianferrel• 11 years ago

The DMCA imposes criminal penalties for certain acts. The state prosecutes alleged criminal acts, not the alleged victims (in this case, owners of the copyright).

It matters not a whit if the owner of a copyright doesn't pursue legal action if some federal attorney somewhere decides that this is an important issue.

spiralpolitik• 11 years ago

This is the kind of work I like to see EFF do. In particular it states that the legislation is bad, but accepts that it exists. Identifies a small part that can be changed. Campaigns to change just that small part. Rinse and repeat enough times that the legislation eventually collapses due to the number of holes in it.

It's an approach taking in account the realpolitik, and its an approach that other FOSS groups could learn a lot from as the attempt to make change happen.

schoen3• 11 years ago

Thanks!

One difficulty with the "collapses due to the number of holes in it" theory in the context of the DMCA triennial exemption process is that the exemptions expire automatically after three years and have to be re-applied for.

"the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period" (17 USC §1201(a)(1)(D))

(The Copyright Office has also taken the view that the decision to grant an exemption is not directly precedential in the way that a court decision would be -- that there isn't a presumption that it should be renewed, that you can't just say "I propose to renew exemption #2 from 2012 because the Librarian of Congress found it was appropriate then and the same reasons still apply, thanks!" and get a renewal on that basis. So it's quite different from impact litigation that way.)

So, for example there's nobody currently directly benefitting from some of the legal work our lawyers did in, say, the 2003 or 2009 exemption processes.

Our relationship to the exemption process is complicated. In addition to participating in it every triennial cycle but one, we have also strongly criticized it. Here's an example from 2005 (with the super-retro green and blue logo):

https://www.eff.org/document/dmca-triennial-rulemaking-faili...

VonGuard2• 11 years ago

I actually wrote one of the comments included in this piece, and I'd like to encourage all of you to donate to the EFF so they can continue to work on important issues like this. They do not pay their lawyers extravagantly, and most of the authors of this piece (myself included) were doing so, and will continue to do so, on a volunteer basis.

The original document is at https://www.eff.org/document/eff-comments-dmca-exemption-aba...

You can donate to the EFF at https://supporters.eff.org/donate

And if you feel as if we missed something in the document, you will be able to comment to the Copyright Office yourself when there is an open call for comments in a few months. This work helps gamers on the outside, but really, it's helping the developers, both of the games and of the after-market patches.

The original developers get to see their work live on, regardless of the business deals around their IP, and the fans who take the time to write these patches get to have some cover for their work. It's really a no-lose situation, and if an entity is couching it as otherwise, be suspicious.

Finally, if you are hankering to play old PC games online, go download GameRanger http://www.gameranger.com/ It is amazing, and it is also an entirely one-man developed piece of software. He will happily support your game if you ask him, and will do so for free.

devindotcom• 11 years ago

Thanks for the recommendation, I hadn't heard of it - I recognize quite a few games on that list I wouldn't mind playing a match or two of.

VonGuard2• 11 years ago

I believe Age of Empires 2 was rebooted on Steam because someone discovered there were about 3,000 games daily played on GameRanger, every day, for 5 years.

frostmatthew• 11 years ago

For those unaware, in addition to donating directly you can also have 0.5% of your Amazon purchases go to the EFF as they are one of the available organizations for Amazon Smile[1].

[1] https://smile.amazon.com/

BatFastard2• 11 years ago

Thanks that is a great tip. Just added EFF to my amazon profile!

AngrySkillzz• 11 years ago

Moreover, if you look at games as a nascent art form, this kind of work is very important. Art develops iteratively; new artists cut their teeth by studying the great works of the past. If some of these works become abandoned and inaccessible, how can we expect new game developers and designers to learn from them and use that knowledge to further the medium?

Moru2• 11 years ago

We see the fruits of this since a while already. Or haven't you heard the cries of old gamers complaining that "I already played this game back in 1985, it's just new graphics on top."

Moru2• 11 years ago

Or as a responsible game developer studio you could release the server for your 15 year old MMORPG to the fan base. Turbine is working on releasing the server and the tools for creating new content to the fans now after they finally stopped the monthly updates last year.

http://massively.joystiq.com/2014/12/05/work-on-asherons-cal...

BatFastard2• 11 years ago

From what I understand it has to do more with taxes then being responsible. Once the game actually shuts down you get a tax write off for some of the costs involved. If you keep the game running in any form. the tax write off is not available.

throwaway125• 11 years ago

I'm not sure why the proposal would not cover MMO games. If a game studio abandons an MMO game it is completely destroyed for the players, an exemption would be very useful in that case. Perhaps the EFF is trying to avoid too much resistance from big companies that make a lot of money on MMO games, which is understandable but unfortunate.

andrewchambers• 11 years ago

I really want the source code for warhammer dark omen to be released to the public. It just doesn't run on my PC anymore, and I want to make the modifications to fix it.

mahouse• 11 years ago

Or legal WoTLK servers, please :-)

pbhjpbhj2• 11 years ago

How do these games enter the public domain?

They can't. They can't be offered to the public domain after the relevant term expires in exchange for the demos protection of the IP by punishment of tortfeasance.

It is not possible for them to be copyright works then as all copyright works must eventually enter the public domain. Unfortunately this was always a truism within publication. It's part of publication itself that mode of reproduction of the work is laid bare; arguably that is what publication meant in the first instance within the purview of those writing copyright laws. Because it is not contemplated that publication could not make the work public, as that would be self-contradictory there is no really strong rendering of this need. It is, I'd argue, there though. Vis:

Berne Convention, Art.3(3)

"The expression “published works” means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. [...]"

This section of Art.3 goes on to list works that are made public but are nonetheless not considered published and so are not protected by copyright. To my mind works that are inhibited with DRM fall in this category. That is, games - as with other works protected by DRM - are _not_ being published. Publication to the mind of those drafting the law means making the work available to be reproduced. In terms of Berne Art.3 with regard to the nature of games they don't meet with the reasonable requirements of the public either, eg continued playability.

[Thoughts/knock-downs/rejections with reasoning happily received!]

jeremyjh• 11 years ago

In some ways they may be more like a public performance. The venue is constrained and the ticket agreement restricts ability to reproduce artifacts from that performance. Do illegal bootlegs ever become public domain? I'm thinking they can't - they would always be an illegal bootleg.

An Exemption to the DMCA Would Let Game Fans Keep Abandoned Games Running

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