These companies care about their "property" more than about legality, unfortunately.
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.
I don't understand why the ESA cares at all about this. None of the games in question are making any money, and the publishers don't expect to make any money in the future on them.
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.
And there's no chance you will from reading this article, since there's no link to the ESA's statement, so the whole article is based on 4 excerpted words. I would find this article much more persuasive if there were a better attempt to establish the content.
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.
Disclosure up top: I work for the EFF on copyright activism, and submitted this article here, but didn't write it.
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.
You're quoting individual grafs from a 4-page executive summary. The entire rest of the document goes into excruciating detail about the myriad of objections ESA has to the exemption proposal.
You can, in fact, go line-by-line through a 71-page comment. When you purport to summarize it, you are obliged to capture it in its entirety, or else disclaim the fact that you're responding only to a fragment. EFF failed to do that here.
9 minutes later
The ESA document isn't 71 pages long. It's 29 pages, plus exhibits. I read all 29, and mined out all the arguments I could find (excuse the typos, I tried to go as fast as I could):
sweeping scope
burden is on exemption asker
no concept of “abandoned game” in copyright law
exempts modifications on non-gaming platforms
applies to games other than those eft claims it does
turning off online services doesn’t abandon game
access controls used for more than just enabling matchmaking
implicates controls fundamental to the platform like code
signing
copyright owner entitled to benefits/revenue from online
services
fails to meet burden that “most use would be noninfinging”
online services licensed separately from game, so modifying
game itself infringes
six month time duration has no basis in law
exemption is broader than fair use (preservation and study)
significant commercial non transformative use
involves reproduction/distribution of copyrighted game
assets
amount of code implicated is sweeping and unreasonable,
unlike book excerpt
has the effect of circulating tools also used for piracy,
which harms market
too many market alternatives to support argument of
irreparable harm to consumers, including 1p games
copyright holders already doing preservation work with
museums
consumer harm proposed by eff is hypothetical
games aren’t abandoned when they have thriving communities,
so benefits are minimal
librarian is obligated by congress to consider adverse
effect of exemptions
eff identifies no actual nonprofit or archival project that
would benefit
online services have no impact on criticism comment or news
reporting
creates confusion among users about what is or isn’t lawful,
thus increasing piracy
impacts not just copyright but also brands and trademarks of
game publishers
---
Do you honestly think EFF's summary of these arguments was honest? This took me 9 minutes to read and type up. EFF didn't have 9 extra minutes to get it right?
In the end, all those arguments basically say "any exemption to hackers legitimizes hacking and helps pirates" along with a few tired arguments about disappearace not equaling disappearance, which is the same rule that keeps so many old books locked away decades after the rights owners have all but vanished.
It's the same song the ESA has sung for years to step in the way of legitimate hacking, and is not too far away from "won't someone think of the children!"
>In the end, all those arguments basically say "any exemption to hackers legitimizes hacking and helps pirates" along with a few tired arguments about disappearace...
No, no they don't. You're doing exactly what the EFF is doing - being intellectually lazy and recasting their arguments into unrepresentative excerpts that you then proceed to dismiss. A number of points tptacek listed are nuanced legal arguments, and I see nobody addressing them.
Umm, not really. They say there's no legal definition for 'abandoned game' but the EFF is trying to make one, as is permitted in the DMCA exemption process. They say that turning off online services isn't 'abandoning' the game... c'mon, really? They're 'only' making it unavailable and ensuring that the general public--who will collectively OWN all of this property when the copyright expires have no way to preserve their property from destruction.
Please also note that it would require a constitutional amendment to make copyright terms unlimited ... not that they're not trying to backdoor that by creating 'extensions' whenever some are about to run out.
I also read the ESA's brief, and I think the reason the EFF didn't mention many of these arguments is that explaining and then rebutting each of these arguments, many of them utterly specious, and some mutually exclusive, would result in an article too long for a casual reader, so they had to pick what they perceive as the core argument and the actual reason game studios oppose this change. Someone interested in the detail can always do what you've done, and read the actual briefs.
Some of these points are obvious grasping at straws. First, there is denying the problem exists:
- no irreparable harm to consumers
- games aren’t abandoned when they have thriving communities, so benefits are minimal
- turning off online services doesn’t abandon game
The farcical:
- exempts modifications on non-gaming platforms (by which they mean computers, both desktop and mobile)
- copyright owner entitled to benefits/revenue from online services
And the remaining arguments are mostly technical legal arguments about copyright holder rights and time durations, which may have legal merits, but don't address fairness concerns. If someone sold an e-book, then came back years later and removed half the chapters while simultaneously claiming that no one should be able to archive or distribute those redacted chapters, AND that the seller is entitled to benefits from those chapters they redacted, AND that there was no harm to consumers, we would rightly ridicule the incoherency of those mutually exclusive arguments.
If there are words in the original post that give the impression that we're providing an exhaustive summary, let me know and I'll see how we can clarify.
One of the arguments ESA made seems to resonate with people. I don't think it's at all dishonest to point that out.
We will address the comments more completely with the response filing. In the meantime, I'm glad your 9 minute list exists in case people prefer it to the original.
There was no indication given that ESA had presented arguments any more nuanced than "hacking is illegal", nor was there a link to ESA's argument. Your comment, too, is a bit... uncharitable in its assessment of our intelligence.
Here is EFF's chosen title for this article:
Videogame Publishers: No Preserving Abandoned Games, Even for Museums and Archives, Because All "Hacking" is Illegal
Well, that, and about thirty other things.
Later, summarizing EFF's own article, is this sentence, which is its own graf:
Behind this hyperbole, ESA (along with MPAA and RIAA) seem to be opposing anyone who bypasses game DRM for any reason, no matter how limited or important.
I must disagree strongly. For one, there was no need to indicate that any more nuanced arguments had been given at any point, since the argument of "hacking is illegal" is already completely and inarguably inacceptable. This is for the following reasons:
The word hacking was carefully chosen as means of emotional manipulation (see: https://www.google.de/search?q=hacker&tbm=isch ) and is used profusely in the document, mirroring the manner by which the advertisement industry burns brands into the collective memory. The excuse of it standing in for an activity defined as "modify the video
game’s access controls" is only given in a footnote, instead as a glaring bold definition, which is intended to hide the fact that the word was redefined. Further, the redefinition itself is laughable since there already exists a solid term for that act: http://en.wikipedia.org/wiki/Software_cracking
There may be further arguments in the document, but it is fairly obvious that they are not the primary payload and are only present to fulfill legal requirements and provide a hull on which the primary payload is carried.
Edit: In short: If you read this document only as a legal document instead of the piece of advertisement aimed at manipulating human emotions it is, you miss the true nuance. And that is what the EFF was crudely pointing out.
Sorry, I think that's really disingenuous. Observing that lockpicking can facilitate burglary is not equivalent to conflating locksmiths with criminals, and even the short excerpts that you quote above do not disregard context, but point out the existence of a wider context.
I don't want to get into a long argument about it, but from your tone I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy.
I think the ESA has a "legitimate interest in preventing piracy"
... and I also think that shouldn't prevent anyone from doing anything they like with any electronic devices or digital bits they acquired legally.
The sticking point is the DMCA anti-circumvention provisions. We're talking about exemptions from these provisions. These provisions should not exist in the first place. "hackers" aka smart people who use computers should absolutely be allowed to do whatever they want to make their own purchased games work, even if the ESA member companies are working against them.
Let ESA member companies do stupid DRM stuff which makes their products worse for paying customers.
Let paying customers do whatever they want with what they bought, including making it work even when it's not supposed to work anymore.
(EDIT: I should probably mention the rather undermined first-sale doctrine. You obviously should be able to buy or be given an old game from someone else who bought it, and make it work)
This is why EFF had no need to misrepresent ESA's argument: their entire audience believes that ESA's constituents don't have the right to enforce licenses that restrict end-user rights to modify game titles.
The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Promises agreed to in contracts that restrict your ability to modify games are enforceable. Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law.
You can want the law to be otherwise (I might too!), but that's not germane to the actual situation EFF faces, which is a legal argument with ESA in the venue of the Library of Congress.
> Promises agreed to in contracts that restrict your ability to modify games are enforceable.
Could you provide some case law for that statement. Contract law is a complex area, and Meeting of the minds is critical aspect in order for it to be enforceable.
As a consumer, I have bought my fair share of games, and not a single time was I informed about a contract. When talking about consent, EULA agreement is as far away from reality as you can make. People have signed away their eternal soul (http://boingboing.net/2010/04/16/video-game-shoppers.html), while a study showed that average users spend less than 8 seconds to read agreements (https://dl.acm.org/citation.cfm?doid=1753326.1753689). A similar study done earlier in 2001 looked at privacy policy documents and found that only 3% of consumer read privacy policies, and once they read it, they were less sure about what it meant than those who didn't.
But the legal system is complex and not always about common sense, so lets look what the court has said in specific cases. Looking at shrinkwrap licenses, about 4 know cases has ruled against enforceability and 3 has ruled for it (http://euro.ecom.cmu.edu/program/law/08-732/Transactions/Shr...). The primary argument seems to be about when the contract is formed, as in the store when money and product change hand, or at some later time. One camp states its in the store, and the other when the customer has performed a arbitrary number of steps (purchase, picking something up, turning a thing on, ...). The first camp is focused on the consumers ability to consent to a contract they haven't seen or understood, and the second camp is focused on current industry practices. The conclusion seems to be a distinct lack of supremer court cases to decide which camp is right.
> Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law.
So aren't you arguing for an exemption in the DMCA since contract law already covers this? What is the need to prevent this using the DMCA if it can be prevented on a case by case basis using contracts?
I do think there probably should be some kind of limited, narrowly-tailored exemption, in the spirit of "interoperability", for restoring online functionality to titles whose online components have been decommissioned.
That would leave a large list of games lost to history and never again playable. There are quite a lot of titles that were protected by dongles, anti-emulation code, etc. in addition to those where the servers have been taken down due to the publisher making no profit off of them and the existing proposal is quite reasonably tailored to preserving works that would otherwise be lost with little impact on works that are still commercially viable.
If anything, keeping old works alive helps boost the inevitable remakes, e.g. how I just bough Elite: Dangerous the other night because of what I knew about the original Elite.
But isn't the decision of whether to let old games rot or to give them new life and potentially monetize it a decision of the property owner? Why should somebody else decide for them?
They only own the copyright for the fixed term of copyright law. So in that sense, you could compare them to 'renters' as their rights will expire. Why should the public be unable to preserve what will become it's common property?
And yes, I'm aware that there are a few unusual legal constructions, such as the copyright on Peter Pan which do not expire. These are relatively few in number and outside the scope of the concern here. I don't think any video games have such a copyright, anyhow. That said, I can see legal efforts to abolish the constitutionally-established limited term of copyright.
Fair enough. I gave you some upvotes as it seems you were misunderstood.
That said, the new one looks much cooler, but it has one hell of a steep learning curve. You can die from pretty much anything, including the training to leave a station.
Accidentally shooting the station pretty much equals death.
>The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law.
Is there basis in law for the opposite? If so, could you cite that? To a laymen I'm forced to compare this to what I know - namely that there are very few, if any, purchases I could make of _physical goods_ with legal restrictions on me taking them apart, physically.
As I said I'm basically in favor of the EFF's proposal. My beef is with their mischaracterization of the ESA's position; they're making them into a boogeyman instead of acknowledging that they have some legitimate interests here and looking for a way to bridge the gap.
Using your analogy, ESA wants to ban practicing lockpicking skills in the privacy of your home because once you learned it, you could use it to commit burglary. I think EFF is completely correct to oppose it and completely justified to expose guilt by association and slippery slope fallacies in ESA's argument.
ESA has interest in preventing piracy, but that does not give them any more rights. I have interest in acquiring a million dollars, but it would be a poor argument for me to justify robbing a bank with that interest. In the same way, the fact that ESA is interested in something does not constitute good argument to prevent harmless activities having nothing to do with piracy - because there are much better and less rights-infringing ways to further the same interest.
> I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy.
Well, there's legitimate and there's legitimate. We're not discussing here whether they should try to prevent piracy, it's whether they should block efforts to get a small temporary exemption related to non-infringing uses of abandoned software put in place for the next three years.
It's frustrating to me that ESA and some of the other respondents here try to bootstrap from a copyright purpose to non-copyright ones. Nothing in this exemption would render infringement legal; if granted, it would just remove legal uncertainty from circumvention for limited non-infringing uses. In that sense, the legitimacy of the underlying copyright concern is kind of irrelevant.
> Observing that lockpicking can facilitate burglary is not equivalent to conflating locksmiths with criminals
I have to disagree with you here. Both in this filing and in their broader campaigns, they've done everything they can to conflate copyright infringement with hacking/viruses/etc. and many of their references are irrelevant or unsupported, they just want to put the words piracy and hacking together at every opportunity.
Which is itself disingenuous, as ESA member Sony is itself infamous for using malicious hacking in its attempt to stop copyright infringement (e.g. the Sony rootkit). Although I will admit that I'm maligning them given the chance. I haven't bought anything from Sony since that very day.
Apropos of being disingenuous. Sony BMG (now Sony Music Entertainment), which is infamous for using malicious hacking is not and have never been an ESA member. The ESA member is Sony Computer Entertainment. And no, it's not the same org. Both are subsidiaries of the same holding company so they are as related as HBO and Time Warner Cable or GEICO and See's Candies.
I am sorry, I don't follow.
Two different companies did two different things (installing rootkit and being an ESA memeber), you seem to believe they are the same company. I have corrected you.
What does moral culpability have to do with any of this?
Actually you've been talking to Natus, Inc. and the person you wanted to correct is Natsu, LLC. Because we're completely different imaginary entities that merely happen to share an account, you're actually the one who is confused here. Hopefully this clarifies things for you.
On a more serious note, if I can't hold the owners responsible for their actions via their own subsidiaries, then what? This is why I find them to both be 'Sony' enough to share blame and I don't particularly care for it when people try to play shell games with corporate identities. The particulars of their corporate governance are simply not relevant to what I was saying.
Ok. So you believe Sony Corp owners (who are mostly institutions) both made the decision to install rootkit in Sony BMG and signed off the ESA publication in SCEA?
Good for you, I guess. This belief is definitely more popular on HN than reality.
I'm not saying they made the decision, necessarily, only that they can be held responsible for it. If they can't be responsible for anything their corporations have done, who can be?
How about this: people who make the decision are responsible for it and people who have nothing to do with it... are not? If you have 401K you might be owning Sony yourself. If you have a savings/CD account you might also own Sony. So by your own standard you are likely responsible for every action any Sony's subsidiary and any subsidiary of any other corporation you invested do.
I could agree with that for the most part, but I have a hard time seeing how there can be no one anywhere in Sony who had anything to do with Sony's decisions.
Also, I've read a fair number of proxy statements, but I've never had a chance to vote on what sort of lobbying they should do or what projects they should work on.
I am pretty sure there is nobody anywhere at any Sony subsidiary who had anything to do with Sony Music and SCE decisions in question simultaneously. As same as there is nobody in Berkshire Hathaway who is simultaneously deciding on the candy recipies and on the insurance policies.
And I don't think that lobbying efforts are undertaken without the involvement of senior management (unlike, say, candy recipes), so we'll have to disagree here.
I think that's exactly what is happening. This is often used in politics, and is akin to "I'm just saying..."
"He may or may not have criminal intentions, I don't know, I'm just saying..."
It's intentionally drawing loose correlations and leaving the equivalence up to the reader. Once the suggestion is made, however, it's hard to dissociate.
I agree with one of the ancestor posters - the ESA has no dog in this fight other than fearing that allowing any hacking is a slippery slope, and it is in their favor to make sure "hacking" is never seen in a positive light.
I'd have to disagree based on reading the ESA's position statement. Essentially they point out that in order to circumvent the restrictions on a particular video game, one must circumvent the restrictions on the video game console, which is covered by a different section of the law.
Creating and distributing kits for the circumvention of the console restrictions has a drastically broader application than merely playing abandoned games.
Given that such an exception would essentially gut the law, the ESA most certainly has a dog in the hunt.
You have been commenting righteously about how the EFF misrepresents the ESA's position but you haven't stated what the misrepresentation is besides telling people to read the 71 page paper and that "the ESA has a legitimate interest in preventing piracy", which is the same thing the EFF is saying: the ESA is conflating hacking old games with piracy.
I'm reading between the lines here, but I think the ESA's motivation is roughly (if privately):
"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]
Yours SomeCallMeTim seems likely to be the correct interpretation of ESA's position.
What I'd like to note - as I've often done before - is that copyright is a deal with the demos whereby the copyright holder gets "limited time" [not so limited nowadays] protection in exchange for their works entering the public domain. Without the work entering the public domain the deal is very poor on the side of the people, you'd want to offer only a few years of copyright for such a poor deal.
By applying DRM or locking down games and not allowing modifications and disassembly for interop/continuation purposes the companies are not honouring their part of the copyright deal, they're making the copyright effectively void. The demos should consider such works to be no longer under copyright, the company broke the "contract".
I'd be amazed if those applying the law ever took such a democratic view in practice rather than creating a construction of the purpose of the law based primarily on the interests of those in control of media conglomerates.
It's worth noting that the obvious conclusion from your comment is that the core problem is with the length of copyright, rather than the restrictions within the law - if copyright were bloody finite, then people would eventually be able to play stuff anyway.
>if copyright were bloody finite, then people would eventually be able to play stuff anyway. //
Only if their system for locking up the content is deficient. Lets assume that it can't be cracked - the work won't enter the public domain, it shouldn't be allowed copyright protection.
It's not just about the term, though practically with a short term (7 years I call short) the effect might be largely the same - but the law shouldn't be designed around public benefit only being accessible if someone can crack DRM/encryption or reverse engineer a server or some such.
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.
Yes, I think it is. It's a 30 page document with another 3~40 pages of supporting materials, which consider things like the difference between single and multiplayer modes and so forth.
Also, the EFF article doesn't even touch on the question of what users are actually buying, but boils the entire position paper down to 'hackers are practically pirates!!' Reading the comments here, I see it's been quite successful as a piece of emotional manipulation :-/
For someone whose been flooding this thread with complaints about the EFF misrepresenting the ESA, you're being awfully disingenuous here. Here's the passage:
> 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. Still other games may use cloud servers to offload core game calculations to create more realistic game experiences. 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.
Most of this passage is a correct summary of basic facts, however the conclusion at the end does not at all follow - not even close - and you know it. Multiplayer is not about achievements, rosters, cloud computing such as with SimCity, or getting a new outfit in Minecraft. For some games, without multiplayer there is no game. There are games like the Modern Warfare series with a single-player component, however the marketing for these focuses very heavily on the multiplayer aspect, and the multiplayer aspect is why people buy them. Then there are games like Tribes, or World of Warcraft of course, which don't even have a single-player aspect. For such titles, without multiplayer support the game simply ceases to be.
But not only have they intentionally left out a huge part of what makes a game multiplayer, they have not even justified their dismissal of what they claim makes a game multiplayer! So if a game is designed in such a way that it must make use of off-site computational resources to work - leaving aside for a moment that usually when that claim is made, it's bullshit (cf SimCity) - I should not be able to simulate this resource somehow after the publisher of the game denies it to me? If a sports game can update its reference data to look at more recent statistics for players, injuries, etc., then after the publisher stops updating this reference data, I should not be allowed to update it myself? If I want to share Minecraft skins or maps or mods or whatever with my friends, I must rely on Microsoft to provide that functionality, or lose it? Whether you agree with these claims or not, these are points that must be argued, not asserted as the ESA has done here.
Frankly, after reading the EFF article, I had a low opinion of the ESA. I already had this opinion before reading the article, actually. And you are right that my impression of the ESA argument after reading only the EFF article was "the ESA thinks an exception would enable piracy". However, now that I am reading the ESA brief, I see that it is so much worse. If your objective is to defend the ESA here, I do not think getting people to read the ESA brief is such a great idea for you.
I don't think anyone here is defending the ESA's position. They are only noting that the ESA's position is not quite what the EFF says the ESA's position is. It is possible both for the ESA to be wrong, and for the EFF to have still misrepresented the ESA.
That's a 71 page document. If you understand the "more thoughtful and nuanced" argument from the ESA, would you mind writing it up? I feel like one of the services the EFF provides is reading through these documents, summarizing their arguments, and providing a "is this shitty or not" perspective to a wider audience.
I'm 1/3rd through ESA's response and it is clearly far more nuanced than EFF is pretending it is in this blog post. As a threshold matter (to adopt the argot) it should be enough for you to know that EFF is misrepresenting ESA. It's especially disappointing given that even the most charitable summary of ESA's position would still leave most of the Internet on EFF's side.
I would mind, because that would be hours and hours of unpaid work which would probably just lead to me getting labelled as a shill for the ESA by many HN readers. Sorry.
The executive summary (which begins on the first page) is only 4 pages long, which I think is a manageable read.
The ESA also seems to be off-the-mark in their longer response. They claim, for instance, that no one uses "authentication" servers. Which is just, blatantly false. They try to cover it up saying there is more than just "authentication", but that's really just trying to hide the primary motivation.
It seems more often than not that the incentive is just to sit on the rights to IP, even if you don't plan to do anything with it ever, just because there's no incentive to let things go, and there's some microscopic but non-zero benefit to holding onto IP just in case.
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).
I like how that idea gives incentives for people and businesses to hold onto the really valuable IP.
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.
There's another nice win to this type of solution: it solves the Orphan Works problem
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.
That is brilliant. It would solve the Mickey Mouse Protection Act problem as well.
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.
The only problem I see is for software that gets new versions periodically. Often times an old version is "good enough", but if it became public domain then it would compete against the newer version. Of course depending on your viewpoint that may not actually be a problem.
That's how it's supposed to work - if you don't make a better type then people will stick with the old type. It seems in many areas technology has plateaued and so companies have moved to planned obsolescence, which this is just a version of.
This just highlights to me that the current economic systems are failing and a paradigm shift is required to allow mankind to make better use of resource. We can make a bucket that will last multiple lifetimes but if you go to the shop you'll find ones that break after a short period of use.
Companies are seeking laws to allow them to engineer in obsolescence of copyright works and prevent those who purchased copies of those works from working around that obsolescence. Rather like making cars with closed engine bays and legislating against owners using tools to access the engines for repairs ... no doubt that will come, auto-mobile computers are starting to make car repairs rather like this already.
There are way to little responsibilities for the copyright holders compared to the rights are able to enforce.
Copyrighted works could be treated comparable to undeveloped land if not used. Meaning works currently not being commercially available in a supported medium under reasonable conditions from the rights holder. If available the rights holder may either pay an annual tax (much like land value tax) or release the work into public domain.
Every time there is a new device/platform released, an opportunity arises for old games to make comeback and money to be gained. Whether it's right or wrong to make money off it... I don't know.
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....
You make a very interesting point about emulation. For older consoles emulation was essentially guaranteed by Moore's law (and specifically the frequency scaling that went for a while). For a slowing down Moore's law, may we reach a point where real time emulation of a different architecture is just impossible? (and instead some kind of translation will need to be done, à la wine?)
An advantage is that architectures are converging anyway to PC-like instead of exotic stuff like Cell.
A lot of emulators work that way, and have for a long time. N64 on a Pentium II with only twice its clock rate, etc.
Real time emulation of specialized hardware with 100% coverage has never been straightforward. Massive amounts of extra computing power won't save you from having to do specific calculations with low latencies. I'd say it's been impossible to completely capture arbitrary machines for quite a while now. But in practice you can fudge the differences and emulate with similar amounts of power.
Exactly. If you're happily playing Abandoned Title III, why would you need to buy New Hotness XXVII?
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...
> None of the games in question are making any money, and the publishers don't expect to make any money in the future on them.
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.
As someone who works in the arts, I disagree. You're assuming a 'lump of attention', in which if attention is paid to public domain work (eg a classic silent movie) some other modern work will have to go unwatched. That's true in the very short term, insofar as most people like to watch one movie at once (or play one game at once, or...adjust as appropriate), but a great deal of cultural work depends for its aesthetic effect on consumers' familiarity with prior work, notwithstanding the fact that one is 'competing' with it. The project I'm developing right now includes a bunch of references to other work, some of which is due to fall into the public domain in a few years, and other work which may or may not be in the public domain (I'm actively following a piece of litigation to find out whether I need to cough up thousands of dollars in licensing fees to have someone sing 'Happy Birthday', for example).
Have you never seen or heard of the Wii virtual console or any of the Sega\Actvision\whoever classics collections? Just because they don't sell them right now or expect to make money on them in the next 20 mins doesn't mean there is no money expected from them in the future. With the current copyright law the future is for fucking ever, and who knows when the next round of nostalgic resurgence is?
Just like the Disney vault BS, absence makes the heart grow fonder.
It's absolutely about preserving their ability to resell the games later. Maybe slightly upscaling them so they can charge full-price, but, even if not, think about how many times Nintendo's sold, say, Super Mario Brothers. No coincidence that they've been one of the most aggressive pursuers of people distributing ROMs.
Because past products compete with present products. This is why the movie and record industries have been aggressively antihistorical: you can't sell the kids your new crap if they know it's crap.
> I don't understand why the ESA cares at all about this.
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.
It isn't about old games, it is about new ones. They think by giving exceptions to old games it will make it more likely, easier, to give them to new games. Or that people will find it more acceptable.
Interesting. I do volunteer work at a videogame museum and I was just about to propose a system for preserving videogame art assets and enabling presenting them outside the context of the original game. There is a problem with the content of old games being lost due to only existing in idiosyncratic formats in hardware ROMs. Also, it poses a curatorial challenge to present the visual art at the end of a game with a 50 hour play time.
I guess the industry doesn't want us to do that!
(Disclosure: I work with the Oakland museum mentioned.)
Serious question: how often do you approach the publisher and ask for their help with this? Have you developed an administrative system that could present these requests in a standardized and actionable way to the publishers' legal departments, or just the technical system?
As far as help goes, we actually don't need technical help. (I won't expand on this, of course.) It is mostly a matter of getting permission. As far as an administrative system for asking, there isn't such a system. My understanding is that permission comes most reliably through personal contacts with company insiders. Asking legal departments is usually counterproductive -- after all, if you worked in a legal department, what motivation would there be for you to say anything but "no?" Saying "yes" has all the possible downsides and no apparent upside.
EULAs aren't laws. I can't agree to something illegal, nor can I agree to give up rights guaranteed to me by law. It all varies by jurisdiction, and fine print designed to obfuscate the fact that it wasn't a sale probably wouldn't hold up even in jurisdictions where it would otherwise be possible. All of this would have to be tested in various jurisdictions in court.
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.
> EULAs aren't laws. I can't agree to something illegal, nor can I agree to give up rights guaranteed to me by law.
Actually, you generally can do the latter, unless the law specifically makes the right not waivable. Contracts, in general, are about giving up rights guaranteed by law.
EULAs can't really be considered the same as contracts in a philosophical sense, since they're presented after sale.
Back in the 90s, there was a Microsoft printed EULA that said that breaking the shrinkwrap counted as agreeing to the EULA, but you couldn't access the EULA without breaking the shrinkwrap (and opening the box). :)
They're contracts. Contracts are binding on the signatories. If you don't like the terms, you don't have to accept them. Also, contracts are evaluated based on what they say, not on what you think they ought to say. I'm no fan of the game publishing industry, but just because you don't like the idea that you're buying a license to use the game in a particular way rather than in perpetuity doesn't mean they're breaking the law.
EULAs aren't contracts; contracts require compensation in kind. You already bought the product (a physical CD containing a game, say), and the EULA wasn't a part of the negotiation of that sale. The EULA only comes after, and you get nothing in exchange for agreeing to it, so it doesn't have any legal force.
Imagine buying a home, and then on move-in day you find another contract taped to the front door that asks you to sign it in exchange for keys. In such a situation, the obvious thing to do is to just ignore the exploitation and call a locksmith. It's your house, after all; you have a prior negotiated sale that says so.
EULAs work if you had to agree to them in advance of the product sale, of course. If you buy something from an online service, chances are you agreed to its EULA before being allowed to buy it. In fact, for "app stores" in particular (iTunes, Steam, etc.) individual products sold therein could have a post-install license with implicitly-fully-enforcable terms requiring no additional agreement, because the terms you agreed to when registering for the store could obligate you to abide by any additional terms shipped with the individual products.
I find myself wondering if you have ever sat down and read a EULA carefully, because typically it includes a statement like this close to the beginning (this one from EA's EULA for The Sims 3, but IMHO pretty typical):
Right to Return: If you do not agree to the terms of this License, and if you purchased this game from
a physical retail store in the United States, and if you have not installed or used the Software, you may
return the Software for a refund or exchange within thirty (30) days from the date of purchase by
following the instructions for return available at warrantyinfo.ea.com.
Most of them say the same things with minor variations, though I don't think it's worth doing a comprehensive survey for a HN comment. What can I say, I'm nerdy enough to read these things to satisfy my own curiosity.
There are lots of things which aren't contracts which have legal force, so this is a huge non-sequitur: you can't leap from "EULAs aren't contracts" to "doesn't have any legal force." Maybe the most charitable way to read you then is saying that it's an "unenforceable contract". But courts are often willing to enforce such contracts, so that's not really true either. Courts have given various reasons why they've enforced EULAs, but I sense that the deepest reason is as a form of syntactic sugar: there is a "right way" to formally do this sort of thing, but that "right way" is much more inconvenient than this way, so this way is allowed too. Yes, technically the store that you bought Adobe Photoshop from should have had a printed contract which they presented to you when you bought the software, much like the many papers you'll have to sign when you're buying a car -- but because you're not buying from Adobe but from a third-party reseller in a vast network, a click-through license makes a lot of economic sense in a way that the "now let's negotiate for the keys to this house!" after-the-fact contract doesn't.
In Australia you can't actually have a valid contract if one party has to give up their rights under consumer law or if it can be proved that either party didn't act in good faith, or if either party was given false pretences as to what the contract contains, which has actually helped out a lot of people here who are tripped up over very cryptic small print, like flood insurance that would cover flash flooding from rain but not tidal inundation.
There is a difference between waivers of specific rights that courts will not enforce (for instance, employee non-competition agreements in California) and the notion that contracts are in the most general sense about enforceably agreeing to give up rights.
To make the Australia comparison more interesting, can I ask if there are consumer law rights that make anti-jailbreaking and copyright terms in game EULAs unenforceable there?
You are right that a EULA can't violate the law, but the law doesn't say you get to keep playing it forever or that you can produce derivative copies.
Contracts are VERY powerful in this country. The old saying that you can't sign your rights away is totally wrong. The default is that you can sign whatever rights you have away unless it is forbidden under the law.
Four words for anyone who thinks they are not bound by the terms of the EULA: Vernor v. Autodesk, bitches. In the USA, EULAs are binding contracts and software distributed under them is licensed for use, not sold. You break the EULA, you lose your license. That's the law.
Except if your disk is damaged and you want to download a working version or get a replacement disk, then it's not just a licence, you gotta buy it again. They want it both ways
That always drove me nuts. It's got to be one or the other. Seems like there might be an interesting court case to be made by say the Internet Archive:
1. Buy a CD and then damage it
2. Then ask for a new one for free, with proof of the damaged one
3. When they refuse, get your lawyer to send the same request certified mail
4. When they officially refuse, sue in small claims and they'll get it tossed out since "you bought it" (hopefully)
5. Tuck this in your back pocket and start archiving and making them re-playable galore
6. When publisher X who told you it was a sale sues for "hacking" go to court for a summary dismissal based on the previous court case where they argued "hey you bought it!" and a judge might have no choice but to agree
In this scenario the game disc can still constitute a license, not the actual game. The contents of the disc would simply be a convenient installation method.
Sure, but if it's a license then the disc is only of marginal value and they should replace it for cheap/free since the LICENSE is what constituted most of the cost, not the PHYSICAL MEDIA.
Ideas like this make me want to study law. Not to be a lawyer, anymore than I study programming to be a programmer, but to get interesting things done.
If it wasn't for hacking, we would never have had the first video games, and there might not be an ESA to care about it. Most early video games came about by hacking around on the computers and video terminals of the day, making them do things they were never intended to do. The same goes for many early console games on Atari and Nintendo systems, where the programmers found ways to make games do more than the system designers thought possible.
It sounded to me like the ESA were equivocating. Their usage of "hacking" seems to be deliberately vague in order to strengthen the connection with piracy, where more precise language would have made the claim sound even weirder.
It was the ESA who said out right "all hacking is illegal", not me, not the EFF. By that logic, this very site is full of nothing but hardened criminals bent on piracy and wrongdoing, and its very name is contraband. That's just plain silly.
Yes, they said "all hacking is illegal", and given the definition they're using for "hacking", that's a perfectly reasonable thing to claim. The real debate is whether modifying computer games counts as "hacking" under that definition. Debates just about definitions aren't interesting.
It bothers me that the very "hacking" that made video games even possible (modifying the console or computer system to do what it wasn't intended to do) is now being called illegal by the ESA. I maintain that there wouldn't be any video games to hack, morally or immorally, without old school hacking from the late 1940s through at least the 1980s.
The ESA are the ones trying to redefine the language to suit their pocket books. They are the ones trying to claim that "hacking" can only mean circumvention of copyright protection, when the word has a place in many different contexts and applications, and can be good/moral/legal or bad/immoral/illegal, or any combination. Even said circumvention can be for good or fair use reasons, as the EFF is arguing.
That is not what ESA is saying (they are saying a bunch of other dumb things), though it's understandable why you'd think that, because it's what EFF wants you to believe.
I was basing what I said off of the actual filing, not the EFF's pearl-clutching.
"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."[1]
They are equating hacking with piracy, full stop. They are saying "regardless of the intent of the hacker, the hacker is committing piracy". That's a scary precedent to set.
Going after retrogame pirates of your out of sale game seems like a really stupid business decisions. If people still play your old game after all these years, despite the crappy graphics, it must have a lot of things going for it.
EFF is, unsurprisingly, misrepresenting ESA. ESA's objection is not that "this is hacking and hacking is illegal". "Hacking" is simply the term of art the ESA response chooses to use for the reversing and manipulation of game titles. EFF is trying to hang ESA on that impolitic choice of words.
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.
There have been and there are games on the market where you cannot operate any functionality without being online and connected to the publisher's DRM service. Single player mode is disabled.
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.
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].
That's true, but then, those titles haven't been abandoned, have they?
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.
Also consider the case of games like Starsiege: Tribes, where, to my recollection, it was perfectly possible to set up online game servers, but the master server was hard-coded in the executable, so anyone wishing to play this game nowadays must "hack" it.
On consoles the case is even worse. Take for example the case of http://en.wikipedia.org/wiki/Destiny_of_Spirits , a game for which the servers will be shut down on June 30, 2015. There is currently not even a feasible way to gain any kind of access to the executable itself to redirect it somehow, since despite the fact of it being "free", it's on an incredibly locked-down platform. Further, despite it being free, it has microtransactions and there will likely be a good number of people who spent preposterous amounts on it, who will be locked out of it entirely.
Frankly, there is a myriad of games out there with online components who are at this date straight-up broken and unusable pieces of software, and as far as i am concerned any attempt to portray this as anything other than fact is a bald-faced lie.
Edit: Also, as for you being boxed into something, you're making the age-old mistake of saying "don't", without providing an alternative "do". (In this case the "do" would be concrete examples of what the EFF should've said instead.) It's too late to fix that now, but maybe keep that in mind next time.
EditEdit: Also consider that effectively the two games SC2 and D3 are abandoned as far as customers are concerned who naively bought them to play as single player games and have no internet connectivity. A similar case is also Elite: Dangerous, which was promised as an offline- and online-game, but in which the offline- component was cut mid-development despite many of the kickstarter investors having invested based entirely around the premise of obtaining a working singleplayer product.
> it was perfectly possible to set up online game servers, but the master server was hard-coded in the executable, so anyone wishing to play this game nowadays must "hack" it.
I assume it was an URL so a modified hosts file without touching the game itself would be enough. If it was a fixed IP it could be also handled outside the game.
What happens when the companies go out of business? I suppose at that point if you break the law to get the game working there's no one left to sue you. Just like how you can circumvent existing abandonware's copyright restrictions to get the game working, (or even to restore multiplayer), acting illegally, and be practically fine.
>"Hacking" is simply the term of art the ESA response chooses to use for the reversing and manipulation of game titles.
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.
I have read part of the ESA brief. I have skimmed through the rest. If I was going to be charitable to the EFF when reading their article here, I would say that there is so much ridiculous bullshit in the ESA brief that the person who wrote the EFF article probably just picked the most egregious example they could find before their eyes glazed over (or bled) and then focused on that. Yes, the EFF has failed to encapsulate the ESA position well, but frankly the ESA position is based largely on specious logic and willful ignorance. To the point that I'm not sure that it's possible to encapsulate their position well, for much the same reason it can be difficult to encapsulate the position of an obstinate, spoilt child. They are ignoring important facts in places. Most places. They are taking conclusions predicated on heavily biased samples of irrelevant minutiae, and presenting them as sweeping indictments of the proposed exemption. They are, in short, arguing in an incredibly deceitful, deceptive way, even by video game industry lawyer standards.
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.
The whole concept of a legal brief is that you devise every argument you possibly can and throw them all at the wall/venue to see what sticks. These are documents written by lawyers to advance legal arguments; they aren't position papers. It is a little unfair to ding them for following the protocols of the law.
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.
I've read enough of your other replies ITT to know you aren't exactly sticking up for the ESA, but rather playing your usual devil's advocate/contrarian role :-) You're not getting boxed in, at least not by me.
Let's say the ESA knows of some solid reasoning which will support its point for most reasonable people. If it does, it is certainly not presenting them in this legal brief. In that case, something is very wrong with our legal system, because then things like facts and coherent logic have a value of about ε, and that's harmful. And if that's the case, then you are right that it is not exactly fair to hold the ESA to what they've put down here, as though it's a position paper. But if that's what's happening, then to make that excuse for them (especially when they have not, as far as I know, written down the 'real argument' anywhere else) feels an awful lot like supporting a broken legal system, which I don't want to do.
I did think of your point as I was typing up my earlier response, however I decided I don't care. A legal brief and a position paper are not the same thing, but they should be correlated. And by 'correlated' I don't just mean that they share the same conclusion - they should be based on roughly the same reasoning. I know that you're sort of just supposed to use whatever tactics you can to win, and I recognize there is some value to having a system where the goal is to win rather than arrive at the truth. But if that system encourages twisting the facts to the point that you're basically just lying, then it goes too far. And I'm not going to encourage that by making the excuse "oh well they're lawyers so what did you expect". I demand better.
For what it's worth, while I do think our legal system has a great many problems, I don't think it is quite so bad as to support this hypothesis. I think the ESA has presented a poor argument because their position is poorly supported. I think they have twisted the facts and omitted other ones because they know this. I believe they are using these deceitful and deceptive tactics not because they are trying to support a reasonable cause within an unreasonable system, but because they trying to support an unreasonable cause within a framework that is, for all its faults, still sometimes capable for recognizing such bullshit for what it is.
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.
I actually have no idea if ESA has a case. This is a complicated situation. I generally want licenses to be enforceable but reasonable, and a narrowly tailored copyright exemption might be a good way to ensure they're reasonable.
What I am sure of is that EFF's blog post blatantly misrepresents the case ESA is trying to make.
Ah, whoops. No idea why I thought you were a gamer, sorry.
I agree. The blog post would carry more force by presenting the ESA's points and demonstrating why they're unrelated to the idea at hand: to revive an abandoned videogame, one simply needs to hack together a fake gameserver. That's doable without modifying anything, so the legality of hacking consoles or jailbreaking shouldn't be at issue. Etc. If the EFF were to point out how strange those arguments sound when contrasted with the reality of what people want to do, it would be much more effective.
Thanks for breaking out the ESA's points from that 71-page document. They don't make it an enjoyable read.
I no longer expect the EFF to represent anything faithfully, really. They seem incapable of genuine honesty and mostly go for the shock-and-scare routine they've seen their adversaries perfect. Consequently, I've bucketed them into groups like the ESA and just ignore them now.
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...
I didn't see I somehow missed the finish on this comment!
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.
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.
That's the point of property concept: if you own something, you can do unreasonable and even stupid things with it, if so you choose. So, although it saddens me that they choose this course of action, they're completely in their legal right here.
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.
how about when I have the game but cannot play it on my current machine because the OS doesn't support it any longer? Example, many games require Rosetta to be available on OS X but that support was dropped ages ago.
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.