
An Exemption to the DMCA Would Let Game Fans Keep Abandoned Games Running - CapitalistCartr
https://www.eff.org/let-game-fans-keep-abandoned-games-running
======
VonGuard
I actually wrote one of the comments included in this piece, and I'd like to
encourage all of you to donate to the EFF so they can continue to work on
important issues like this. They do not pay their lawyers extravagantly, and
most of the authors of this piece (myself included) were doing so, and will
continue to do so, on a volunteer basis.

The original document is at [https://www.eff.org/document/eff-comments-dmca-
exemption-aba...](https://www.eff.org/document/eff-comments-dmca-exemption-
abandoned-games)

You can donate to the EFF at
[https://supporters.eff.org/donate](https://supporters.eff.org/donate)

And if you feel as if we missed something in the document, you will be able to
comment to the Copyright Office yourself when there is an open call for
comments in a few months. This work helps gamers on the outside, but really,
it's helping the developers, both of the games and of the after-market
patches.

The original developers get to see their work live on, regardless of the
business deals around their IP, and the fans who take the time to write these
patches get to have some cover for their work. It's really a no-lose
situation, and if an entity is couching it as otherwise, be suspicious.

Finally, if you are hankering to play old PC games online, go download
GameRanger [http://www.gameranger.com/](http://www.gameranger.com/) It is
amazing, and it is also an entirely one-man developed piece of software. He
will happily support your game if you ask him, and will do so for free.

~~~
frostmatthew
For those unaware, in addition to donating directly you can also have 0.5% of
your Amazon purchases go to the EFF as they are one of the available
organizations for Amazon Smile[1].

[1] [https://smile.amazon.com/](https://smile.amazon.com/)

~~~
BatFastard
Thanks that is a great tip. Just added EFF to my amazon profile!

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exelius
Many of these abandoned games are effectively orphan works. I think if
anything, there needs to be a definition of "digital orphan works", because
digital IP suffers from bit rot in a way traditional media doesn't.

A 50 year old book is still there, but even a 10 year old game might not even
be available for purchase anywhere (and even if it is, it's probably not
immediately playable on modern hardware).

Fundamentally, we need to overhaul copyright in light of the fundamental
changes to intellectual property sales brought about by digital goods. I'm not
optimistic that it will happen, but for a shitty game to be copyrighted for
100 years is just ludicrous. At some point, things need to pass into the
public domain.

~~~
jarcane
My rule of thumb is, generally, "Is the creator still earning from this
product," and in the vast majority of cases where gaming software is concerned
the answer is no. There _is_ a push through sites like GOG.com to put many old
games back on sale, but often it's through middle-men and holding companies
and I doubt a dime of some of the more obscure titles goes anywhere near
anyone who actually helped create the things.

The result is assorted holding companies picking up a few extra pennies, but a
huge range of more obscure works are still the domain of abandonware sites and
efforts like the Archive.

~~~
furyg3
"Is the creator still earning from this product" is a test that congress
believes doesn't matter.

Walt is dead, Mickey lives on (with copyright restrictions)...

~~~
basseq
This also isn't an apt comparison, because no one is claiming that enthusiasts
should own the copyright to Mario Kart.

A better comparison would be Steamboat Willie, but even that is confusing
because copyright is so caught up with trademark Disney characters. IANAL, but
it seems to be that Disney should be able to have exclusive ownership over
Mickey the character, but not the work in which he first appeared. (Which
muddies the water, I know.) Does Disney make any significant money off
Steamboat Willie? (They actually might, given its culture status, I just don't
know.)

~~~
DanTheManPR
You can still buy Steamboat Willie on DVD. Using it as an example is sort of
problematic, because it is not an orphaned work, and a lot of people don't see
the problem with Disney maintaining control over it. A better example would be
the many orphaned animated features from the late 20's and 30's who languish
in legal limbo instead of being released into the public domain (if you can't
think of any examples, that's a symptom of the problem more than anything
else).

~~~
dublinben
>You can still buy Steamboat Willie on DVD

On an expensive (~$100), out-of-print DVD, only released in 2005. The work has
been orphaned for far more of its lifetime than it has been available.

~~~
bufordsharkley
Well, that's the Disney Vault in action. (Which is a legitimate release
strategy, and it's hard to claim that Disney doesn't generally try to keep its
historical works available. I imagine it'll be re-released at some point in
the future.)

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logfromblammo
Repealing the DMCA would also work. Completely overhauling the copyright
system from the ground up would be even better.

I know that when you're the little guy, you have to pick your battles wisely,
but there are a lot of things we can no longer do as a society because our
public domain is no longer growing.

Making an exemption to the DMCA is a temporary fix. For software, we should
probably have a completely separate system of granted monopoly, wherein the
protections are contingent upon deposit of the source code with the patent and
trademark office, which would then become public record when the protection
expires (on a completely independent time scale from anything to do with
Mickey Mouse).

~~~
rayiner
> but there are a lot of things we can no longer do as a society because our
> public domain is no longer growing.

Serious question: what useful advance is being held back by a bunch of
abandoned entertainment not going into the public domain?

~~~
tptacek
Calvin and Hobbes action figures and the Disney XD Calvin and Hobbes cartoon.

------
pbhjpbhj
How do these games enter the public domain?

They can't. They can't be offered to the public domain after the relevant term
expires in exchange for the _demos_ protection of the IP by punishment of
tortfeasance.

It is not possible for them to be copyright works then as all copyright works
must eventually enter the public domain. Unfortunately this was always a
truism within publication. It's part of publication itself that mode of
reproduction of the work is laid bare; arguably that is what publication meant
in the first instance within the purview of those writing copyright laws.
Because it is not contemplated that publication could not make the work
public, as that would be self-contradictory there is no really strong
rendering of this need. It is, I'd argue, there though. Vis:

Berne Convention, Art.3(3)

>"The expression “published works” means works published with the consent of
their authors, whatever may be the means of manufacture of the copies,
provided that the availability of such copies has been such as to satisfy the
reasonable requirements of the public, having regard to the nature of the
work. [...]"

This section of Art.3 goes on to list works that are made public but are
nonetheless not considered published and so are not protected by copyright. To
my mind works that are inhibited with DRM fall in this category. That is,
games - as with other works protected by DRM - are _not_ being published.
Publication to the mind of those drafting the law means making the work
available to be reproduced. In terms of Berne Art.3 with regard to the nature
of games they don't meet with the reasonable requirements of the public
either, eg continued playability.

[Thoughts/knock-downs/rejections with reasoning happily received!]

~~~
jeremyjh
In some ways they may be more like a public performance. The venue is
constrained and the ticket agreement restricts ability to reproduce artifacts
from that performance. Do illegal bootlegs ever become public domain? I'm
thinking they can't - they would always be an illegal bootleg.

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throwaway125
I'm not sure why the proposal would not cover MMO games. If a game studio
abandons an MMO game it is completely destroyed for the players, an exemption
would be very useful in that case. Perhaps the EFF is trying to avoid too much
resistance from big companies that make a lot of money on MMO games, which is
understandable but unfortunate.

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spiralpolitik
This is the kind of work I like to see EFF do. In particular it states that
the legislation is bad, but accepts that it exists. Identifies a small part
that can be changed. Campaigns to change just that small part. Rinse and
repeat enough times that the legislation eventually collapses due to the
number of holes in it.

It's an approach taking in account the realpolitik, and its an approach that
other FOSS groups could learn a lot from as the attempt to make change happen.

~~~
schoen
Thanks!

One difficulty with the "collapses due to the number of holes in it" theory in
the context of the DMCA triennial exemption process is that the exemptions
expire automatically after three years and have to be re-applied for.

"the prohibition contained in subparagraph (A) shall not apply to such users
with respect to such class of works _for the ensuing 3-year period_ " (17 USC
§1201(a)(1)(D))

(The Copyright Office has also taken the view that the decision to grant an
exemption is not directly precedential in the way that a court decision would
be -- that there isn't a presumption that it should be renewed, that you can't
just say "I propose to renew exemption #2 from 2012 because the Librarian of
Congress found it was appropriate then and the same reasons still apply,
thanks!" and get a renewal on that basis. So it's quite different from impact
litigation that way.)

So, for example there's nobody currently directly benefitting from some of the
legal work our lawyers did in, say, the 2003 or 2009 exemption processes.

Our relationship to the exemption process is complicated. In addition to
participating in it every triennial cycle but one, we have also strongly
criticized it. Here's an example from 2005 (with the super-retro green and
blue logo):

[https://www.eff.org/document/dmca-triennial-rulemaking-
faili...](https://www.eff.org/document/dmca-triennial-rulemaking-failing-
digital-consumer)

------
basseq
General question: who enforces DMCA? Legal _protection_ would be nice, but if
the company in question (say Nintendo in the MKW example) doesn't care and
doesn't pursue legal action, does it matter in practice?

The only reason the company might care is because the use weakens their
overall copyright case (e.g., Nintento's right to the Mario / Mario Kart
brand). Enthusiasts don't care, so the interests are aligned, but the lawyers
might not be.

~~~
ianferrel
The DMCA imposes criminal penalties for certain acts. The state prosecutes
alleged criminal acts, not the alleged victims (in this case, owners of the
copyright).

It matters not a whit if the owner of a copyright doesn't pursue legal action
if some federal attorney somewhere decides that this is an important issue.

------
andrewchambers
I really want the source code for warhammer dark omen to be released to the
public. It just doesn't run on my PC anymore, and I want to make the
modifications to fix it.

~~~
mahouse
Or legal WoTLK servers, please :-)

------
sandworm
The exemption already exists.

(1) The DMCA, and for that matter copyright law generally, creates private
rights of action in the copyright owner. Even if something is infringing on
their rights they need not act. The decision is up to them.

(2) Copyrights do not pass automatically. Nobody can pick up the torch by
asserting the rights of an inactive copyright owner.

(3) True abandonware involves either a disappeared copyright owner or one that
no longer cares about an old title.

So ... do what you want with abandonware. If the copyright owner reappears and
asserts his/her rights, then it wasn't really abandonware in the first place.
That's the risk you run.

Also, copyright isn't what stops people from maintaining old games. It might
be the easiest means of enforcement (ie takedown notices) but it isn't the
meat. Nobody cares if you make copies of the original Civilization. The
copyrighted game is valueless. But they do really really care about you using
the "Civilization" trademark. That tidbit of intellectual property has nothing
to do with the DMCA.

~~~
Flimm
"The exemption already exists"... where? The rest of your comment only talks
about how copyright is often unenforced in these cases, not that there exists
an exemption.

~~~
carussell
> "The exemption already exists"... where?

17 U.S.C. § 1201, which is both named in the article and otherwise trivially
googleable.

~~~
schoen
But this "exemption" that "already exists" isn't a matter of statutory text,
it's a claim that some people won't get sued in practice.

~~~
carussell
What kind of answer are you looking to see wrt the question "where?"

