EFF files DMCA exemption requests

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EFF files DMCA exemption requests...

EFF files DMCA exemption requests, including 'abandoned video games'

Filings look to rescue old games from anti-circumvention provisions, five other requests

The Electronic Frontier Foundation (EFF) has filed six Digital Millennium Copyright Act (DMCA) exemption requests with the US Copyright on November 3 as a part of the three-year process to address revisions to the act. All six requests were filed in an attempt to give users basic access to software and devices, with one request looking to give consumers a way to play games abandoned by developers and publishers.

"The DMCA was supposed to help protect against copyright infringement, but it's been abused to interfere with all kinds of lawful activities that have nothing to do with infringement," said EFF Intellectual Property Director Corynne McSherry. "Software is in all kinds of devices, from cars to coffee-makers to alarm clocks. If that software is locked down by DRM, it's likely that you can't tinker, repair, and re-use those objects without incurring legal risk."

US Code Section 1201 added under the DMCA is the source of the issue, as it puts provisions in place to block the circumvention of "technological protection measures." Under Section 1201, it's illegal to "avoid, bypass, remove, deactivate or impair" any technological measure in place that controls access to copyright-protected works "without the authority of the copyright owner." There are very few exceptions, mainly tied to education, research or for certain classes of works.

One of the more interesting exceptions the EFF filed involved "abandoned video games." Many games require online access for play or to call home to digital rights management authentication servers, but once a publisher or developer decides to stop supporting it, people are left with something that's no longer accessible. The EFF believes that allowing an exception for any alteration of these abandoned games gives owners a chance continue playing their legally-purchased games. In addition, it serves "archivists, historians, and other academic research who preserve and study video games" but currently sit in a gray area due to Section 1201.

The short-term issue is that those people trying to alter the game in order to continue playing -- as seen with the shutdown of Gamespy and Nintendo ending Wi-Fi support for some consoles -- run the risk of being in violation of the DMCA. Several communities have started to return functionality to these games to allow outside servers, such those around Halo: Combat Evolved and titles including Mario Kart for the Nintendo DS. The EFF specifically points out that in the case of games like Mario Kart Wii, pieces of the game must be reverse engineered "to replicate the communications that the client expects to receive from the servers."

Such alterations and uses wouldn't be infringing, argues the EFF, but could be considered free use as derivative works are created in the process of accessing the abandoned games. Since it's an alteration of an owned copy, it can also be considered a noncommercial purpose, lending additional support to the idea of fair use. The amount of the copied works greatly depends on the type of circumvention required, but as the alterations are the minimum amount necessary to make it playable, fair use is again supported. The EFF brings up a final point in favor of fair use, in that there is no market harm in circumvention of abandoned games, since the market vanishes once the work is no longer supported.

What's disappointing is that the EFF specifically points out that this exemption won't apply to games that have "persistent worlds" where data is stored on the developer or publisher server, rather than on the client-side. In the request, it's stated that the "exception would not apply to massive multiplayer online (MMO) role-playing games such as World of Warcraft or Wildstar." Given that MMOs are shuttered with increasing frequency and leaving players orphaned, it's odd that the genre is left out. When MMOs are shut down -- such as Cryptic Studios' City of Heroes or more recently Electronic Art's Warhammer Online: Age of Reckoning -- players are generally left with little recourse other than walking away.

The other five filings hit a range of topics, including two for accessing software in cars for maintenance. The EFF is also seeking an extension of the smartphone jailbreaking exemptions, but also asks that it be extended to tablets and other mobile computing devices. The final exemptions look to partially expand and renew previous exemptions for remixing video segments from DVDs, Blu-Rays, and streaming services.

http://macnn.com/rd/321334==http://www.electronista.com/articles/14/10/02/tests.reveal.keylogger.information.unencrypted.when.sent.software.is.unreliable/

http://www.electronista.com/articles/14/11/04/filings.look.to.rescue.old.games.from.anti.circumvention.provisions.five.other.requests/