New DMCA Exemption Keeps Enthusiasts in the Game

Due to efforts by the Electronic Frontier Foundation (EFF), the Library of Congress adopted in its recent guidelines a limited exemption to the Digital Millennium Copyright Act (DMCA), allowing gamers and preservationists to modify a video game to restore access to the video game for “local gameplay.” Specifically, a video game owner may modify an old video game to avoid the need for an authentication process when the copyright owner no longer supports the servers that facilitate such a process. This exemption will provide video game enthusiasts with the ability to play many classic video games. While this exemption is a victory for gamers and preservationists, not all of them are celebrating, given that the Library of Congress did not agree with the EFF on its other proposals related to the preservation of video games.

Under the Library of Congress’s guidance, for example, there is no exemption for:

  • Restoration of access to online games (or online gameplay in video games) that require the copyright owner’s servers to coordinate such gameplay. (The exemption excludes games where only the online multiplayer features are lost.)
  • Jailbreaking of a video game console to get around the authentication process (except when the jailbreaking is for preservation uses by public museums, libraries and archives to maintain a console game in playable form)

Regarding such exemption denials, the Library of Congress concluded that allowing users to circumvent the copyright owner’s technological rights management software for third-party matchmaking services (e.g., for multi-player gameplay) would run “afoul of the anti-trafficking provision” of the DMCA, and that jailbreaking by gamers “is strongly associated with video game piracy.”

On the denial of the exemption related to online games, gamers will likely cringe at the thought of the online multiplayer gameplay of legacy games being directly tied to profitability. (See article on EA shutting down over 50 multiplayer games last year.) But since the Library of Congress’s rulemaking process occurs every three years, the EFF will have another opportunity to present its case soon enough.

In the meantime, gaming aficionados have a new limited exemption—and, potentially, a lot more games—to enjoy.