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Spam Spam Spam Humbug 27 - DMCA Exemptions & Game Preservation
November 18, 2015

Spam Spam Spam Humbug 27 - DMCA Exemptions & Game Preservation


Joe Garrity returns to Spam Spam Spam Humbug to discuss the recent DMCA exemption that was granted to benefit game preservationists.

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New Patrons & Shout-Outs

There are a couple shout-outs we'd like to give to backers of the Ultima Codex. First up, Chris increased his Patreon pledge a little while ago, so thank you very much for that.

And then, just recently, Matthew somehow found an old donation link on the Codex...and it still worked! So he sent in a few dollars, along with a little note. He writes: “Thanks for maintaining this site. Was looking for info on playing some of my old favorites and any remakes or new installments.” And thank you in turn, Matthew, for helping out with that whole maintaining the site thing.

New Followers & Ultima Dragons

We have a few new followers on Podbean this week: touliver, wimtalk, and amarionwhite.

As well, there have been a few new Ultima Dragons that have signed on with the club via the official homepage, Mar Patricio, Kailef, and Under. And over on the Ultima Dragons Facebook group, we welcome: Wes, Yannick, Linguistic, Wei, Terry, Stephen, Jason Ely, Christian, Kevin/Boolean, Wesley, Trevor, Zachary, David, Hans-Peter, and Mav. Welcome and SPLUT! to all.

Podcast Topic(s)

It would be all but impossible to capture the boisterousness and comedy of this episode in the show notes here, so instead I'm just going to include the framing of the discussion, namely the changes to the DMCA rules made this year (as in, within the last month). You can find the complete text of the changes here: Library of Congress 2015 DMCA 1201 Rules.

Here's the relevant part, for our purposes:

Based on a review of the evidentiary record, the Register recommended an exemption to allow continued gameplay and preservation activities when developer server support for a video game has ended, though one more circumscribed than that proposed. With respect to gamers, the Register concluded that the record supported granting an exemption for video games that require communication with an authentication server to allow gameplay when the requisite server is taken offline. The Register explained that the inability to circumvent the TPM would preclude all gameplay, a significant adverse effect, and that circumvention to restore access would qualify as a noninfringing fair use. At the same time, the Register determined that proponents had failed to provide persuasive support for an exemption for online multiplayer play, in large part because it is not clear on the current record how the provision of circumvention tools to multiple users to facilitate an alternative matchmaking service could be accomplished without running afoul of the anti-trafficking provision in section 1201(a)(2). The Register also confirmed that the exemption for gamers should not extend to jailbreaking of console software because such jailbreaking is strongly associated with video game piracy.

  1. Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable local gameplay, solely for the purpose of:
    1. Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal gameplay on a personal computer or video game console; or
    2. Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives or museum.
  2. Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives or museum to engage in the preservation activities described in paragraph (1)(2).
  3. For purposes of the exemptions in paragraphs (1) and (2), the following definitions shall apply:
    1. “Complete games” means video games that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server.
    2. “Ceased to provide access” means that the copyright owner or its authorized representative has either issued an affirmative statement indicating that external server support for the video game has ended and such support is in fact no longer available or, alternatively, server support has been discontinued for a period of at least six months; provided, however, that server support has not since been restored.
    3. “Local gameplay” means gameplay conducted on a personal computer or video game console, or locally connected personal computers or consoles, and not through an online service or facility.
    4. A library, archives or museum is considered “eligible” when the collections of the library, archives or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives or museum.

And here's the EFF's take: Victory for Users: Librarian of Congress Renews and Expands Protections for Fair Uses.

The Librarian granted part of EFF’s new proposal for an exemption to preserve abandoned video games. The new exemption allows players to modify their copy of a game to eliminate the need for an authentication server after the original server is shut down. Museums, libraries, and archives can go a step further and jailbreak game consoles as needed to get the games working again. Disappointingly, the Librarian limited the exemption to games that can’t be played at all after a server shutdown, excluding games where only the online multiplayer features are lost. Still, this exemption will help keep many classic and beloved video games playable by future generations.

Where do the various members of the SSSH crew stand on this issue? Well, we're certainly not of one mind about it...but you'll have to listen to the episode to get the full picture.

Where to Find Us Online

WtFD - Twitter | Facebook | The Ultima Codex |

Kevin - Twitter | Eight Virtues Games | YouTube

Linguistic - Ultima Journeys

Joe - Flickr | Big Box PC Game Collectors Facebook Group


(Image credit: Media Law Monitor)

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