Every three years, and sometimes longer, the Library of Congress asks the public what exemptions it wants when it comes to the anti-circumvention clause of the DMCA. This clause makes it illegal to crack any kind of technological protection measures (DRM) in order to do something with a copyrighted work that the copyright holder doesn’t want you to do. This means that you can legally copy your legally purchased CDs, but not your DVDs because DVDs have DRM on them. It also means that once a game developer or publisher stops supporting the DRM your game is packaged with or a console manufacturer stops supporting a console you are out of luck. At least that was until today.
The Library of Congress has approved two exemptions (pages 51-56 and 68-69) to this rule when it comes to video games. The first is that it is now legal for you to crack the DRM on your legally purchased games if the developers stop running authentication servers. This will allow you to legally bypass the DRM in order to access single player and local multiplayer. However, the LoC drew the line at accessing online multiplayer and MMOs.
Based on a review of the evidentiary record, the Register recommended an exemption to allow continued gameplay and preservation activities when developer server support for a video game has ended, though one more circumscribed than that proposed. With respect to gamers, the Register concluded that the record supported granting an exemption for video games that require communication with an authentication server to allow gameplay when the requisite server is taken offline. The Register explained that the inability to circumvent the TPM would preclude all gameplay, a significant adverse effect, and that circumvention to restore access would qualify as a noninfringing fair use. At the same time, the Register determined that proponents had failed to provide persuasive support for an exemption for online multiplayer play, in large part because it is not clear on the current record how the provision of circumvention tools to multiple users to facilitate an alternative matchmaking service could be accomplished without running afoul of the anti-trafficking provision in section 1201(a)(2).
This means that the proposed exemption for cracking online multiplayer could not happen without violating the DMCA rule banning the distribution of DRM removal tools. So even though you can legally crack your games, it is still illegal to distribute the tools needed to do so. Kind of defeats the purpose of the exemption.
This particular exemption applies to both individual game owners and for libraries and museums that wish to preserve games for posterity. However, the exemption does not apply to for-profit businesses, only non-profit.
The other exemption applies directly to cracking video game consoles. This one is far more strict in its application than the exemption outlined above. In this exemption, the LoC has approved the ability to crack console DRM solely for the purpose of game preservation.
But because the risk of piracy is much lower in a preservationist setting than with respect to gamers at large, the Register recommended that preservationists have the ability to circumvent TPMs controlling access to video game console software when necessary to maintain a console game in playable form.
However, the LoC refused to approve a similar exemption for cracking consoles for personal uses.
Maneesh Pangasa filed a petition proposing an exemption to permit jailbreaking of home video game consoles for an assortment of asserted noninfringing uses, including installing alternative operating systems. The Librarian rejected a similar exemption in 2012 because of substantial concerns about video game piracy.
The LoC approved a number of other exemptions, and reaffirming some already in place, including jailbreaking phones for the purpose of switching carriers, making copies of films for education purposes, cracking DRM on car computers, and cracking DRM on 3D printers in order to use third party materials. However, every single one of these exemptions is full of restrictions that make it near useless for most people to use.
You can read about these exemptions and more in the LoC’s DMCA exemption publication.
-Reporting from Oklahoma, GamePolitics Contributing Author E. Zachary Knight.
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