The UpStream

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

posted Wednesday Jan 17, 2018 by Guest Blogger

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

Amazon Might Have Given Up on Google, Creating YouTube Competitor

posted Thursday Dec 21, 2017 by Scott Ertz

Amazon Might Have Given Up on Google, Creating YouTube Competitor

A few weeks ago, the animosity between Google and Amazon hit a new level, when Google announced they would pull YouTube support for Amazon products, such as the Echo Show and FireTV. This was in response to Amazon refusing to carry Google products, such as Chromecast, in their online store, and not supporting the technology in Amazon Prime Video.

The company agreed to resume sales of Chromecast devices, and also added Apple TV devices back to its lineup, but it is unclear if this will change Google's policies. This week, Amazon responded, by way of a handful of patent filings and domain registrations. Two trademarks were filed: AMAZONTUBE and OPENTUBE. Both of these names are backed up by domain names:, and

At first, these names seem to suggest that Amazon has decided to forego negotiating with Google, but instead compete with them on a new front. It would not be out of the question, as Amazon owns Twitch, one of the livestreaming services for gamers. Adding another user-generated video platform would be a natural transition.

The other possibility, which could be more likely, is that Amazon is going to build their own YouTube client for their platforms. A plan like that would explain the highly derivative nature of the name, which includes "Tube," a suffix used mostly by Google and porn sites. Unless Amazon is truly not trying, chances are we are looking at an Amazon-built, 3rd party interface for YouTube, specifically for Amazon devices. This would allow Amazon to get YouTube capabilities back onto their devices without having to negotiate with Google, but instead use the highly capable YouTube API to circumvent Google entirely.

Microsoft tried a very similar tactic, building their own YouTube app for Windows Phone when Google refused. Google eventually pulled Microsoft's developer key after Microsoft included a feature that Google disagreed with, effectively killing the app. Amazon could face a similar fate; after building and releasing the app, Google could easily disable it with a single keystroke. Amazon is playing a potentially dangerous and expensive game with Google, who has never been afraid to be vindictive.

Eric Schmidt, Alphabet's Executive Chairman, To Step Down

posted Thursday Dec 21, 2017 by Scott Ertz

Eric Schmidt, Alphabet's Executive Chairman, To Step Down

For the past 17 years, one man has sat at the top of the pyramid that is today known as Alphabet, and was once known as Google: Eric Schmidt. He joined the company in 2001 as the executive chairman of the board of directors, but was quickly made CEO. After Larry Page's return to the company and claiming of the CEO title, Schmidt returned to the executive chairman role, where he has stayed since.

This week, the company announced that, as of the January meeting of the board of directors, Eric Schmidt would be stepping away from the executive chairman position. He will not be leaving the company, however, instead remaining on the board and taking a position of technical advisor. No interim chairman has been announced, and the company has decided that a new chairman would no longer retain the executive position, but instead simply chair the board.

Schmidt has overseen big changes at the company, including the restructuring that resulted in the renaming of the corporation to Alphabet. He brought Android and Nest under the company's umbrella, and made Chrome OS a force, even if only in education. He also oversaw flops, such as the Google+ integration into YouTube and Google Buzz, which was a privacy nightmare.

Speaking about the transition and its timing, Schmidt said,

Larry (Page), Sergey (Brin), Sundar (Pichai), and I all believe that the time is right in Alphabet's evolution for this transition. The Alphabet structure is working well, and Google and the Other Bets are thriving. In recent years, I've been spending a lot of my time on science and technology issues, and philanthropy, and I plan to expand that work.

While one explanation is that he wants to spend his life like Bill Gates, creating foundations and changing the world, it's hard to ignore the timing. Google and Amazon have become vocal, public enemies, fighting on everything from online product assortments to YouTube availability. Countries all over the world, including their home base of the United States, have begun to grow distrustful of the company and its intentions. There are no strong indications that Schmidt might have been asked to leave his position because of the company's hardships, but with waning trust from consumers, the industry and global governments, a change like this would not be unreasonable.

Nintendo Power is Reborn as a Podcast

posted Thursday Dec 21, 2017 by Scott Ertz

Nintendo Power is Reborn as a Podcast

In the 1990s, one of the most loved videogame brands was Nintendo Power, the Nintendo-focused magazine. Some great content, including interviews and game announcements were published in the magazine. It was so popular, gameshows on Nickelodeon used to give subscriptions away as prizes. Unfortunately, the magazine was shutdown in 2012, seemingly off into videogame history.

This week, Nintendo Power was reborn, but not as a magazine. Instead, this time the brand is reborn as a podcast, published officially by Nintendo of America. The new series is hosted by Chris Slate, who served for 5 years as Editor-in-Chief of Nintendo Power, and is now the corporate communications manager of Nintendo of America.

The series is currently available on Apple Podcasts and SoundCloud, which we'll come back to in a moment. The inaugural episode focuses on Nintendo's 2017, which has been a great turnaround year for the company, as well as The Legend of Zelda: Breath of the Wild, featuring an interview with producer Eiji Aonuma and director Hidemaro Fujibayashi.

The problem here is that there is no word as to how serious the company is about the Nintendo Power renaissance. The idea that Nintendo would commit enough resources to produce a weekly show is unlikely, as much as fans might want that. Given the publication's previous frequency, it would not be absurd to believe that they will publish episodes on a monthly basis.

The fact that the series is currently hosted on SoundCloud, however, is an indication that the company itself has not committed to anything past the initial episode. Professional podcasts do not host their content on a non-podcast host like SoundCloud; in general, that is reserved for hobbyists, as these platforms do not perform well, or lend a positive image to the series itself.

Nintendo fans will all enjoy this single episode, but before we see any further episodes, hopefully Nintendo will decide to get serious about what they are doing.

Apple Is Slowing Your Older iPhone, Is Getting Sued

posted Thursday Dec 21, 2017 by Scott Ertz

Apple Is Slowing Your Older iPhone, Is Getting Sued

For many years, iPhone users have complained about the degrading nature of the phone's performance. As the phone gets older, and particularly as newer models are released, users have noticed that their phones get significantly slower. Apple has denied for years that they are purposely slowing down older models, but that assertation, for at least the last year, has not been true.

Last week, the team over at Geekbench tested the theory that older iPhones run slower than newer models. Using the stats recorded when a handset was brand new and comparing it to stats taken after being well-used, they saw exactly what was expected: the well-used handset ran significantly slower than it had when it was brand new. The testers believed they had a lead, and replaced the battery in the phone and re-ran the tests. It turned out, with the new battery, the phone began running close to brand new specs.

After publishing their findings, and receiving major coverage of their tests, Apple finally responded to the claims, admitting that they had begun slowing iPhones a year ago. In a statement, the company said,

Our goal is to deliver the best experience for customers, which includes overall performance and prolonging the life of their devices. Lithium-ion batteries become less capable of supplying peak current demands when in cold conditions, have a low battery charge or as they age over time, which can result in the device unexpectedly shutting down to protect its electronic components.

Last year we released a feature for iPhone 6, iPhone 6s and iPhone SE to smooth out the instantaneous peaks only when needed to prevent the device from unexpectedly shutting down during these conditions. We've now extended that feature to iPhone 7 with iOS 11.2, and plan to add support for other products in the future.

As would be expected with a revelation like this, following repeated denial from the company and a secretive release of this new "feature," two iPhone owners have filed suit against Apple. Plaintiffs Stefan Bogdanovich and Dakota Speas, students at USC's law school, are seeking class action status for the case, which alleges that Apple interfered with the performance of users phones without their permission or knowledge.

If Apple is truly slowing older phones because of battery issues, it brings back a popular complaint about Apple's devices, and subsequently other manufacturers' devices: removable batteries. If Apple designed their devices to allow users to replace their batteries as they age, as all phones once allowed, then Apple would not need to dedicate their increasingly limited software development time to slowing their users devices. It would also increase user satisfaction, with users getting to use the whole device they purchased, and maintain them longer.

Walt Disney Company to Acquire Twenty-First Century Fox For $52.4 Billion

posted Sunday Dec 17, 2017 by Scott Ertz

Walt Disney Company to Acquire Twenty-First Century Fox For $52.4 Billion

After months of speculation, and several interested parties, the competition for Twenty-First Century Fox has come to the end, with The Walt Disney Company coming out as the new owner. The company will be paying $52.4 billion in Disney shares for the majority of the existing company. Remaining with the former owners will be the news and sports businesses, including Fox News Channel, Fox Business Network, FS1, and FS2. Those pieces will be spun off into a new corporation, cleverly named "Fox." Rupert Murdoch intends to eventually re-integrate these properties into News Corp.

The rest of the company will become a part of Disney, including the film rights to already Disney-owned X-Men, Fantastic Four, Silver Surfer and Deadpool, as well as Avatar, which Disney recently integrated into their Animal Kingdom park in Orlando, Florida. In addition, the company will be in charge of major franchises, such as The Simpsons.

As well as content, Disney will receive distribution, in the form of FX, FFX, National Geographic and regional sports networks. The regional networks can be brought under the ESPN brand, expanding Disney's already heavy focus on sports, but bringing their knowledge to local teams. Disney will also take control of Fox's interests in Star TV, Sky and, most importantly, Hulu. Combined with their existing stake in the company, Disney will have a 60% controlling interest in the popular streaming service.

Having a controlling interest in Hulu could change the company's announced intentions to create their own Disney-branded streaming service, which would serve only Disney-branded content. They could decide to, instead, place their content into Hulu, possibly making a Disney package, similar to Hulu's existing Showtime package. The combined content and distribution of Hulu can help Disney compete against Netflix's pledged goal of original content over the next few years.

All of this hinges on regulatory approval. Several US and foreign government agencies will have to sign off on the merger. If it is not approved, for any reason, then Disney will still keep Fox's existing interest in Sky in Europe. If it is approved, one condition of the sale is for Disney CEO Bob Iger to remain past his planned retirement to oversee the integration of the companies, extending his tenure into 2021.

We're live now - Join us!



Forgot password? Recover here.
Not a member? Register now.
Blog Meets Brand Stats