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The ESA and EFF are fighting for the history of video games

by Eric Frederiksen | April 11, 2015

The year is 2099. In this dark timeline, some historically significant console-based online game has shut down. As a video game archivist, you want to run a hacked server to keep the final version of the game online. The cyberpolice blast through the door (with a laser, probably) and arrest you.

Alright, so maybe that’s not a likely future, exactly. Except for the laser part.

But right now, the Entertainment Software Association and the Electronic Frontier Foundation are in a heated argument that could determine how archiving is handled for games that run as services rather than standalone experiences. The ESA is a group that exists to defend game industry interests, while the EFF looks to defend digital rights.

The EFF recently contacted the U.S. Copyright Office to try to obtain legal protection from the Digital Millenium Copyright Act for modifications done in an effort to preserve games and maintain their playability. While it’s certainly possible to do things like modify a console or use a hacked server to run a game, it isn’t actually legal.

The ESA opposes this. A letter to the copyright office says that “permitting circumvention of the access controls on video game consoles will increase piracy, significantly reduce users’ options to access copyrighted works on video game consoles, and decrease the value of these works for copyright owners.” They add that these hacks are done primarily for the purposes of piracy and that fair use doesn’t make up a significant portion of the interest.

Polygon points out the the ESA brings up its own participation in museum exhibitions as evidence that it supports, rather than opposes the retention of gaming history. They worked with the Smithsonian Institute to run an exhibit called The Art of Video Games.

In short, what the ESA is saying is that they should have a say in what history is and isn’t preserved, and that historical preservation is a distant second to the company’s bottom line.

Preserving cultural artifacts – television, movies, comics, games, really anything we create – is important. Studying current material can tell us things about our society now, and studying the past has lots to tell, too. But the ESA isn’t entirely wrong, either. I can’t count how many times the phrase “fair use” was used sarcastically by friends at LAN parties back in the day as they shared bytes back and forth across the network.

Grim Fandango is a recent example of the necessity of the protection, though. The game is considered by many to be a seminal work in game writing and art direction, and for well over a decade it was unavailable. Only thanks to its creator, Tim Schafer, putting in a bunch of time do we have a properly playable version of the game. Unfortunately though, Schafer is the exception to the rule. Most creators aren’t too interested in going back and looking at their previous works, leaving it up to archivists and enthusiasts to preserve these games.

One such archivist spoke to Polygon anonymously, calling the ESA’s opposition “the most terrifying thing I’ve read in a very very, VERY long time.”

The EFF is a tenacious group, and they’re certainly not done fighting, but it’s frustrating to see the ESA, an organization that represents the industry, so uninterested in its history.

Polygon

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Eric Frederiksen

Eric Frederiksen has been a gamer since someone made the mistake of letting him play their Nintendo many years ago, pushing him to beg for his own,...