A major game industry trade group is fighting back against a proposed DMCA exemption that seeks to give gamers the right to modify games with abandoned online servers in order to restore online gameplay and functionality. The Entertainment Software Association (ESA), with support from the Motion Picture Association of America and Recording Industry Association of America, argues that the proposed exemption would amount to "enabling—and indeed encouraging—the play of pirated games and the unlawful reproduction and distribution of infringing content."

The argument centers on a proposed exemption to the DMCA's DRM circumvention rules for games whose publishers have abandoned the online servers that represented the only official way to access online gameplay or authentication services. Last November, the Electronic Frontier Foundation (EFF) formally requested that users of such games be legally allowed to modify software and hardware to get around those dormant authentication server checks or to restore online gameplay through third-party servers.

In a 71-page brief, though, the ESA says that these kinds of workarounds can't be separated out from the wider piracy-prevention functions that the DMCA protects against. To add third-party server support to a console game, for instance, the ESA argues that a user has to first get around access controls built into the software and the hardware itself to modify the code. "Consequently, the proposed exemption would, in effect, eviscerate virtually all forms of access protection used to prevent video game piracy."

"Hacking video game access controls facilitates piracy and therefore undermines the core anti-piracy purposes of [the DMCA]," the ESA writes. "Hacking the video game access controls requires, by definition, hacking of the video game console or similar device in order to play the hacked video game. Once the access controls for the video game console are hacked, regardless of the purported purpose or intent of the hacker, any content, including pirated games, can be played on a video game console."

For single-player games, the ESA says, "a user almost never needs to conduct ongoing video game authentication checks" with a server to maintain access to the game. Even for multiplayer games, though, the ESA notes that online services offered by game publishers go beyond what the EFF argues are "core" multiplayer gameplay functions. Microsoft and Sony, for instance, charge annual fees for services like leaderboards, downloadable content, chat, and achievements through Xbox Live and the PlayStation Network, separately from the purchase of the game.

"Contrary to the proponents’ claims that they should be able to 'play games that they have already paid for,' circumvention would enable users to avoid paying for a variety of online services, including network-based multiplayer gameplay, and get a better deal than they bargained for... users generally are not entitled to access online services (including multiplayer gameplay) as a result of purchasing a game," the ESA says.

While the EFF wants a game's online infrastructure to be considered "abandoned" six months after centralized servers are taken offline, the ESA argues that such games are still under copyright and may still have a legitimate commercial life going forward. "It is not uncommon to improve upon or re-introduce a game at a later time or to iterate upon the software after server support has ended to obtain a return on this valuable investment," the ESA writes. "Allowing circumvention to enable access to third-party game servers after a video game publisher ends online support harms the market for these new copyrighted works."

Finally, the ESA argues that by allowing "any person in any context" to circumvent server infrastructure, the requested exemption is too broad for the intended purposes of archival and preservation that the EFF emphasizes in its request. "If the proposed exemption is granted, the evidence in this proceeding demonstrates that organizations or individuals—perhaps some well-intentioned, but others not—likely would try to use the guise of 'preservation' or 'research' to make highly expressive, valuable copyrighted works available for free to the public to play online purely for entertainment purposes, regardless of whether they ever purchased a lawful copy of the video game."

In a response posted on its website, the EFF calls the ESA's arguments "hyperbole." While the ESA argues that the exemption will suggest that "hacking—an activity closely associated with piracy in the minds of the marketplace—is lawful," the EFF argues that "of course, 'hacking' is legal in most circumstances.... Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software. If 'hacking,' broadly defined, were actually illegal, there likely would have been no video game industry."

Last month, 2K took down the servers for NBA2K14 , which inadvertently left most single-player career mode saves inaccessible. 2K later reinstated the servers and pledged to support all NBA 2K games for 18 to 27 months after launch.

The US Copyright Office will be holding public hearings on the proposed DMCA exemptions May 19 through 21 in Washington DC and Los Angeles. The final round of written comments on the rule will be closed on May 1.