Should ‘Abandoned’ Online Games be exempted from DMCA’s?

The U.S Copyright Office is currently considering whether or not to update the its DMCA anti-circumvention provisions, which prevent the public from changing DRM locked content, to allow for abandoned online games to be preserved for future generations. The current consultation, held every 3 years, has received a number of responses from both organisations and individuals focusing on the idea that, as games become more reliant on online multiplayer and online access as key parts of their playability, key cultural experiences are being lost once the company decides to turn off the servers for the last time.

While the Copyright Office does currently allow game preservation exemptions, this are restricted mainly to museums and archives being able to use emulators to rebuild classic games (which is why you can play Pong in museums around the world). The point of contention is that these current exemptions do not apply to games that require connection to an online server, which nowadays includes a large proportion of games currently in circulation. Therefore, when the servers are closed down, the game (or at least a large portion of it) becomes lost forever.

During the consultation, a plethora of individuals and organisations have argued that this should be overhauled as online gaming becomes more prevalent in the gaming market, with The Museum of Art and Digital Entertainment (MADE), a Californian non-profit, stating in its comment to the Copyright Office that the ‘preservation of online video games is now critical’, particularly when ‘many video games rely on server connectivity to function in single-player mode’. MADE has suggested that if the current exemptions are extended to cover online games, libraries, archives and museums will be able to operate servers for abandoned games and keep them functioning for both entertainment and research purposes. With the number of online games suffering from server shutdowns numbering around 319 since 2013 (according to a comment made by digital rights group Public Knowledge), the issue is becoming more relevant than ever.

However, while the idea to extend the preservation exemptions to ‘abandoned’ online games seems like the next step in the drive to restart classic online gaming, the issue may not be as simple as just turning on a server farm in your local library. Perhaps the main stumbling block to any true rejuvenation of abandoned is (somewhat predictably) profit. A company essentially relinquishing its control of an online game to the public domain will undoubtedly conflict with the ‘franchise milking’ business model for a lot of the most lucrative gaming franchises. After all, if you can play FIFA 17 online at no extra cost, with a wealth of modding capability if you’re a PC user, why would you spend another $60 on FIFA 18? This issue can already be seen in the revival community, with EA requesting The Revive team, a group of Battlefield fans who worked to maintaining playability for older games in the series, to ‘stop distributing and using their intellectual property’.

Another issue is that what gamers may expect from this potential change and what is likely to actually happen. The most likely outcome is that online playability would still be in the hands of the intellectual property holder, who will most likely seek to restrict the online access as much as possible to academic circles to prevent exploitation. While this is good for researchers and other interested scholars, the gaming public will most likely find itself still locked out of any meaningful online community building. The IP will also probably restrict the game to its original form, so modding will almost certainly be out unless its required for maintenance.

As with many issues regarding intellectual property in the 21st century, the issue surrounding the preservation of online gaming boils down to what many see as shortcomings in current IP laws. With copyrights often lasting for 100 years before they enter public domain, the fact that many games become obsolete in less than 5 (*cough*FIFA*cough*), means that many games with retained fanbases are simply being left to rot in the backrooms of developer archives unless someone illegally uses the source code to restore them. At the very least, attention should be paid into liberalizing or reforming licensing potential for game franchises, allowing a balance between the economic interests of developers with the artistic and entertainment interests of the fans. Video Games are considered an art form after all, and isn’t the whole point of art to be altered and reworked through inspiration to create new content?

Published by Calum Muirhead

Calum is a prolific gamer masquerading as an adult in his spare time. Can often be observed with face buried in news articles, unhealthy food, eclectic media or all three at once.