The Electronic Frontier Foundation has filed exemptions to the DMCA to address noninfringing uses of circumventing DRM.
Update 2: Kendra Albert, the former legal intern at the Electronic Frontier Foundation who researched multiplayer and gaming authentication servers during her internship, sees the exemption as one that benefits everyone: companies that may no longer be able to run the servers for old games can see people still playing their games, and the people playing the games can do so without fear of the DMCA. Albert, who has been playing video games since she was a teenager, noted some of the early DMCA section 1201 case law comes from video games. In February 2002, Blizzard filed a DMCA safe harbor takedown against BnetD, a reverse-engineered software package. BnetD allowed users to play games on their own servers. The court ruled in favor of Blizzard, stating BnetD was in violation of anti-circumvention provisions of the DMCA.
In this case, Albert said, "DMCA 1201 stands in the way of the very kind of long-term player investments we should be most interested in encouraging, and we felt that there's a strong case to be made that modifying these games is fair use."
Albert also noted that the DMCA has a chilling effect on scholarship and archiving of games as librarians and archivists do not want to face being sued for trying to preserve a game with abandoned servers.
Update: Electronic Frontier Foundation staff attorney Mitch Stoltz told The Escapist the EFF's inspiration for filling the six exemption requests was an examination of creative communities inhibited by the section of the DMCA that addresses circumvention. Stoltz is confident that the exemption request allowing changes to game software to allow third-party servers in abandoned games will be successful because it "meets all criteria" the Librarian of Congress needs for an exemption to the DMCA.
Original story: The Electronic Frontier Foundation filed six exemption requests to the U.S. Copyright Office for modifications to the Digital Millennium Copyright Act. The EFF argues the DMCA has made lawful activities become copyright infringement. One of these exemption requests addresses online games that developers have shut down.
Under the DMCA, modifying an old online game to make it playable after an authentication server has been shut down qualifies as copyright infringement. In order to keep playing a game that a developer has abandoned, players eliminate checks to authentication servers or modify access controls in the software for switching to third-party servers. The EFF's exemption request would make it legal to modify these games for the purposes of "continued play, preservation, research, or study." The EFF argues these uses constitute "fair use."
"Persistent world" games like MMOs are not included in this petition for exemption.
The other exemption requests address DRM for software in all kinds of devices, such as cars, coffee makers, and alarm clocks, where the DMCA makes tinkering, repairing, and reusing objects illegal. The EFF also would like the Copyright Office to renew previous exemptions for jailbreaking smartphones, extending those exemptions to tablets and other mobile devices.
"These requests highlight some of the ways Section 1201 of the DMCA has given the Librarian of Congress a veto on innovation and creativity," EFF staff attorney Mitch Stoltz said in a statement.
Section 1201 of the DMCA is known as the anti-circumvention provisions. This is meant, but has failed, to stop online piracy. However, circumventing DRM locks for noninfringing uses can result in lawsuits. Once every three years, the U.S. Copyright Office convenes to review proposed exemptions to the DMCA's ban on circumvention.
The EFF calls this exemption process "hugely flawed." Even when exemptions are passed for non-infringing uses of copyrighted material, those exemptions must be renewed or expanded as technology continues to develop.
"Technologists and artists should not have to get permission from Washington before they create, learn, and innovate, especially when the window to seek permission only comes once every three years," EFF staff attorney Kit Walsh said. "This rulemaking isn't the 'safety valve' we need to defend free speech and innovation from Section 1201. But until the law is fixed, we'll do our part to fight for those rights before the Copyright Office and in the courts."