The ESA Won’t Allow the Preservation of Abandoned Games Because It’s Similar to “Hacking”

burning disc 04-08-15-1

File this under the completely absurd – the Entertainment Software Association, the trade association that essentially governs the video game industry in the United States, is blocking attempts to enable the protection of individuals who modify abandoned video games – in order to keep playing them.

So what is happening exactly? The Electronic Frontier Foundation is working alongside law student Kendra Abert, to petition the Copyright Office for an exemption to the Digital Millennium Copyright Act. They’re doing this in order to protect the rights of the consumers who modify games so they can continue to use their online functionality or multiplayer, even after the developer or publisher has shut their servers down.

This essentially boils down to where the rights of the consumer end, and where the rights of the developer and publisher begin. Section 1201 of the DMCA makes it very difficult for enthusiasts to legally modify these games, so that they might continue enjoying the product they purchased, legally. So what did the ESA do in response? They have opposed this plea for an exemption, because in their minds, modifying games to continue playing them is too similar to “hacking,” and all hacking is “associated with piracy.”

We here at Niche Gamer stand with the consumer in all regards, so it’s a bit strange to see the ESA making these claims. Allowing these exemptions to the 1201 blanket ban of “hacking” would apparently “undermine the fundamental copyright principles on which our copyright laws are based,” according to the ESA. They go on to say that passing the exemption would make people think that “hacking—an activity closely associated with piracy in the minds of the marketplace—is lawful.”

This kind of legal red-tape is making it especially difficult for organizations like the Internet Archive or museums like California’s Museum of Art and Digital Entertainment preserve games that had online multiplayer or functionality of some kind. Clearly, this isn’t a matter of piracy but rather the power resting entirely in the hands of the publishers, and not the consumers.

What are your thoughts on the DMCA, and section 1201? Sound off in the comments below!

Brandon Orselli


Owner and Publisher at Niche Gamer and Nicchiban. Outlaw fighting for a better game industry. Pronouns: Patriarch, Guido, Olive.

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  1. Kansokusha
    April 8, 2015 at 9:32 pm

    “undermine the fundamental copyright principles on which our copyright laws are based,”

    Well there’s your problem. These copyright laws are dinosaurs that are obsolete with the rise of digital media. Rework them from the ground up or continue running into problems like this.

  2. Cy
    April 8, 2015 at 9:46 pm

    “They go on to say that passing the exemption would make people think that “hacking—an activity closely associated with piracy in the minds of the marketplace—is lawful.”

    So, basically the same justification people try to use to ban ecigs, then. It “normalizes” thoughts about certain things or activities that they don’t approve of.

  3. Grey
    April 8, 2015 at 9:53 pm

    As always, I try to imagine seeing something like this out of the automobile industry.

    “We no longer produce the vehicle you drive. You cannot buy that car model in any of our dealerships. We no longer make parts for it and none of the parts for a similar model are compatible off the shelf and require someone to perform laborious machine tooling.

    However, if you attempt to maintain your vehicle in working order independently, that will make people think that mechanical engineering-an activity closely associated with car theft in the minds of the marketplace-is lawful.”

  4. Nonscpo
    April 8, 2015 at 10:16 pm


  5. Carl B.
    Carl B.
    April 8, 2015 at 10:28 pm

    There are games that you can no longer buy that were quite popular. Look at Revenant. Or Witchaven 1 and 2. Or Harbinger. All of these are, as far as I know, not on any digital service and have long been abandoned by their publishers. So how do we play them if you get the urge and no copy exists?

    There are underground torrent trackers which keep these games alive, and the one I know of has been around for ten years and is still going strong, so I’m not too worried about the ESA.

  6. Dewey Defeats Truman
    Dewey Defeats Truman
    April 8, 2015 at 11:40 pm

    They can make GZDoom as illegal as they want it’s not gonna stop it from existing.

    That may be a poor example I admit, but point is as much BS and anti-consumer as this is it’s not like it’s really going to stop anybody.

  7. sanic
    April 9, 2015 at 12:27 am

    I would like to know what the ESA thinks hacking means…

  8. kunuri
    April 9, 2015 at 1:06 am

    It’s a Unix system, I know this!

  9. Anonymous
    April 9, 2015 at 1:31 am

    Yeah, the ESA like the IGDA and all those other organizations suck.

    Useless names and money sinks at best, actual thorns under the nail of the industry at worst.

    High payed managers or obscure interests benefit more from them than anyone else.

    The EFF is a real example of what a good organization should look like.

  10. Karo
    April 9, 2015 at 1:44 am

    I don’t give a fuck. I’ll do it anyway.

  11. Erthwjim
    April 9, 2015 at 2:41 am

    Yeah cause the dmca has done such a good job of preventing piracy so far.

  12. Audie Bakerson
    Audie Bakerson
    April 9, 2015 at 3:04 am

    Why use an image of a disc in flames and not the Spookies logo?

  13. Sarracenia
    April 9, 2015 at 4:03 am

    And next on our list for the day, we’d like to suggest a ban on driving cars, because it’s too similar to the action of running people over, and we don’t want people to think that that’s legal.

  14. Choppinfoot
    April 9, 2015 at 4:06 am

    Now this is a surprise. It’s due to these “modifications” that games like Freelancer can be enjoyed even today, despite relative obscurity.

    What does this even accomplish?

  15. Thanatos2k
    April 9, 2015 at 4:50 am

    ESA is a joke. The FCC of video games.

    “Hacking” IS lawful.

  16. Zombie_Barioth
    April 9, 2015 at 7:01 am

    So would I, last I checked most people associate hacking with bypassing security, not piracy. People know what hacking is, people only associate it with piracy because they know hacking enables use of cfw and pirated content.

  17. ronin4life
    April 9, 2015 at 12:26 pm

    Not to argue for the ESA or over reaching publishers, but changing an old game in order to preserve it doesn’t sound much different to changing a newer one for piracy purposes insofar as the tools and skills required. It sounds like it is “Retro-active Piracy” of old EULA’s, as far as the descriptions here make it seem.

    The ‘Fear’, then, is two fold: Allowing people to circumnavigate even old games gives legal precedent to allow modifying any title at all, regardless of the reason for either independent modification/break, and second if people are doing this in an organized fashion for older games that gives them the power to do it to newer ones as well.

    Obviously these preservationists should be given more head space to do what they need to do, and the concerns from the ESA are overblown. But they don’t sound totally ungrounded.

  18. DeusEx
    April 9, 2015 at 5:09 pm

    New Law: For digital media, if you fail to remaster or rerelease your copyrighted material every 15-20 years (so in line with each DVD to Blu-ray cycle and what not) then you forfeit that propery to public domain.