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U.S. gov't stands by DMCA exemption for museums preserving online games

U.S. gov't stands by DMCA exemption for museums preserving online games

October 26, 2017 | By Alex Wawro

The United States Copyright Office stated today that after a period of soliciting feedback and comments, it plans to recommend that all exemptions to the Digital Millennium Copyright Act be renewed.

At least one of those exemptions directly impacts the game industry: an exemption for museums, libraries, and other archival efforts circumventing the DMCA in order to preserve (in a playable state) games that require one-time server checks that are no longer available.  

Such games were ruled DMCA exempt in 2015, but that exemption must be renewed by the Copyright Office on a triennial basis. This time around, the Office reports that it received a number of petitions from libraries and other preservationists who still need the exemption, and saw no meaningful opposition to its continued existence.

What's more, the Office is now seeking public comments on a new set of proposed exemptions to the DMCA, including an expansion (proposed by the Museum of Art and Digital Entertainment, or MADE) to the abandoned game clause.

In essence, the MADE is pushing the Copyright Office to expand the exemption so it covers multiplayer games, including those of the massively-multiplayer variety, and allow people affiliated with archival efforts to play them.

This was part of the original request in 2015, but it was effectively curtailed when the Office ruled that the exemption did not apply to multiplayer games "whose audiovisual content is primarily stored on the developer's server." That limitation came in part because the Electronic Software Association pushed back against the requested exemption, on the grounds that it could pave the way to piracy. 

Now, the Office is calling for comments on the MADE's proposed expansion, and it specifically calls for input on how such an expansion would affect both archivists and the video game industry at large.

"The Office notes that during the 2015 triennial rulemaking, the Register found that excluding uses that require access to or copying of copyrightable content stored or previously stored on developer game servers ‘‘to be an important limitation,'" reads an excerpt of the Copyright Office's notice. "The Office seeks comment on whether this proposed expanded exemption for abandoned video games should be adopted, including any proposed regulatory language."

The first round of public comments are due in by December 18th, and interested parties can learn more about submitting via the Copyright Office's website.

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