Electronic Frontier Foundation And Entertainment Software Association Square Off Over Piracy

Yesterday, the Electronic Frontier Foundation (EFF) made waves on social media after posting allegations about the Entertainment Software Association (ESA). The EFF alleges that the ESA (which represents game publishers in the United States) is taking steps to curtail all preservation efforts in gaming, something that has become of greater concern as the medium ages.

Furthermore, the EFF says bluntly that the ESA is standing in the way of museums and archives seeking to preserve video game heritage. We reached out to the ESA, which provided us with the filing that prompted the EFF’s tirade.

According to the document, the EFF is seeking an exemption from section 1201 of the Digital Millennium Copyright Act (DMCA). This piece of the law governs anti-circumvention of hardware (colloquially called “jailbreaking”). 

The EFF is attempting to secure safe harbor for “abandoned software.” In service of that goal, it has crafted its own definition of what that term means.

According to the EFF, any piece of software with server-based functions that are shut down by a publisher or developer would be considered “abandoned” six months later.

The ESA points out in its comment on the EFF’s request that in order to create a user-run facsimile of the online services, console owners must modify their systems (as has been done before with games like Metal Gear Online). The EFF is leaning on a broad exemption under the guise of preservation, however the ESA rebuts that premise with the following passage from its comment on the request.

The proposed exemption would permit circumvention of video game access controls by any person in any context, as long as the servers were unavailable for at least six months. The proposed “preservation” and “archival” uses envisioned by EFF would appear to have the effect of superseding the object of the underlying work.

If the proposed exemption is granted, the evidence in this proceeding demonstrates that organizations or individuals—perhaps some well-intentioned, but others not—likely would try to use the guise of “preservation” or “research” to make highly-expressive, valuable copyrighted works available for free to the public to play online purely for entertainment purposes, regardless of whether they ever purchased a lawful copy of the video game. This “preservation” defense would become the centerpiece of any enforcement proceeding, regardless of the user’s actions, making it difficult for copyright owners to enforce their rights against circumvention for infringing uses.

Furthermore, the ESA points out that there is precedent that shows exemptions declined when “sub-optimal” archival choices (like video capture) are available. These less-than-ideal solutions, while in line with past exemption rulings, are not enough for the EFF.

“Games abandoned by their producers are one area where Section 1201 is seriously interfering with important, lawful activities—like continuing to play the games you already own,” the EFF states. “It’s also a serious problem for archives like the Internet Archive, museums like Oakland, California’s Museum of Art and Digital Entertainment, and researchers who study video games as a cultural and historical medium.”

The ESA provides evidence to the contrary. 

ESA and its members have participated in and supported multiple museum exhibitions and educational initiatives related to video games. For example, the Entertainment Software Association worked with the Smithsonian Institute to offer The Art of Video Games, which was one of the first exhibitions exploring the evolution of video games as an artistic medium.

The exhibit featured playable video games from different eras, including Pac-Man, Super Mario Brothers, The Secret of Monkey Island, Myst, and Flower. ESA also has partnered with GlassLab, an unprecedented research and development effort that is exploring the potential for existing digital games to serve as powerful learning environments and providing real-time assessments to improve student learning.

Proponents’ evidence of adverse effects is, at best, hypothetical. It is telling that EFF describes the activities of several museums, including the Museum of Modern Art, the International Center for the History of Electronic Games, and the Museum of Art and Digital Entertainment, in archiving video games, but fails to provide a single actual instance of any of these institutions having difficulty in their archival activities as a result of the DMCA’s prohibition on circumvention. Notwithstanding EFF’s assertion that “[k]eeping games playable is a central concern of the next generation of video game archivists and preservationists,” EFF does not—and indeed cannot—demonstrate that there is a need for circumvention in the next three years to alleviate this concern.

It is also fair to say that the ESA is going to act in the best interests of the publishers it represents. That means copyright infringement is going to be a significant concern. While the EFF’s definition of abandonment relies specifically to an arbitrary amount of time after server closure, it does not take into account intellectual property rights. “Because video game publishers do not “abandon” the intellectual property in their copyrighted works when discontinuing server support, and because the exemption request is overly broad and confusing, the proposed exemption should be denied,” The ESA writes.  

Ultimately, this issue is a fight between the legal rights of copyright holders and those that wish to speed owned works into the public domain. For more, you can read the entire ESA comment and the EFF’s extensive teardown of the Association.

[Source: EFF, ESA]

Our Take
The EFF seems to be running an end-around in an attempt to legalize console modding. Pirated software is widely available online if you know where to look, and mainstreaming mod chips would only increase the rate of theft. Especially since the EFF has failed to document any cases in which preservation or archival was impacted, it’s hard to see this as more than a ploy by that group.