As part of the US Copyright Office's regular review of the Digital Millennium Copyright Act, the EFF and others are asking for an exception that would let users modify games and systems to restore servers for games that have been "abandoned" by their original makers. The Entertainment Software Association, as the industry's biggest trade group, has been fighting those efforts , and the reason, as ESA president and CEO Mike Gallagher puts it, is simple: "There's no such thing as an obsolete game."

Answering questions from Ars at a media event during last week's Electronic Entertainment Expo (which is run by the ESA), Gallagher said copyright arguments that rely on games or servers being considered abandoned or obsolete just don't fly in today's gaming ecosystem.

"If you look at the games that are played now, they're available on multiple devices today because the devices have gotten more and more capable," he said. "All of these games that have been made, certainly by ESA members, these can be used and re-utilized and repurposed in so many different ways. There's no such thing as an obsolete game when you can revive it on any platform at any time. It's digital. From our perspective, there is no merit to the term 'obsolete.' There is no need to allow people to hack or otherwise open up these things or create competing economic enterprises."

As a specific example, Gallagher cited the 1994 PC CD-ROM release Myst. "No one plays Myst anymore, so we're just going to set up Myst on our own, and it's all for the benefit of people that just want to play it," he said by way of a rhetorical argument from the other side. "It turns into an economic or competitive alternative that they're not entitled to."

When is a server really abandoned?

The Internet Archive actually does maintain a downloadable ISO image of on its servers as part of its continuing efforts to archive thousands of classic PC, and console games in a playable form through browser-based emulation. Archivist Jason Scott tells Ars that the site handles copyright complaints quickly when they are brought up by the original rights holder. "If anyone writes to us with any issues with something on the Archive, we handle the request/notification within 10 to 15 minutes," he said.

The exemption currently being considered by the Copyright Office doesn't deal specifically with offline works like Myst, though, but instead with games that use centralized proprietary servers that the original manufacturers are no longer willing or able to maintain. Following Nintendo's shut down of all Wii and DS online servers last year, for example, a DMCA exemption would allow owners of Mario Kart Wii to legally develop and use their own third-party servers through a modified version of the game. Efforts like the Nintendo DWC Emulator project could currently run afoul of DMCA claims if Nintendo decided to pursue them.

When asked specifically about these abandoned servers by Ars, Gallagher seemed to concede that there might be some merit to arguments "on that level... but who knows what's coming next. We have a very dynamic approach to how the games are used, marketed, shared, [and] played. To take a very narrow view at one point in time and make that claim, it does not fit relative to our industry."

In other words, just because a game server isn't being supported right now doesn't mean the publisher has abandoned the game for all time or given up its rights to control that online gameplay. As the ESA argued in its brief to the Copyright Office, "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. 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."

"It might work for transistor radios or something," Gallagher told Ars. "It does not fit for video games."

Furthermore, Gallagher seemed sure that gamers as a whole are on the ESA's side on these matters. "We're very proud to make that case," he said. "Gamers have seen the light. We have a very good dialog about that. Some don't like it but most understand, when you talk to them, they understand why we're doing it, and we have the green light."

The Copyright Office is also hearing arguments on a DMCA exemption that would allow users to legally jailbreak video game consoles in the same manner as cell phones to allow for new functionality and play of homebrew software. The Copyright Office denied a similar request in 2012 , saying the real-world harm of potential piracy overrode any potential "transformative use" of the hardware itself.

Decisions on both requested exemptions are expected in the coming months, after a third and final round of public comments closed in May.