The EFF and the Entertainment Software Alliance are going head-to-head over the need to preserve functionality in abandoned games. The EFF wants an exemption to the DMCA to keep games alive after its servers are closed down, but the ESA and its allies the MPAA and RIAA are vigorously opposing the digital rights group.

While video gaming used to be a strictly offline affair, in the current market many titles require continued access to custom online resources in order to function.

Updates, patches and multi-player support aside, some titles simply cease to function when their developers or publishers decide that the game has outlived its usefulness.

While this is convenient for companies looking to promote the latest titles to their customer bases, those who have invested in software are regularly abandoned along with their now-useless games.

In attempt to remedy this situation the Electronic Frontier Federation (EFF) has teamed up with law student Kendra Albert to seek legal protections from the Copyright Office for those who modify gaming code in order to keep titles playable.

The problem lies in the anti-circumvention provisions of the Digital Millennium Copyright Act (Section 1201) which create legal uncertainty for those digging into code for such purposes. To create clarity, provide protection and allow for the functional preservation of videogame art, the EFF is seeking an exemption to the Act.

“Section 1201 is often used by the entertainment industries not to prevent copyright infringement but to control markets and lock out competition. So it’s not surprising that ESA (the trade association for the largest game producers), along with MPAA and RIAA, have written to the Copyright Office to oppose this exemption,” EFF attorney Mitch Stoltz explains.

“They say that modifying games to connect to a new server (or to avoid contacting a server at all) after publisher support ends—letting people continue to play the games they paid for—will destroy the video game industry. They say it would ‘undermine the fundamental copyright principles on which our copyright laws are based’.”

Indeed, the testimony of ESA Senior Vice-President and General Counsel Christian Genetski before the Subcommittee on Courts, Intellectual Property and the Internet last year (pdf), outlines the software group’s position clearly.

“[W]hile addressing copyright infringement is one important objective of Section 1201, it is not its only objective,” Genetski said.

“[A] prohibition on the hacking of technological protection measures controlling access to protected works (even if the hacking does not result in any copyright infringement) [is] necessary in order to encourage innovation in the online distribution of copyrighted works.”

While the ESA appears to have at least drawn a distinction between piracy and non copyright-infringing activity in its 2014 submission, the EFF says that the software group is now using language that closes the gap somewhat.

Any exception to Section 1201’s blanket ban on circumvention would send a message that “hacking — an activity closely associated with piracy in the minds of the marketplace — is lawful”, the ESA says, adding that the same would “undermine the fundamental copyright principles on which our copyright laws are based.”

It’s fair to say that the EFF remains unimpressed by this interpretation.

“Imagine the havoc that could result if people believed that ‘hacking’ was ever legal! Of course, ‘hacking’ is legal in most circumstances,” Stoltz says.

“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.”

In its submission to the U.S. Copyright Office (pdf), the EFF lists dozens of server shutdowns in 2014 alone, affecting titles such as Age of Empires Online, various Battlefield, Command and Conquer and Crysis titles, several FIFA, Madden and Mario games, plus more than a dozen Pokemon editions.

While these titles have been committed to the graveyard for now, the EFF hopes that an exemption to the DMCA will allow them to enjoy new life. They are supported by T.L. Taylor, Associate Professor of Comparative Media Studies at the Massachusetts Institute of Technology.

“The preservation of computer games includes not only making sure we can see their graphics or hear their sounds, but understand the complexity of their mechanics. Given the market life-cycle of most games, protection is needed to ensure research can continue on these artifacts even after developers have moved onto other ventures,” Taylor writes.

“I believe the exemption proposed here offers a critical path to supporting a range of work that, far from harming any stakeholders, fosters the lively use, development, and scholarship of digital gaming.”