Unsurprisingly, the Entertainment Software Association (ESA) filed a comment to the U.S. Copyright’s reopening of the argument of extending the DMCA exemption for abandoned games, to ones that are online only (such as MMO’s).
This additional exemption would legally allow archivists to create emulators (aka private servers) for MMO’s that have been closed down without fear of being subjected to the DMCA.
The ESA represents major companies like Activision Blizzard, Bandai Namco, Capcom, Electronic Arts, Epic Games, Microsoft, Nexon America, Nintendo, Square Enix, Tencent, Ubisoft, etc to name some of the most well known ones that have an impressive portfolio of franchises and the intellectual property associated with them.
The comment filed was unsurprisingly on the grounds of copyright claiming that the proposal “represents a substantial expansion of the existing game-preservation exemption that is a far cry from the serious preservation and scholarly use imagined by the Register in 2015.” Regarding the Museum of Art and Digital Entertainment’s (MADE) proposal, the ESA argues it would require “the creation of substitute game-service environments, violate anti-trafficking provisions, and dissolve any meaningful distinction between preservationists and recreational gamers, thereby inviting substantial mischief.”
This is actually hogwash because as more games begin moving towards this online only (as a service) deployment model, this effectively prevents anyone from being able to enjoy it again. This model and the terms of service we agree to (where the publisher/developer can stop both of those aspects at any time), is just cancerous to those who enjoyed a title, put a lot of time (and possibly money) into a game, only to have it all disappear with no further way to at least enjoy portions of it. Very few developers go through the trouble of releasing an offline local binary (with caveats of course where some game systems just won’t work) when their title is being shut down.
Furthermore, the rationale that this exemption would allow the substantial mischief (including the public flooding in to play them) is ridiculous because for most purposes, many titles were sunset because of the lack of players and thus the lack of ability for publisher/developer to profit from it. So all of this painstakingly created artwork and systems in a game, is effectively locked away from those in the minority who did enjoy and appreciated it. And games (MMO’s included) in and of themselves, are pieces of art in their own right which should have this ability to be preserved. Imagine if Leonardo da Vinci’s art could not be preserved where none of us would be able to appreciate them today (and others in the future). That is the situation with online only games where screenshots and videos will be the only things left (which is not the same as being able to actually play the game depicted in them).
As for the creation of substitute game-service environments, this proposal isn’t about being able to run a private server for the masses (since the DMCA exemption is specifically for preservation purposes). It’s meant to provide enough of the underlying functionality to allow the game to be played where the game client itself is connected localhost (127.0.0.1) to the server binary (like the TERA Rising private server emulator I setup). Currently, hobbyists have to mostly code the functionality themselves when creating private server emulators (since actual leaked official server binaries are rare). Many use packet capturing software as a starting point to capture opcodes/other data and then painstakingly go through that in order to recreate the basic functionality. To say the least, it is not a trivial process.
