The Digital Millennium Copyright Act (DMCA) was passed in the US in 1998, at an early stage of the shift to a digital world, with little concern for the serious harm it would cause as everything became suffused with software. The problem is that the DMCA prevents circumvention of copyright protection measures (generally known as “digital rights management”, or DRM), even if the purpose of that circumvention is completely legal. This means that if a work’s copyright has expired, it would be illegal to access the work if doing so required circumvention of any protection that had been applied. In effect, copyright term would become infinite.
As a sop to those who warned about the problems this would cause, the law requires the US Copyright Office to review exemption requests, and grant those it deems appropriate. This is known as the Section 1201 exemption process, and takes place every three years. The latest batch of exemptions has been handed down, and two of them are particularly interesting for what they tell us about copyright and its fans. One of the applications concerns providing remote digital access to out-of-print video games. As the Video Game History Foundation explains:
For the past three years, the Video Game History Foundation has been supporting the Software Preservation Network (SPN) on a petition to allow libraries and archives to remotely share digital access to out-of-print video games in their collections. Under the current anti-circumvention rules in Section 1201 of the DMCA, libraries and archives are unable to break copy protection on games in order to make them remotely accessible to researchers.
Note that this access would only be for researchers – a small, very specialised class of users. Moreover, this is about accessing out-of-print video games – that is, not ones that are still commercially available, and therefore no revenue would be lost. These represent the vast majority of US video games: according to the Video Game History Foundation, 87 percent of video games released in the United States before 2010 remain out of print. And yet the US Copyright Office turned down this minor request for something that would in any case be reversible, allowing any problems to be rectified, or the exemption to be withdrawn completely. The Video Game History Foundation says:
Unfortunately, lobbying efforts by rightsholder groups continue to hold back progress. During our hearing with the Copyright Office, the Entertainment Software Association (ESA) declared that they would never support remote game access for research purposes under any conditions. The game industry’s absolutist position—which the ESA’s own members have declined to go on the record to support—forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable.
This “absolutist position” – regarding copyright as something that is sacrosanct, and must never be touched in any way – is widespread throughout the copyright world, and has been a problem for years. As a post by Kathleen Burke on the Public Knowledge Web site notes about a previous round of exemption requests:
The copyright interests that typically oppose an exemption request are almost always third party copyright interests that seem to oppose every exemption request just for the sake of opposing exemption requests. For example, in the most recent 1201 proceeding, the Motion Picture Association, Entertainment Software Association, and Alliance for Recorded Music lodged oppositions in 14 out of the 17 classes of copyrighted works under review for exemptions.
However, it would be unfair to say that the US Copyright Office never grants exemptions to copyright protection that could have a major effect on our lives. Here’s one from the most recent set, explained here by Public Knowledge:
Today, the U.S. Copyright Office partially granted an exemption requested by Public Knowledge and iFixit to allow people to circumvent digital locks in order to repair commercial and industrial equipment.
This is potentially important, because such digital locks are pervasive in a world where all kinds of commercial and industrial equipment contain software. Being able to fix their problems without needing rarely-granted permission from the manufacturer would be a breakthrough in establishing a right to repair. A pity, then, that the US Copyright Office didn’t actually grant that general exemption, but only an extremely circumscribed version of it:
The Office did not grant the full scope of the requested exemption, but did grant an exemption specifically allowing for repair of retail-level food preparation equipment – including soft serve ice cream machines similar to those available at McDonald’s.
So, no, academics won’t be able to carry out research remotely on out-of-print but culturally important video games; however McDonald’s will, at last, be able to repair its ice cream machines. Aren’t we lucky?
Featured image by Stable Diffusion.
