A group of video game preservationists wants the legal right to replicate "abandoned" servers in order to re-enable defunct online multiplayer gameplay for study. The game industry says those efforts would hurt their business, allow the theft of their copyrighted content, and essentially let researchers "blur the line between preservation and play."

Both sides are arguing their case to the US Copyright Office right now, submitting lengthy comments on the subject as part of the Copyright Register's triennial review of exemptions to the Digital Millennium Copyright Act (DMCA). Analyzing the arguments on both sides shows how passionate both industry and academia are about the issue, and how mistrust and misunderstanding seem to have infected the debate.

The current state of play

In 2015, the Librarian of Congress issued a limited exemption to the DMCA , allowing gamers and researchers to circumvent technological prevention measures (TPMs) that require Internet authentication servers that have been taken offline. Despite strong pushback from the Entertainment Software Association at the time , the Register of Copyrights argued that the abandonment of those servers "preclude[s] all gameplay, a significant adverse effect."

But while getting around defunct server authentication checks in games is now legally OK in most cases, the Register stopped short of allowing gamers and researchers to recreate the centralized gameplay servers that are needed to play many games online. That's why the Museum of Art and Digital Entertainment (MADE) is leading the charge for what it calls a "modest" expansion of the DMCA exemption in order to "preserve abandoned online video games in playable form."

While existing law allows for easy preservation of local multiplayer games and LAN titles, MADE argues the law needs to "address technological change" by recognizing that many if not most multiplayer games these days are only playable via centrally controlled online servers. And when the servers needed to play these online games go down, MADE argues, the games themselves "turn to digital dust" and become practically useless to libraries, archives, museums, and others seeking to preserve them for future generations.

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Making these games playable after those original servers go down often requires breaking apart existing client and/or server code, in order to "implement new, interoperable software components as part of the game’s architecture," MADE points out. But those efforts are illegal under the DMCA, meaning museums and other legitimate preservation groups can't assist in grassroots hacking efforts like those trying to restore stripped online functionality to Wii and Nintendo DS games

The Entertainment Software Association (ESA), which represents many major game publishers, argues that simulating proprietary server code in this way requires copying large parts of the "expressive nature" of the games in question—server-hosted content that often was never distributed to the public. MADE argues, though, that restoring online functionality focuses more on the "functional aspects" of the game, which is usually allowed under fair use exemptions.

Preservation or “recreational gameplay”?

Those legal technicalities aside, MADE argues that simply being able to view videos and read descriptions of "abandoned" online gameplay is not enough for researchers. Being able to actually play online games as they were originally designed can be useful for anthropological studies, psychological experiments, cultural appreciation, and even for design students looking to see how technical limitations were overcome, the museum argues.

The ESA, though, thinks this argument "should be viewed with considerable skepticism," pointing out that MADE "cites no specific example of serious scholarly work following from its preservation activities. To the contrary, it is clear from MADE’s website that at its museum, public recreational play predominates over serious scholarship."

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This gets to the heart of the ESA's argument against an expanded DMCA exemption; namely, the industry's fear that such efforts will go beyond mere "preservation" in research institutions and expand to allow the general public to log in to these old games once again. While MADE says explicitly in its comment that "preserved game architecture will not be distributed or made available to the public 'outside the premises' of a library, archives, or museum," the ESA sees this as improbable, to say the least.

"It is unlikely that anyone, including proponents, would invest thousands of hours of labor over a period of years merely because a scholar someday may wish to study the game," the ESA writes. "To the contrary, it is likely that the institutions and volunteers involved want to enable recreational gameplay."

"The proposal to enable online gameplay highlights that the proponents’ real goal is to allow a public audience—and not just serious scholars—to play online video games," the industry argument continues. "There is abundant evidence that when the proponents desire to enable play of online video games, their vision is not to allow a university faculty member and her graduate student to play an online game from a reading room populated by scholars. They appear interested in allowing the public to play video games."

The “affiliate” loophole?

The ESA fears a new exemption for these games could lead to an "online arcade" where defunct online games could be played outside the confines of a museum. It points to MADE's recent effort to revive the long-lost LucasArts MMO Habitat , which led to the game being made available to the public (with the copyright holder's cooperation and blessing, to be clear).

What's more, the ESA is concerned about over MADE's request to expand the DMCA exemption to "affiliate archivists" who don't work directly for a preservation institutions. MADE describes these affiliates as the hobbyists and volunteers that help break open old code and create emulators that allow defunct titles to function again after the original publishers abandon them. MADE says it wants to be able to work with such affiliates "under supervision... in line with good preservation practice."

The ESA, though, worries this would open a large loophole to let the public flood onto these restored gameplay servers. Under the exemption, the ESA warns, museums and institutions could simply start calling vast swathes of the public "affiliates" and thus give them access to the renewed online gameplay. Those "affiliates" would have no legally enforceable restrictions, the ESA argues, which could "invite substantial mischief."


"It is reasonable to expect that if this proposal were adopted, affiliates would be gamers who want to play video games," the organization writes. MADE's proposal fails to "even approximate comparable protections" to ensure that these outside contractors aren't simply seeking to "promote infringement."

Who controls the “vault”?

Would restoring defunct online games hurt the bottom line for game publishers? MADE argues, by definition, that "there is little-to-no market for unsupported, unplayable titles." By abandoning the online servers for a game, MADE writes, the publisher has "essentially vacated" the market for the title, proving they saw "little-to-no commercial value" in it.

In its response, though, the ESA argues that "the decision whether to discontinue or reissue particular game titles generally should lie with the copyright owner." Just because an online server is down for now, they argue, doesn't mean the original publisher won't want to restore that server in the future for their own monetary gain. This kind of renewal is rare, but it has happened for games like Star Wars Battlefront 2 and Blizzard's eventual restoration of "vanilla" World of Warcraft.


"Re-release cycles have long been common in the markets for motion pictures, television programming and sound recordings," the ESA points out. "If a cable TV network decided to discontinue the service of providing a particular channel, nobody would think that it was noninfringing for libraries and fans across the country to band together to reproduce copies of the shows... and recreate for a public audience the experience of watching the channel as such; yet that’s effectively what is being proposed here."

Worse than that, though, the ESA argues that re-enabling online features for old games "places the copyright owner in the position of having its current releases and rereleases compete with unauthorized access to its older games, and also may diminish consumer demand for subscriptions to legitimate video game networks." In other words, if multiplayer access is restored for these older games, people might be less likely to buy or subscribe to newer ones.

The complete arguments go into much more arcane detail over the definition of a "transformative use," the possible consequences of encouraging jailbroken consoles to re-enable online play, and what exactly counts as a "non-commercial" preservation. Reading over both arguments, though, it feels like preservationists and the industry are talking past each other a bit.


Where one side seeks limited, private access to historical gameplay, the other fears a slippery slope leading to public distribution of hacked-open servers. Where one side see games sitting unplayable for lack of attention from their makers, the other sees a valuable back catalog "vault" it should be able to open and close at will.

The Copyright Office will host another round of public comments and public hearings on this issue in the coming months before making its recommendations for any new exemptions by October. Based on the arguments here, the results of that decision are likely to be heavily disappointing for one side or the other.