Category — Copyrights
Librarian of Congress Exempts ‘Abandonware’ DRM Circumvention for ‘Preservation” from DMCA Liability
In its recent triennial rule-making with respect to exemptions from the prohibition against circumvention of technological measures that control access to copyrighted works, the Librarian of Congress, James H. Billington, has ruled, again, that persons making non infringing uses of older abandonware video games, as described below, will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years. Specifically exempt from the prohibition are:
…video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
Dale's Comment: Firstly, despite many reports to the contrary, this is not a wholly new ruling. The 2003 triennial rule-making contained the following very similar exemption:
… video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.
Indeed, this rulemaking is more restrictive than the previous rulemaking because it now specifically limits such circumvention for preservation purposes as I discuss below.
Secondly, I have read many blog 'interpretations' of this exemption over the last few days (not linked to here for obvious reasons) and most bloggers don't seem to understand this exemption. Most are interpretting this exemption as a free-for-all right to decrypt, copy, distribute and use any abandonware on any system. My reading of this exemption is much more limited.
Clearly the circumvention exemption for "archival reproduction of published digital works by a library or archive" doesn't apply to the average gamer. However, the first portion of the exemption "for the purpose of preservation" would apply to the average gamer.
It appears the average gamer has the right to circumvent technological measures used to protect video games in obsolete formats that are already owned by the user for the purpose of preservation when the gaming console, for instance, is no longer manufactured or reasonably available in the commercial marketplace.
This DMCA exemption does not exempt other provisions of Title 17 (the U.S. Copyright law) that otherwise generally prohibit copying, distributing and otherwise infringing copyrighted works.
So, what exactly does this exemption allow you, the owner of a video game in an obsolete format, to do. It allows you to circumvent the copy-protection scheme used to protect obsolete format video games for the purpose of preserving them (backing them up and, presumably, using the backup if the original copy becomes defective). That's pretty much it. Indeed in the Librarian of Congress' commentary on the exemption he flatly says:
"…the sole basis for this exemption is preservation and archival use…"
An important point here is that Billington did NOT exempt non-obsolete formated video games from the DMCA. So, it is still illegal under the DMCA's (17 U.S.C. § 1201(a)(1)(A)) to circumvent DRM on modern video games for the purpose of backing them up – let alone for any other purpose.
This exemption expires after three years unless the rule proponent (in this chase the Internet Archive) proves their case again. Namely, that without the exemption:
current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.
The FBI has shut down an illegal game operation that allegedly provided subscribers with fraudulent service to, and code for, Lineage II. Apparently L2Extreme.com (now seized by the FYI) had some 50,000 active users. NCSoft says it lost millions in revenue from this. The operators of L2Extreme.com face a fine of $250,000 and up to five years in jail. NCSoft has said it has no plans to pursue the users.
This case is different from the Blizzard v. BNetD case because in the BNetD circumstance, they had reverse engineered the Blizzard server software and, presumably, wrote emulating software in a “clean room” without access to the original Blizzard server software – thus no direct copyright infringement. In the L2Extreme case, it is alleged that the L2Extreme.com server software was pirated (ie: copied) NCSoft server software.
Game industry lawyer, Jim Charne discusses in-game music licensing and strategies. Music in games, as in motion pictures, consists of two components. These are licensed incidental soundtrack music, and underscore composed specifically for the project.