Mystery Box!: The ESA, EFF, and Archiving

In a recent statement, the Entertainment Software Association ruled that tools employed to preserve old games constitutes hacking and is therefore illegal. This is in relation to the Digital Millennium Copyright Act which contains provisions that protect the copyright owners from monetary harm as a result of illegal distribution. Such a law punishes archivists who attempt to preserve games abandoned by their copywriter owners, including those who attempt to keep games running after official servers are shut down. The Electronic Frontier Foundation, an organization invested in the preservation of online rights, pushed for an exemption

Thankfully acquire a large number of MS-DOS  titles are available in archives.
Thankfully acquired a large number of MS-DOS titles, making them freely available to anyone with an internet connection.

to this rule for video game archivists. To this request, the ESA ruled that:

Proponents offer no evidence that users who hack their video game consoles do so for nonprofit archival, preservation, or educational purposes, nor that the use of the access controls is preventing any meaningful use of copyrighted works for these purposes.

Additionally, the ESA states that the profitability of an IP for the copyright holder is more important than the preservation of said IP:

In contrast, granting the proposed exemption would greatly disrupt the incentive of platform providers and copyright holders to continue making this copyrighted content available to the public through the video game consoles. Copyright owners of highly-expressive, valuable content may choose to distribute only lower cost content, or in some cases, not agree to permit distribution of their content at all if they are not satisfied that their content will remain secure from digital piracy on these platforms.

Denying the ability to preserve outdated and otherwise abandoned art is detrimental to any medium. Video games are hit even harder by this because of the specialized technology and software required to run them. When a server goes down, that game is, legally, nonexistent. Players cannot go back and experience a game after the server is down, because the hardware that allowed for its existence simply no longer exists, at least not legally. This isn’t to say that they don’t exist at all. Private servers, while skirting the law, are, to my knowledge, universally banned by End User License Agreements. World of Warcraft is a big example. where players pining for a specific period of time in the game’s life can, in essence, create a snapshot and play with with a few thousand players on their own private server. Of course, Blizzard explicitly sides against this, but that doesn’t seem to deter players.

The_Matrix_Online_CoverartWorld of Warcraft isn’t defunct, however, so preservation may not be as pressing as, say, The Matrix Online. In the end of MxO’s life, it enjoyed a relatively small, but dedicated, fanbase. So, when it went under, there was a group of a people who were, understandably, disappointed. And what did players do? Almost instantly they set out to recreate servers for the game, and now a simple Google search turns up free, cracked servers. Most games aren’t as fortunate, however, especially those on consoles. EA has a habit of shutting down the servers that enable features like leaderboards, stat tracking, and, you know, multiplayer. This is purely out of economic reason; when players start dwindling, or when the game is “too old,” EA no longer has a monetary incentive to keep it going. The ESA’s statement explicitly addresses that, stating that fan revivals infringe upon, nay damage, EA’s ability to profit off of these games. Problem is, there’s no reason to assume that EA’s going to find an economic benefit large enough to reviving NBA Live 2007. And while there’s also little reason to assume that a large number of players are going to go back to it either, it makes sense to allow them access to game when the title is no longer of interest to the developer.

None of this touches on legitimate academic settings, however. The EFF is primarily interested in enabling museums, schools, and general archives in their ability to preserve and study these games. The ESA is still unimpressed, arguing that any form of archiving constitutes hacking and is therefore illegal. This sets a dangerous tone. By declaring all variations of archiving illegal, it assumes hostility from any individual interested in preserving the medium. At the most emotional level, it spits in the face of the most invested parties. Archiving is vital to the existence of any medium, and video games are especially prone to being lost to the passage of time. Without taking the proper steps, games run the risk of fading from existence simply because companies don’t want to miss out on a possible source of money, no matter how small it may be.


English major, philosophy minor. Currently playing through his backlog and dabbling in D&D 3.5e.

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