Among a wide range of new DMCA exemptions recently approved by the Librarian of Congress (LoC) is a limited legal right for video game preservationists to restore online games that have been “abandoned” by their creators to a playable form. But the new rules come with a number of caveats that could require some significant hoop-jumping from affected research institutions.
Back in 2015, the Librarian of Congress granted libraries, archives, and museums (and members of the public) the right to circumvent defunct DRM protections that require “phoning home” to authentication servers that are no longer maintained by the original game maker. That existing exemption, which also allows research institutions to use hack console firmware to get around such DRM, has been extended as part of the triennial review of such rules.
But the 2015 exemption stopped short of letting research institutions relaunch versions of the centralized gameplay servers required to play many online-focused games. The copyrighted “audiovisual content” that was originally stored on those servers was still protected by the DMCA, the LoC argued three years ago.
In new rulings issued last week, though, the LoC has expanded that exemption significantly. Research institutions can now launch their own versions of video game servers used for “administrative tasks beyond authentication, including command and control functions such as tracking player progress, facilitating communications between players, or storing high scores,” as the National Telecommunication and Information Administration put it.
Such an exemption will “enable future scholarship by enabling researchers to experience games as they were originally played and thereby better understand their design or construction,” the LoC writes. Further, such activity is “unlikely to harm the market for video games.”
Caveats and limitations
There are some important limits to this newly offered right, though. For one, research institutions need to have “lawful possession” of the original server code before they relaunch any such server. Reconstructing that server code through emulation, reverse engineering, or other means (as is the case with many fan-run efforts) is still not legally allowed.
Unlike the relatively easy-to-acquire client software, server code for online games is usually tightly controlled by the original publishers. That means, even with this exemption, research institutions will usually require the cooperation of those original game makers to get “lawful possession” of the code needed to run these old games. That could be a problem if that original publisher is defunct, uncooperative, or simply hasn’t held on to that code.
The LoC also ruled that any such restoration and play of online games must take place completely within “the physical premises of the eligible library, archives, or museum.” Earlier this year, institutions like the Museum of Art and Digital Entertainment (MADE) had argued that a class of “affiliate archivists” should also be able to access such games from remote locations, for purposes such as anthropological studies, psychological experiments, or cultural appreciation.
The Entertainment Software Association argued strongly against that “affiliate archivist” exemption, saying such a move would “promote infringement” by opening these games up to volunteer affiliates who were not legitimate researchers but merely “gamers who want to play video games.” The LoC agreed, writing that “the proponents’ institutions’ practices seemed to lack appropriate protective guidelines to govern such volunteers’ use of copyrighted materials.”
Limitations aside, it’s nice to see the Librarian of Congress being receptive to the arguments of preservationists in this case. This is the kind of ruling that will make it easier for museums and other institutions to follow in the footsteps of MADE’s 2016 restoration of LucasArts’ long-lost Habitat MMO.
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