The ESA rejects proposed DMCA exceptions to allow the non-profit and unofficial revival of dead online games

Battlefield Heroes, previously revived, then un-revived after EA objected.

It’s easy to forget sometimes that games are a legal minefield, and so much of what we take for granted – mods cheekily using repurposed art assets, or fan-games bringing joy to the masses – are often technically illegal, at least under current American copyright law.

Recently, several groups including the Museum Of Art & Digital Entertainment (MADE to their friends), put forward the argument to the US Copyright Office that existing game preservation exceptions in the Digital Millennium Copyright Act (DMCA) be widened as part of regularly scheduled legal revisions. This would allow for ‘dead’ online games to be more easily revived by entities other than their rights-holders.

Unsurprisingly, the ESA, representing a great number of major gaming publishers has spoken out against this.

This is no grand shock for anyone who has been following the Electronic Software Agency’s decisions in recent years, and seems largely a repeat of their behavior over the same issue when last brought up three years ago. Time and again, the ESA have proven a notoriously conservative organisation, putting immediate financial gains before almost anything else.

Battlefield 2142: Also unlikely to return without changes to the law.

In this particular case, the ESA argue that their own member companies are doing plenty to support the preservation of games already, including nurturing a growing retro gaming market. Anyone that has seen how few emulated titles there are available on the Nintendo Switch could easily argue otherwise, but they would rather keep the availability of out-of-print games firmly under their control.

It’s familiar, Disney-esque behaviour, attempting to preempt any change to copyright law that might in any way, shape or form prompt companies to change from their current money-making strategies. We’ve seen a lot of online games shut down in the past few years, with a few of them not even making it past the beta testing phase, and unless something changes, we’re unlikely to ever see those games again.

The ESA’s full 41-page submission to the US Copyright Office is viewable in PDF form from Torrent Freak, although the short version is simply their belief that any loosening of the law that would allow fans to attempt to repair or revive defunct games would cause quantifiable damage to the industry.

Beyond brand confusion, the ESA argue that this would put non-commercial fan-run efforts into direct competition with massive publishers, limiting their ability to turn a profit. Needless to say, it’s not a popular opinion around RPS Towers/The Treehouse/Castle/etc, but it may yet sway the US Copyright Office.

25 Comments

  1. UKPartisan says:

    The ESA are nothing more than industry sycophants.

    • armaankhan says:

      They ARE the gaming industry. They were formed and are funded by the biggest publishers in the world. They’re always going to side with what’s best for the gaming industry elite, and will never care about anything other than that.

  2. TillEulenspiegel says:

    I’m no lawyer, but despite the successful lawsuit against bnetd, I don’t think it’s at all clear that *all* server emulators would necessarily violate copyright law. Clarity would be nice, but this seems like a case by case thing where it would at minimum be impossible to claim monetary damages with true abandonware.

    • Shuck says:

      Yeah, the emulated servers themselves seem pretty safe – by their nature, they’re only attempts to recreate the functionality of the “real” servers, without actually knowing how they work, so they’re not replicating any protected content. But everything around emulated servers, the client functionality, seems legally problematic – involving some breakage of the DMCA, violating of the EULA (which revokes the user’s license to use the game, thus creating a copyright violation), etc. I’m not sure how one accesses an emulated server without copyright issues coming up.

  3. Menthalion says:

    Their argument is invalid. It’s not that their old copyrighted (now dead) products are in danger, but their current ones are.

    That never was what copyright was intended to protect. If both products share copyrights, the old should be protected by the new.

    But defending copyright so unrelated products are kept from competing has no bearing on copyright.

    • pepperfez says:

      In the US, copyright is currently intended to protect Disney’s profits and everything else is secondary (at best). IP monopolists must be allowed to maximize their profits no matter what, public good and common sense be damned.

      • gwathdring says:

        While Disney is certainly an advocate of stricter policies and they own far too much and are a rather frightening entity for those who dislike monopoly, I do think the whole “mickey mouse extension” thing is overemphasized. Disney is not markedly more responsible for changes to US coypright law than other major players, and while I think it’s a bit silly, life + 70 years was the standard outside of the US well before the famous “Mickey Mouse” extension.

  4. SaintAn says:

    Dang, I’m going to save a lot of money boycotting and pirating games from these ESA corporations. I already boycott a few on that list. Shame more people don’t grow a spine and boycott them too.

    • April March says:

      “Boycotting” games from the ESA would pretty much mean to stop playing any games whatsoever, except for small completely independent devs.

      • Captain Narol says:

        There is far enough indie gems out there to keep any player happy, so it’s not a problem !

        Indie games are overall more interesting and innovative than games from AAA companies, just grow a spine and don’t fall for big money advertising and flashy graphics…

        It’s a matter of will, don’t be a sheep.

  5. vorador says:

    Not surprised at all. After all, they wouldn’t make money off it.

  6. Spacewalk says:

    When games from 2006 are old enough to be considered retro will there be any of them left to preserve?

  7. Frank says:

    It’s Entertainment Software Association, not Electronic Software Agency (which would be kind of redundant).

    • 111uminate says:

      Electronic Software Agency … LOL. Top notch reporting from RPS as usual.

  8. Dogahn says:

    Can i get a refund for my city of heroes purchases then? I think I’m entitled to one considering they shutdown my ability to play it.

  9. Emu says:

    Beyond brand confusion, the ESA argue that this would put non-commercial fan-run efforts into direct competition with massive publishers, limiting their ability to turn a profit.

    It will limit their ability to turn a profit because then they might have to actually put in more effort to produce games that people want to play and effort = time = money. But on the flipside, there are people who would get all excited about this, play their old game and realise that it was actually a horrible game to play compared to the current experience…

    • Vodka, Crisps, Plutonium says:

      Sounds like a class-action lawsuit case to me (although, there will never be enough claimants to bother with it)
      It’s like the book publishers would say “Oh, we won’t allow reprints of Count Monte Cristo anymore – it’s old and outdated, besides, new customers might come back to it instead of buying our Grade-A material new best-sellers like Burn for Burn or 50 Shades of Grey saga”
      Good lord, these entertainment service providers need to learn a lesson or two about fair use, public domains and everything within common sense that protects creative work accessibility for centuries, not copyright holders’ exclusive right to profit out of it and effectively ban it any day they want.

  10. malkav11 says:

    The “we’re already doing enough to preserve these” argument holds precisely zero water when it comes to online titles. I can think of one time in the entire history of gaming when a company brought back a defunct online game. That was Asheron’s Call 2. It’s dead again, along with the previous Asheron’s Call (which managed to hang on much longer than its sequel originally did). I’m not omniscient or possessed of a perfect and all-encompassing memory, so I may be missing out one or two other instances here, but let’s be real, it isn’t a thing that is being done on any serious level by the current copyright holders.

    I’m more sympathetic to the idea that they’re preserving offline games – it’s by no means perfect, and we can all think of important titles that are either being sat on or have fallen through the cracks as no one quite knows the status of the rights and for whatever reason either no one is willing to put in the work to figure it out or (in at least one memorable case) someone is, but at least one of the parties involved refuses to let them. But it’s gotten so much better in the last ten years. You scoff at the emulated catalog of the Switch, but efforts like GOG, Virtual Console, the pocket NES and SNES, the various output of Night Dive Studios, and others have collectively brought hundreds of out of print games back into circulation in one fashion or another. Huge swathes of these were quite rightly considered abandoned as recently as the 2000s or even in some cases the early 2010s. I’d still like to see some legal flexing so that we can rescue and further preserve a variety of titles, but it’s not nearly as pressing as the online games.

    • Vodka, Crisps, Plutonium says:

      It doesn’t have to have hundreds of concurent users to be considered alive. Some new players might be interested to just check out the online world, resided on some fan’s hosting server and be done with it.
      I love Aliens vs Predator 2, released as far back as 2001. Both of its single player and online and, guess what – I can still play online with a few mates nearly a decade after Sierra has pulled the plug.
      I also would love to check out Matrix Online world that I completely missed because ISP wouldn’t provide enough bandwidth for me at the time, but now I can’t because of current state of digital copyrighted media laws (i.e. publishers aren’t enforced to release the server code, once the game… sorry, “service” is shutdown etc… and the code might be so convoluted that fans might never be able to reverse engineer it)

    • Vodka, Crisps, Plutonium says:

      It doesn’t have to have hundreds of concurent users to be considered alive. Some new players might be interested to just check out the online world, resided on some fan’s hosting server and be done with it.
      I love Aliens vs Predator 2, released as far back as 2001. Both of its single player and online and, guess what – I can still play online with a few mates nearly a decade after Sierra has pulled the plug.

      I also would love to check out Matrix Online world that I completely missed because ISP wouldn’t provide enough bandwidth for me at the time, but now I can’t because of current state of digital copyrighted media laws (i.e. publishers aren’t enforced to release the server code, once the game… sorry, “service” is shutdown etc… and the code might be so convoluted that fans might never be able to reverse engineer it)

      • malkav11 says:

        I’m not really sure how your post relates to mine. Did you mean to reply to me? Because my point is that the rights holders are doing nothing to preserve online games, and your comment appears to be about how fans are preserving them, which I didn’t say anything about.

        But those efforts are exactly why the law ought to be changed to enable them to do so legally, and thus more easily.

        • Vodka, Crisps, Plutonium says:

          Yeah, I horribly misread your comment and thought the online experience isn’t worth preserving by any of the parties (publishers/museums/fans), because very few players are coming back to those after bringing them back to life.
          Consider my rant as solid agreement with point raised.
          As in “If somebody, no matter how few, want to revive dead online game – the least publishers can do is let them”

  11. Ellathar says:

    What a surprising decision there. It was like asking the NRA to condemn gun ownership

    • pepperfez says:

      Yeah, it’s hard to get extra-mad at an industry saying, “No, please don’t stop shoving that money in my pocket, I don’t mind.” The lawmakers who rigged the system so thoroughly in publishers’ favor bear the responsibility, but there’s so much money riding on endless copyright absolutism that there’s never likely to be a positive change.

  12. dethtoll says:

    I’ve said this before, and you will be unsurprised to hear it again, but: Fuck the ESA.