This week the Library of Congress and the U.S. Copyright Office revised its list of specific exceptions to the Digital Millennium Copyright Act, also known as the DMCA. Their guidance reaffirms the rights of software preservationists to circumvent digital rights management (DRM) software, in some cases expanding their ability to revive older games. It also opens the door, legally speaking, to do-it-yourselfers and electronics repair outlets to break DRM in pursuit of fixing hardware.
Section 1201 of the DMCA, which was passed in 1998 during the administration of President Bill Clinton, states that “no person shall circumvent a technological measure that effectively controls access to a work.” A subsequent section empowers the Copyright Office and the Library of Congress to compile a list of exceptions to that rule every three years.
The process of crafting that list of exceptions itself is complex, and has drawn in concerned individuals as well as lobbyists from all over the manufacturing space, including agribusiness and the automotive industry. In 2015, Wired famously called section 1201 itself “an unsustainable garbage train.” Yet here we are.
The same year that article was published, the list of exceptions broached the topic of video games for the first time. The Copyright Office and the Library of Congress gave “libraries and archives, as well as [...] museums” the right to circumvent DRM “so that video games can be preserved in playable condition.” This year’s list of exceptions reaffirms that right.
An additional section also calls out instances of DRM where online authentication is required in order to play games. Once a copyright holder shuts down authentication services, consumers now have the right to break DRM in order to play games.
The list of exceptions also includes new guidance regarding video game hardware, which is bundled into a provision covering farming equipment and automobiles. Effectively, after Oct. 28, when this new guidance goes into effect, consumers will have the legal right to break DRM restrictions to repair and maintain their game consoles.
There are still many variables in play, however. The guidance is new, and has yet to be tested in the courts. Edge cases are likely to arise in the coming months and years. That ambiguity is baked into the process, however, with these triennial revisions. The next update is due out in 2021.