The U.S. Copyright Office is considering a rule change that would loosen the restrictions governing emulations and reproductions of abandoned online games.

The argument is based on the Digital Millennium Copyright Act of 1996, which is a law meant to curtail the theft and piracy of intellectual properties such as video games and other software. Currently, the U.S. Copyright Office grants an exception to various museums, archives, and libraries regarding abandoned games that are no longer publicly available. New exemptions to the DMCA are considered every three years by the U.S. Copyright Office.

Last year, several organizations, including the non-profit Museum of Art and Digital Entertainment, filed a request that the U.S. Copyright Office broaden its exceptions to include online games that have been shut down by their publishers. These would include MMORPGs such as Star Wars Galaxies and City of Heroes. Both of those game still have passionate fanbases, but they are no longer playable due to the fact that the servers shut down several years ago.

The Museum of Art and Digital Entertainment is requesting that exemptions be extended to online games.

“Although the Current Exemption does not cover it, preservation of online video games is now critical,” the Museum of Art and Digital Entertainment wrote. “Online games have become ubiquitous and are only growing in popularity. For example, an estimated fifty-three percent of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online.”

Arguments regarding this exemption expansion were made during the previous review period, but the Copyright Office argued that many multiplayer games survived via local multiplayer. However, the vast majority of MMO games require a connection to a server and were never built with any form of local multiplayer in mind.

For these reasons, the Museum of Art and Digital Entertainment is asking the U.S. Copyright Office to allow archivists to operate servers for these abandoned games so that players may experience them as the developers intended.

The Entertainment Software Association, which represents major players in the video game industry such as Electronic Arts, Nintendo, and others, has come out in opposition to this request. The ESA argues that extending the DMCA exemptions to online games would be a step too far.

“The proponents characterize these as ‘slight modifications’ to the existing exemption,” the ESA wrote. “However they are nothing of the sort. The proponents request permission to engage in forms of circumvention that will enable the complete recreation of a hosted video game-service environment and make the video game available for play by a public audience.”

The ESA further argues that allowing the hosting of servers would allow gamers to fully play these games for free, which could be seen as a form of competition with their existing titles. The ESA notes that the Museum of Art and Digital Entertainment charges an admission fee, which it argues amounts to a commercial enterprise, even if the Museum is a non-profit.

The U.S. Copyright Office has yet to make a decision but will review all relevant comments before doing so.

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