When a game developer abandons a game or console, that can mean a lot of digital content is lost forever. Games are increasingly becoming an expression of art and culture, and many feel it’s wrong to allow games to simply vanish because a company shuts down their DRM server. The scourge of DRM has led to the premature demise of games in the past, but it might not be an inevitable death sentence in the future.

A new ruling from the US Copyright Office has granted DMCA exemptions in several narrow circumstances that can be used to keep abandoned games alive without running afoul of copyright law. Luckily, the Digital Millennium Copyright Act (DMCA) has a mechanism to address the changing state of technology. Every three years the Copyright Office considers exemptions from the anti-circumvention provisions of the DMCA. This year the EFF has won two key victories for gamers.

First, museums and other institutions that are trying to preserve games will be permitted to “jailbreak” or otherwise modify game consoles to run games without worrying about a long-dead DRM server. The Electronic Software Association objected to the request by the EFF, pointing out that jailbreaking a console can also be used to pirate games. The Copyright Office granted the exception, but it only applies to institutions, not people looking to pirate games.

The other DMCA exemption has wider appeal. You are now permitted to bypass the lame DRM protection scheme on a single player game in the event the publisher shuts down necessary DRM servers. For example, Diablo 3 has an online DRM server that you have to authenticate with even if you just want to play the single player game. Under the new rules, you could legally crack Diablo 3’s DRM when and if Blizzard shuts down that server.

These rules don’t extend to running online servers for discontinued games. So, there’s no way to archive an MMO yet. However, the EFF will get another chance to expand DMCA exemptions in three years.

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