Sat. Jan 28th, 2023
The US government grants a limited right to behind games

After nearly a year of debate and deliberation, the Library of Congress (LoC) has granted gamers and conservationists a limited legal method to restore access to games made unplayable thanks to defunct, abandoned authentication servers.

In new guidelines released today, the Librarian of Congress said gamers deserve the right to continued access to “local play” on games they’ve paid for, even if the centralized authentication servers needed for that game have been removed. So, for example, if Blizzard decides to remove the authentication servers it would need to create a fresh copy of Starcraft II online, players are now legally allowed to come up with a workaround that will allow the game to work on their PC.

The registry explained that the inability to bypass the TPM [technological prevention measures] would exclude all gameplay, a significant adverse effect, and that bypass to restore access would qualify as a non-infringing fair use,” the new rules read in part. Under the rules, such authentication servers are considered abandoned when the publisher publicly announces that it has ended support or when an unannounced server shutdown has lasted for at least six months.

However, the LoC imposed some important restrictions on this new legal right. First, gamers cannot legally work to restore online gameplay in titles that required a defunct central server to coordinate such play. Creating third-party matchmaking tools, the LoC argued, would necessarily violate the DMCA’s “anti-trafficking provision,” which prevents the widespread proliferation of tools that circumvent DRM and TPM. That means efforts like those to restore online gameplay on the Wii and DS are still illegal under the DMCA.

In addition, gamers are still not allowed to jailbreak a video game console to bypass an authentication server check. The LoC was apparently persuaded by the Entertainment Software Association’s arguments on this point, saying that “such jailbreaking is strongly associated with video game piracy” and should therefore remain prohibited by law.

However, the LoC has made an important exception to the console’s jailbreak rules for libraries and archives that want to keep games. These non-commercial, publicly accessible entities are allowed to “bypass TPMs governing access to video game console software when necessary to maintain a console game in playable form.”

In other words, a museum can now legally hack into a video game console’s firmware for the express purpose of ensuring that games remain playable for historical research purposes well into the future. That museum will still legally be unable to create replacement servers to continue playing online.

The Electronic Frontier Foundation, strongly advocating for these changes, gave qualified approval to the LoC’s moves. “We’re glad the Librarian of Congress has accepted our petition to bring some legal clarity to players, museums and archives that keep old games running,” EFF Senior Staff attorney Mitch Stoltz told Ars Technica. “This exemption helps preserve classic games in a playable form for future generations.”

“We are disappointed that the Librarian decided to limit the exemption to games that are not playable at all without an authentication server,” Stoltz continued, “because the heart of many games is the online multiplayer mode, and preserving multiplayer play would not should have happened under a legal cloud. This exemption is helpful, but section 1201 of the Digital Millennium Copyright Act is a disastrous law that needs urgent reform.”

Today’s ruling is only guaranteed to be in effect for the next three years, after which the LoC will have a chance to review its rules again. “It is absurd that we should spend so much time every three years filing and defending these petitions with the copyright office,” EFF legal director Corynne McSherry said in a statement. “But despite this ridiculous system, we are happy that we have won here, and that the basic rights to modification, research and tinkering have been protected.”

The LoC again rejected a related waiver request intended to allow players to jailbreak game consoles to facilitate playing home-built software. Even if there are legal uses for this type of jailbreak, the LoC has ruled that it should remain illegal because it “remains closely associated with video game piracy, undermining the value of console software as a secure distribution platform.”

Update, 11/2, 2:30 p.m.: News of the librarian’s decision came out late last month on October 27. Stan Pierre-Louis, Sr. VP and General Counsel of the game industry trade group Entertainment Software Association, eventually offered this response to an Ars request for comment:

“We are pleased that the Librarian recognized the very real challenges that would arise from circumventing technological protections in video game consoles. The librarian’s decision rewards the collaboration between the gamer and those who create fantastic interactive experiences. Online games and platforms will continue to attract investment and provide entertainment to millions of gamers, and gamers and conservationists will have appropriate access to video games that are no longer supported by game makers.”

By akfire1

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