What is their incentive? Maybe they want to preserve the opportunity of reviving an old IP? If that's the case, then doesn't allowing players to keep playing the abandoned games improve the visibility of those IPs, improving the value of a future revival?
It's really dumbfounding. I'd like to understand the motivation here, so that it at least makes sense to me.
This is the ESA's position: http://copyright.gov/1201/2015/comments-032715/class%2023/En...
I am broadly sympathetic to the EFF's position, but the ESA's argument is a lot more thoughtful and nuanced than the way the EFF is portraying it. I see this happening more and more with the EFF, and I trust their advocacy less and less because of it. It's one thing to be for a particular position, it's another to misrepresent that of your opponent in order to garner support. If you're confident of your position, you shouldn't feel the need to obscure access to primary sources so people can make up their own minds.
Oddly, while the EFF has multiple submissions to the copyright office as part of the open rulemaking process, and they're available on the EFF website, I've seen little acknowledgement of the fact the the Copyright Office is conducting a 3 year open rulemaking exercise on this topic, or about the Congressional committee that's re-examining copyright issues. I strongly urge interested parties to draft and submit their own arguments directly to the copyright office, where they will carry much greater weight.
http://copyright.gov/rulemaking/
PS if you're only interested in proposals to add exceptions to the DMCA, they're here: http://copyright.gov/1201/2015/comments-032715/ and here: http://copyright.gov/1201/2015/comments-020615/
Just wanted to say that, as others have noted, the excerpted words come from a 71 page reply, but I wouldn't say it was anything like picking four unrepresentative words. Take, for example, this longer paragraph from the filing:
> Hacking video game access controls facilitates piracy and therefore undermines the core anti-piracy purposes of Section 1201. As explained above, hacking the video game access controls requires, by definition, hacking of the video game console or similar device in order to play the hacked video game. Once the access controls for the video game console are hacked, regardless of the purported purpose or intent of the hacker, any content, including pirated games, can be played on a video game console.
> What's more, console hackers may distribute their console-hacking solution to gamers that have no intention of using it for the purposes stated in the proposed exemption. The risk of piracy is even greater on personal computers and similar devices that do not utilize device-based access controls to prevent the installation of unauthorized software. The individual can use consoles to make and store infringing copies of copyrighted games and other content and to distribute these unlawful copies online to a large audience.
You can't really go line-by-line through a 71-page comment, but it's fair to say that that sort of rhetoric—conflating "hacking" with piracy with illegality, regardless of context—runs throughout, and is what my colleague highlighted here.
"If people can play hundreds of old games for free, it will be harder to force them to pay for newer games! They'll get used to 'free' as a price point, and they'll have lots of free games to keep them amused!"
No, I didn't read the 30 page document the ESA wrote. I just know how people in power think: They want to keep as much control as possible, to buttress their position, even to the point of doing seemingly insane and harmful things that might, conceivably harm their position.
The hacker argument is particularly pathetic, but you're right: The 30+ pages wasn't motivated by that tiny excerpt. The 30+ pages was motivated out of desperation, since they're looking at declining sales numbers in the traditional gaming space. [1]
[1] http://gamerant.com/npd-gaming-decline/ http://www.npr.org/blogs/alltechconsidered/2013/03/22/174940...
Consequently, contrary to EFF’s assertions, multiplayer gameplay over the Internet is not a “core” functionality of the video game, and permitting circumvention to access such functionality would provide the user greater benefits than those bargained and paid for.
I wonder if, instead of having the near-endless wait until public domain, it would be good to have a system of intellectual property that made copyright increasingly expensive to hold year after year, as some function of the total assets of the IP holder. Make it some exponential function, so that after a certain number of years, holding onto the rights to some IP is just too expensive to maintain unless the holders feel they can actually do something good and profitable with the IP (rather than a system that would need to show regular "use", which would incentivize publishing crap to satisfy a regulation).
BUT...I think I'd actually prefer a return to the simple copyright rules: 14 years, it's yours. After that, it's in the public domain. I'd even take away the 14-year extension, or maybe make the 14-year extension be sold at an auction.
And after that, no more copyright.
Intellectual property is the flimsiest of modern-day "property" fictions (i.e. things we made up to help some people/businesses out), and the wealth of public domain is so very, very enriching to all citizens.
Right now a disturbingly large percentage of recorded audio is hard to preserve because it's not clear who to contact or the rights-holder doesn't have a system for handling obscure items. If you're a film-maker and want to license a track by a major artist, it's pretty straight-forward – call Sony and make sure you have enough zeros on the end of the check – but if you wanted something obscure – period jazz or blues, garage rock, etc. – you might not even be able to find who currently owns the rights after decades of people drifting out of contact, corporate mergers and acquisitions, bankruptcies, etc. Even a modest annual payment could have the side-benefit of ensuring that any work under copyright would have current contact information on file with the Copyright Office.
If megacorps like Disney want to spend millions keeping Mickey Mouse and friends out of the public domain after 100 years, they're free to do so, without keeping things like The Great Gatsby or the Dewey Decimal System locked up for no good reason.
But I can feel both sides.
For example my favourite all time PC game is Heroes of Might and Magic (2 and 3). There is a wonderful "inspired-by" version called PalmHeroes, and then some open source projects (freeheroes and others).
And then I won't mind paying for the latest version UbiSoft released for iPad's - and it seems that version was just the DOS version emulated on the iPad (okay, maybe not, but felt that way).
But I was satisfied nonetheless. Playing heroes on the iPad is great.
Ah well, I don't really have saying in such matters - maybe movies/books can help a bit in this direction.
.....
Now one thing that is possibly worrying - is how current games are going to be emulated in the future. It used to be that next-gen games were able to play previous games (PC, console) or emulate them, but PS3/Xbox360 are already hard to emulate on PC (especially PS3) - wondering with even newer consoles...
And then that's even minor, what's more worrying if the game relies on external assets/services (fully online games) - then nothing could be done really....
An advantage is that architectures are converging anyway to PC-like instead of exotic stuff like Cell.
It's pretty much the same kind of thinking that counts each viewing of a pirated movie as lost revenue — nevermind that you can watch a DVD or BD over and over and over, and not get charged each time...
I don't know if that's true. Steam, GOG, Nintendo's Virtual Console... there's money being made on publisher back-catalogs these days, and even if the publisher has no current plan to release or support these games, the value of that back catalog is part of the total value of the company at sale or liquidation.
If people have old games to play, they can play them instead of new games. All sorts of creative industries have an interest in destroying the public domain because it provides value to the world which thus means less demand for new creations. Nobody wants to admit this, and it is usually not consciously the focus of their copyright arguments (even to themselves), but it's the real source.
Just like the Disney vault BS, absence makes the heart grow fonder.
Simple. They are control freaks and have paranoid fear of DRM dying out. That's because DRM + anticircumvention were never about copyright. It's for controlling markets and stifling technological progress.
ESA's position, broadly, is:
* Game publishers own their titles and are entitled the economic benefits that stem from them.
* There is no exception in copyright law for "maintaining access to matchmaking services", and, more specifically, retaining access to online services isn't a use case that falls under fair use.
* The duration of copyright lasts far longer than "6 months after the matchmaking service stops working", which is the time threshold in EFF's exemption request.
* Game titles themselves have value separable from their online services, and indeed many/most games with online components charge separately (either directly or through agreements with the game console online services), further suggesting that the termination of online services doesn't impact the copyright on the game itself. Indeed, ESA contests the idea that these games are "abandoned" at all.
* The modifications required to substitute a new matchmaking service are intrusive and impact features other than those needed to restore matchmaking, creating a legal ambiguity.
* Similarly, the modifications extend far past the games themselves and into the consoles/phones/whatever, creating an ambiguity about whether/when jailbreaking limitations are contractually enforceable.
* Ambiguities aside, the technical capabilities that would need to be exempted to make this work are so sweeping as to potentially moot the copyright of most of the code on the platform (ie, to restore matchmaking, you'd need to exempt reversing and modifying and trafficking in the modified versions of entire closed operating systems).
* The beneficiaries of game modifications will include commercial entities who will gain legal cover for selling services that capture benefits that are rightfully owed to the game copyright holder.
... I'm about 1/3rd through their response and I've probably failed to capture 1/2 the ESA arguments I've read so far.
The sad thing about this is, even with ESA's arguments charitably summarized and faithfully captured, virtually none of EFF's audience is going to be persuaded. There was practically no risk that ESA would persuade EFF's audience. Should video games be legally hackable? Virtually everyone who cares what EFF thinks believes: "yes!!^$!".
There was absolutely no reason for EFF to be deceptive about this. And yet, here they are again, insulting our intelligence. EFF does a lot of good and important things, but their online advocacy is not one of them.
Popular video games such as Diablo III and Starcraft 2 employ always-on DRM by requiring players to connect to the internet to play, even in single-player mode. Reviews of Diablo III criticized its use of always-on DRM.[1][2] As with Diablo III, SimCity (2013) experienced bugs at its launch due to always-on DRM....A major disadvantage of always-on DRM is that whenever the DRM authentication server goes down, or a region experiences an Internet outage, it effectively locks out people from playing the game.
http://en.wikipedia.org/wiki/Always-on_DRM
Given publishers claim they are selling a perpetual license to gamers when they purchase a game, it is unfair to then disallow gamers from doing whatever is necessary to play the game, as the license quite explicitly permits [the act of playing].
I'm asking because the question is interesting. I want to be careful about being boxed into supporting ESA. I don't; I just think EFF's online advocacy is chronically misleading.
I thought EFF made that pretty clear. Reversing and manipulation are things that should not be banned.
Patching should not be considered copyright infringement. It's nonsense.
All the points you're listing seem pretty weak to me. People are allowed to make services that can be applied to your product without paying you. The six months thing is just there to make their lives easier, I'd be fine having the exemption always apply. The idea that a multiplayer game with no servers isn't abandoned is laughable. Who cares if other features are impacted? Jailbreaking should be allowed, no problem there. Restoring matchmaking does not require trafficking the entire work. Again, people can make services for your product without paying you.
Maybe we should demand more from the EFF, but I certainly would not want the job of having to take this sort of nonsense seriously. At any rate, if the EFF article gave me a bad impression of the ESA, actually reading the ESA brief did not improve it.
Of course, it is deeply unfair of EFF to evaluate ESA's brief as if it was a position paper, and in the process caricature and mis-summarize it.
Once again: I don't want to get boxed into sticking up for ESA.
EFF’s discussion of “matchmaking” services and multiplayer-modes is also misguided. The video game industry utilizes access controls in order to offer robust, interconnected online experiences that supplement game play. These immersive gaming experiences leverage users’ Internet connectivity to provide a suite of online network features to gamers. These features can include, for example, not only multiplayer game play, but also chat communications, sharing of user-generated content, leaderboards, points, badges and other achievement markers. Online network features for sports games might update roster information in real time to reflect injuries, trades or even increases or decreases in skill. And the online services may enable users to download customized outfits or other downloadable content. Some modern games, such as Minecraft, enable the user to create the very world that the player, and others, inhabit.12 Still other games may use cloud servers to offload core game calculations to create more realistic game experiences.13 Significantly, however, all of these online network services generally are entirely distinct services that the user must register for―and sometimes pay for―separately and are not included in the purchase of the video game. Consequently, contrary to EFF’s assertions, multiplayer gameplay over the Internet is not a “core” functionality of the video game, and permitting circumvention to access such functionality would provide the user greater benefits than those bargained and paid for.
I think the only people who could believe what the ESA has written in that paragraph are people who don't actually play videogames or understand them at all. No one pays for a leaderboard feature, for example. As for Minecraft, the ability to create the world around you is inseparable from what people "pay for when they buy the game." In other words, it's not a separate feature, or some kind of upsell. It's the heart of the game.
The topic at hand is "Should it be lawful to revive a videogame after it has been abandoned?" That is, games which 1. no longer work and therefore cannot generate any revenue, and 2. can be made to work through reverse engineering the network protocols alone.
The last point is the key. The network protocols are all that need to be reverse engineered. In other words, if it's a PC game, it can be pointed to a fake gameserver which you write, which responds as the "real" gameserver would have. If it's a console game, it's no different. There is no reason a console has to be modified at all in order for people to be able to play an abandoned game, in multiplayer mode, unless maybe the ESA is suggesting the publisher pushed out some kind of "killswitch" patch which removed the multiplayer features of the game entirely via an update. However, such an eventuality can be sidestepped by the hackers by getting people to uninstall the game and then reinstall whatever came in the disc they bought, and then run a local proxy to block the update servers. It should be obvious at this point why no console modifications are necessary to make this work.
The executive summary doesn't seem thoughtful. It seems to be handwaving. It almost seems to be creating issues where none exist, as in the case of arguing that "the modifications extend far past the games themselves and into the consoles/phones/whatever, creating an ambiguity about whether/when jailbreaking limitations are contractually enforceable." What am I missing?
I wish to be persuaded. Why do you, as a gamer and a hacker, believe the ESA has a case?
EDIT: I tried to upvote your comment to cancel out your downvote, but you've attracted more than one. Strange.
HN is so adversarial nowadays that I've basically left. I hope that I managed to convey that my intent here is not to challenge your views, but rather to learn from them.
What I am sure of is that EFF's blog post blatantly misrepresents the case ESA is trying to make.
(Also: not a gamer!)
The troubling part is, that they are making blanket statements about all reverse engineering of abandon-ware regardless of original EULA or even if there is a party left to injure. We're straying dangerously close to "bank robbers use cars so cars should be illegal" territory.
I guess the industry doesn't want us to do that!
(Disclosure: I work with the Oakland museum mentioned.)
You agreed in the EULA to own a license to use the game, a license which no doubt can be modified at anytime for any reason, including removing any right to use the game.
Of course it's not enforceable, it's a one-sided contract. If their's is enforceable though mine should be too.
If they can modify at any time my usage of the game then as consumers why would we not simply modify the situation to never pay them for their products?
I remember a lawyer from Atari/Infogrames coming at me for having authorised some abandonware site to publish a game I had written in 1990, Alpha Waves. So I dug up the contract I had signed with them. It was a 3 years exclusive licensing and distribution contract, which Infogrames could only renew by sending me royalties every quarter.
I sent a copy of the contract, along with a letter asking for the more 15 years of royalties (after 1993). Never heard back from the lawyer after that.
Old abandonware often belongs to individuals and independent authors. And if they are like me, unlike lawyers, they are just happy that someone remembers the stuff they sweated on for years.
When the game is well distributed, preservation won't make too much sense. Nobody will have enough pieces, though it may well be possible to capture a lot of the before it all gets old too.
But if they are stand alone, or even download 'n play, people are going to archive them.
To me, given how existing efforts have helped publishers and producers out many times in the form of commented and running code, whether we archive seems largely moot.
The real question is how do we make the money work?
One thing I see a lot is this assumption or presumption of tons more sales, if only...
Old one not available
Pirates
Used
Swap with friends
...aren't in play.
But the dollars aren't there. Most people cannot just double or triple their entertainment budget, and there is a case for time too. Who can actually get through them all?
Some more dollars are there though. I agree with that, but I likely disagree in the amounts and to some degree, who.
As for the illegal hacking. No way. That really isn't open for discussion. If it's on my machines, I get to take a look.
Maybe there is little to see. Then again, teaching myself on these kinds of experiences is really high value. I can't reasonably let that idea get beat up fo no good reason.
Many of us here know how valuable an activity like cracking a game can be.
And at some point the need for better experiences drives demand for people able to deliver.
There is a basic disconnect there. Run it and don't go looking... are you kidding?
Seems to me they could offer archives themselves too.
If you have hardware, great. Just run it. If you don't, maybe it makes sense to allow people to get a copy they can work with.
There are a lot of things kind of broken right now. Budgets, costs and risks are high, and so is the asking price...
Seems to me, a stand alone title is high value, assuming the title itself is good, right? I can swap with friends, and do other things I that adds value.
A split thing that needs always on Internet is less. Download same, because I am doing work to make it happen and I can't swap easily...
The games industry is going to have to go through some pricing challenges, just as music did.
There isn't as much value in something that cannot run for as long as the user wants to run it. Same goes for downloads and swapping, streamed, etc...
Some pricing options don't even make much sense! A $60 buy in for a subscription game? Not a lot of initial value there. It's all in the subscription. But then again, if it's on a retail shelf, they want to see potential margins too.
Do a remake, an expansion, or a sequel!
Boo! Publishers never thought of Emscripten... Those ESA crooks should really be strongly opposed, together with repealing the whole DMCA-1201.
https://books.google.com/books?id=FwIAAAAAMBAJ&pg=PT37&lpg=P...
Money Quote: "If you want to patch together a lawnmower, a walkman, and a pair of ice tongs to play "Sonic Cruises for Hookers", or anything else Sony is publishing, that's your right.
And it has north of 6 million registered users.
