DMCA Regulations on Abandoned Videogames: A Step toward Videogame Preservation or a Path toward Legal Piracy? - The UpStream

When you buy a book at the store, you expect to read it from start to finish, without any interruption or pages missing, for as long as you want. Often times, revisiting the stories from the book brings back fond memories and nostalgia that you hope to share one day with your kids, family and friends. Unfortunately, this is not the case when you purchase abandoned videogames. When these games are shut down, they often disappear for good, erasing big portions of gaming history forever.

This is because the Digital Millennium Copyright Act's ("DMCA") anti-circumvention provisions (17 U.S.C. § 1201) prohibit consumers from circumventing copyright protection measures put in place on games or any other digital media. However, the United States Patent and Trademark Office ("USPTO") has proposed a set of exemptions to the DMCA that would allow gamers to keep abandoned games running.

What is DMCA § 1201 Exemption for Videogames?

In 2015, the USPTO enacted an exemption to Section 1201 that directly impacts the game industry: an exemption for museums, libraries and other archival efforts circumventing the DMCA to preserve (in a playable state) games that require one-time server checks that are no longer available. This exemption allowed for the circumvention of authentication servers in order to render games playable (often called "jailbreaking"), so long as the game content is stored on the player's computer or console. Although there were flaws in the exemption, it was a victory for the videogame archiving community. Additionally, this exemption must be renewed by the USPTO on a triennial basis.

As it currently stands now, the DMCA exemption does not expand to multi-player games; however, the Museum of Art and Digital Entertainment (MADE) petitioned the USPTO to expand the exemption so that it covers multi-player games and allows people affiliated with them the ability to play.

These new set of proposed exemptions to the DMCA has stirred much debate in the gaming industry. Proponents claim that they should be able to 'play the videogames they have already paid for' and that keeping it illegal to fix broken, abandoned games effectively forces people to keep buying newer releases. Whereas opponents argue that the proposed exemptions would, in effect, eviscerate virtually all forms of access protection used to prevent videogame piracy. Specifically, the Entertainment Software Association (ESA) submitted oppositions to the exemption to the USPTO, stating that, "(h)acking videogame access controls facilitates piracy and, therefore, undermines the core anti-piracy purposes of (the DMCA)."

On October 26, 2017, the UPSTO reviewed all submissions regarding the new set of proposed exemptions to the DMCA and agreed to continue to preserve old videogames, and thus recommended that all of them be renewed. The USPTO indicated that it didn't "find any meaningful opposition to renewal." At this point, the USTPO is now seeking public comments on the new set of proposed exemptions to the DMCA.

What Happens Next?

Whether or not the new set of proposed exemptions to the DMCA benefits gaming archivists and historians alike - or creates a new path toward legal piracy - a good place to start is to submit public comment regarding this topic to the USPTO. The USPTO has initiated three rounds for public comments, with the first round due on December 18, 2017. If the new set of exemptions to the DMCA gets approved, then your kids might get to play some of the old videogames you once enjoyed as a child someday.

Leia V. Leitner is in an attorney at Watson LLP where she counsels businesses on cybersecurity and other aspects of technology law. She may be reached at (407) 377-6634 or by email at leia@watsonllp.com.