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The legal battle for gaming's past

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A feud blew up this week between two major tech organizations: the Entertainment Software Association, a Washington, D.C.-based group that defends game industry interests, and the Electronic Frontier Foundation, a non-profit digital rights group best known for providing legal funds and support in events related to digital freedoms.

The first blow was struck when the EFF reached out to United States Copyright Office asking for "legal protection to game enthusiasts, museums, and academics who preserve older games and keep them playable." The EFF says that the Digital Millennium Copyright Act, a copyright law passed in 1998, specifically "creates legal difficulty" for "those who modify games to keep them working after the servers they need are shut down."

"the primary motivation for individual users to hack their video game consoles is to play 'free' (typically pirated) games"

In layman's terms: Let's say you own a gaming museum or even just a large personal collection that has historic value. When a publisher shuts down the online servers for one of your games, you may want to hack the console hardware in some way to allow it to continue being played. In this way online-only games or modes wouldn't be lost forever. But, according to the EFF, this technically isn't legal, which is why it reached out to ask for a special exemption.

The ESA disagrees. The industry organization wrote to the Copyright Office opposing this exemption, saying that "permitting circumvention of the access controls on video game consoles will increase piracy, significantly reduce users' options to access copyrighted works on video game consoles, and decrease the value of these works for copyright owners."

Later in the filing, the ESA says that "the primary motivation for individual users to hack their video game consoles is to play 'free' (typically pirated) games, movies and television programming, and music." As such, the ESA says that the argument that this exception might encompass "fair use" does not stick.

The EFF, meanwhile, says in a blog post on its website yesterday that the ESA is "opposing anyone who bypasses game DRM for any reason, no matter how limited or important." The EFF says anyone should be able to continue playing games abandoned by their producers, but also that "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" are being hurt by the ESA here.

Polygon Archive: We looked at a Museum of the Moving Image exhibition devoted to the preservation of Spaceware, the world's first computer game.

The ESA declined a Polygon request for further comment, instead pointing toward the filing to speak for itself. Within the filing, the ESA is careful to note its support of some historical efforts:

"Notably, the 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 BrothersThe Secret of Monkey IslandMyst, 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."

The ESA filing goes on to say that the EFF's "evidence of adverse effects is, at best, hypothetical."

In its exemption request, the EFF gathered comments from a number of sources, including museum directors, game industry IT workers and more. One example is Stanford University's Henry Lowood, who servers as the curator for the history of science and technology collection in the Stanford University Libraries.

"Preservation activities undertaken either by cultural institutions (museums, libraries) or individual researches usually become literally impossible when developers cease support of the technical infrastructure required to maintain these games," Lowood wrote in his statement for the EFF.

"Several historical and preservation activities conducted by the How They Got Game project at Stanford (which I lead) have been predicated on contact with players in the game world," he says later. "If there is no access to the game worl, it becomes impossible to work with the game community on preservation projects."

"this is the biggest threat to our history that has emerged since the DMCA."

Lowood says that potential solutions other than the exemption, such as getting permission from developers on a per-game basis, are "at best a short-term solution."

"The cost is not just lost game history, but lost cultural, technical and social history of the late-20th and early-21st centuries," Lowood concludes.

One game archivist, who wished to remain anonymous because they work in the industry, said of the ESA opposition to the exemption: "This is the most terrifying thing I've read in a very, very, VERY long time. And this is after years dealing with preserving games.

"We aren't preserving these things correctly," the anonymous source said. "And without the museums to rely on, this is the biggest threat to our history that has emerged since the DMCA."