An Exemption to the DMCA Would Let Game Fans Keep Abandoned Games Running
eff.org
eff.org
The original document is at https://www.eff.org/document/eff-comments-dmca-exemption-aba...
You can donate to the EFF at https://supporters.eff.org/donate
And if you feel as if we missed something in the document, you will be able to comment to the Copyright Office yourself when there is an open call for comments in a few months. This work helps gamers on the outside, but really, it's helping the developers, both of the games and of the after-market patches.
The original developers get to see their work live on, regardless of the business deals around their IP, and the fans who take the time to write these patches get to have some cover for their work. It's really a no-lose situation, and if an entity is couching it as otherwise, be suspicious.
Finally, if you are hankering to play old PC games online, go download GameRanger http://www.gameranger.com/ It is amazing, and it is also an entirely one-man developed piece of software. He will happily support your game if you ask him, and will do so for free.
(The Steam version of Descent is basically a Dosbox container. If it's a game you really loved, pick up the Retro source port to replace Dosbox. Instructions: http://descentchampions.org/new_player.php )
DXX-Rebirth is great, by the way, especially if you want to play with modern joysticks or gamepads. It's entirely unclear what the difference is between Rebirth and Rebirth-with-Retro-mod, which is annoying. I can at least confirm that unmodded Rebirth plays fine in single-player.
The key improvements in Retro:
- homing missiles follow original trajectories (important for single player as well as multi!)
- netcode fixed. Shots travel in the same direction for all players (Rebirth's compression algorithm introduced errors of up to 30 degrees in shot direction.)
- gauss/vulcan ammo no longer duplicates inappropriately
- raised network PPS limit (30 packets per second max; it's beautiful!) as well as other network fixes [4]
- collision detection fixed. Shots which were almost exactly one frame away, and aimed at the edge of the ship, were detonating prematurely due to a vector math bug.
- host options: add extra primary and/or secondary weapons, cap the number of secondary weapons allowed in the level, reduce vulcan ammo, allow players to select their own ship colors
- improved calibration settings for joystick, mouse, and gamepads
You can find more at the github page and the bountysource page [5].
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[0] http://www.dxx-rebirth.com/frm/index.php/topic,1696.0.html
[1] http://descentrangers.com/Home
[2] Disclosure: I'm married to the Retro developer.
[3] Video from her perspective: https://www.youtube.com/watch?v=JLuTJz-pDaM#t=263 . That's a girls-vs-guys team game with Lioness, against the legendary "kiln" (Mr_1994) and "Arch-Angel" (Stan), at the Descent in Denver LAN in August.
[4] She wrote about the netcode fix here on HN, and one of the original developers showed up to comment: https://news.ycombinator.com/item?id=8401086
[5] https://github.com/CDarrow/DXX-Retro/issues and https://www.bountysource.com/trackers/2571293-cdarrow-dxx-re... . "JinX mode" is a spectator mode JinX was working on before he died suddenly last March, which has been renamed in his honor.
The initial reluctance to put something like that together stemmed from not wanting to split the community (we're still close friends with some of the guys doing Rebirth development.) We'd still like for all of this to be mainline Rebirth stuff. The projects just keep going in different directions, and eventually we'll bite the bullet and put together an actual webpage describing what Rebirth is.
(If you're interested in multi, follow the directions in the initial link to get on the Rangers mumble server. If you have a particular interest in cooperative play, Whoskyd is the guy to talk to.)
So far, Retro has been oriented toward the several dozen active competitive pilots out there. There are so few of us; we know and see each other regularly. When someone wants to know the difference between Retro and Rebirth, they just ask me. Actually, anymore what they say to each other is, "Just get Retro". ;)
I, uh, haven't really been thinking about new players.
The differences between Rebirth and Retro in a single player game are slight; Retro is mostly oriented toward fixing pain points in competitive multiplayer. That being said, there are a few differences.
Homers and smart missiles in Retro use the game's original algorithm for tracking, while those in Rebirth use something different. So both your missiles and the superhulk's missiles will behave differently in the two versions. Rebirth homers are better at going around corners, and while they're easier to dodge the first time, they're harder to ultimately lose. If you like to dodge homers in an open room on the higher difficulties, that's where you'll see a difference.
Homers in D1 Rebirth track proxies over robots / pilots. This is accidental D2 code contaimination, and has been removed in Retro. You'll notice this in levels where the robots lay proxies -- it was a particular problem for me on level 20, back when I was playing a lot of Rebirth.
Retro has dug a couple bugs out of the collision code, one of which was introduced by Rebirth, and one of which goes back to the original game release. If you like to make ninja close dodges, especially with homers, Retro performs the same every time; Rebirth will sometimes clip you with something that you actually dodged.
Other than that, it's little HUD chrome things. Retro has shield, energy, and ammo warnings. I like them in single player, but traditionalists generally don't.
Anyway -- Rebirth isn't a bad choice for single player. I've said in the past that the Rebirth community is more focused on single player and coop, while Retro is for hardcore competitive anarchy. That is okay with me. :)
http://massively.joystiq.com/2014/12/05/work-on-asherons-cal...
A 50 year old book is still there, but even a 10 year old game might not even be available for purchase anywhere (and even if it is, it's probably not immediately playable on modern hardware).
Fundamentally, we need to overhaul copyright in light of the fundamental changes to intellectual property sales brought about by digital goods. I'm not optimistic that it will happen, but for a shitty game to be copyrighted for 100 years is just ludicrous. At some point, things need to pass into the public domain.
The result is assorted holding companies picking up a few extra pennies, but a huge range of more obscure works are still the domain of abandonware sites and efforts like the Archive.
Walt is dead, Mickey lives on (with copyright restrictions)...
Defining "creators" as actual human beings provides a useful marker for how long a copyright is useful: at some point that human dies, and then at some point later his heirs die, and then at some point later their heirs die, etc. So you can look at the question in terms of how many generations should have a monopoly on their forefathers' works. Defining corporations as creators takes that marker away.
A better comparison would be Steamboat Willie, but even that is confusing because copyright is so caught up with trademark Disney characters. IANAL, but it seems to be that Disney should be able to have exclusive ownership over Mickey the character, but not the work in which he first appeared. (Which muddies the water, I know.) Does Disney make any significant money off Steamboat Willie? (They actually might, given its culture status, I just don't know.)
Which, if you accept the analogy, brings the situation pretty close to the one addressed by U.S. v. Paramount Pictures in 1948 (http://en.wikipedia.org/wiki/United_States_v._Paramount_Pict...), which ended the practice of studios owning their own theaters and refusing to show their pictures anywhere else.
On an expensive (~$100), out-of-print DVD, only released in 2005. The work has been orphaned for far more of its lifetime than it has been available.
I have to disagree with this on cultural grounds. Part of the reason that copyright expires is to fertilize the ground from which new stories are grown. Shakespeare does not own Romeo. Dickens does not own Scrooge. To the extent that Mickey has become a part of our cultural mythos, Disney should not own Mickey.
The only reasonable expectation a creator should have after a reasonably short copyright term is protection from malicious misattribution and defamation. Everything else in the last century of IP law is implemented completely wrong, in my opinion.
Walt Disney was given a crash-course by his artists so that he could draw a passable Mickey face when kids met him and asked him to do so.
Even then I didn't feel comfortable creating a derivative work. The creator wasn't earning money (he was paid off in the 1980s when he sold it, although it was clearly his pride and joy), and the brand of the legal derivatives faded from favor over the years due to technology improvements.
You can find a lot of these types of games in the recently-released distro of DiscoRunner [1], an Integer Basic/Applesoft Basic interpreter. I love that these games and their source is preserved, although as someone who respects IP rights of creators, I always feel a twinge when I see someone's REM statement with a copyright and their name on it scrolling by when I do a LIST command.
Actually, not so much. The 120 years + life copyright on books means that only the good / famous books last. There are tons of books that were published pre-digital-age but are still under copyright and are just dying a slow death.
http://www.law.cornell.edu/uscode/text/17/1201
It's summarized as such:
This exception permits circumvention, and the development of technological means for such circumvention, by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.
Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
Just a small request, if you are going to use indentation to quote a piece of text, please insert line breaks manually.
Otherwise the text is rendered as one long line, or in some cases as full width paragraphs, which make them very hard to read even on a full size monitor let alone a mobile device.
My personal preference is to italicise quoted text, but that is up to you!
off topic
EDIT - perhaps this is something that can be improved with the new UI that is slowly being rolled out, as it really shouldn't remain an issue for comment posters.
I know that when you're the little guy, you have to pick your battles wisely, but there are a lot of things we can no longer do as a society because our public domain is no longer growing.
Making an exemption to the DMCA is a temporary fix. For software, we should probably have a completely separate system of granted monopoly, wherein the protections are contingent upon deposit of the source code with the patent and trademark office, which would then become public record when the protection expires (on a completely independent time scale from anything to do with Mickey Mouse).
The safe harbor section includes the shoot first, ask questions later takedown procedure with unequal standards for claimants and defendants.
Title 3 of the DMCA addressed the issue of unauthorized copying due to loading a program from disk into RAM by explicitly authorizing computer repair technicians to run your OS and other necessary software even without having their own license. Left unaddressed is the more general reality of how bits are almost never actually moved, merely copied.
The anti-circumvention section provides for exemptions, but they only last three years so they're pretty much impossible for a serious business to rely on.
Serious question: what useful advance is being held back by a bunch of abandoned entertainment not going into the public domain?
I can think of a number of artistic references that would be culturally interesting ways to incorporate old video game code into new games, but there's no way to predict what will be created after several cultural iterations across a few generations. We can only imagine the art of which we are being deprived.
They can't. They can't be offered to the public domain after the relevant term expires in exchange for the demos protection of the IP by punishment of tortfeasance.
It is not possible for them to be copyright works then as all copyright works must eventually enter the public domain. Unfortunately this was always a truism within publication. It's part of publication itself that mode of reproduction of the work is laid bare; arguably that is what publication meant in the first instance within the purview of those writing copyright laws. Because it is not contemplated that publication could not make the work public, as that would be self-contradictory there is no really strong rendering of this need. It is, I'd argue, there though. Vis:
Berne Convention, Art.3(3)
>"The expression “published works” means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. [...]"
This section of Art.3 goes on to list works that are made public but are nonetheless not considered published and so are not protected by copyright. To my mind works that are inhibited with DRM fall in this category. That is, games - as with other works protected by DRM - are _not_ being published. Publication to the mind of those drafting the law means making the work available to be reproduced. In terms of Berne Art.3 with regard to the nature of games they don't meet with the reasonable requirements of the public either, eg continued playability.
[Thoughts/knock-downs/rejections with reasoning happily received!]
It's an approach taking in account the realpolitik, and its an approach that other FOSS groups could learn a lot from as the attempt to make change happen.
One difficulty with the "collapses due to the number of holes in it" theory in the context of the DMCA triennial exemption process is that the exemptions expire automatically after three years and have to be re-applied for.
"the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period" (17 USC §1201(a)(1)(D))
(The Copyright Office has also taken the view that the decision to grant an exemption is not directly precedential in the way that a court decision would be -- that there isn't a presumption that it should be renewed, that you can't just say "I propose to renew exemption #2 from 2012 because the Librarian of Congress found it was appropriate then and the same reasons still apply, thanks!" and get a renewal on that basis. So it's quite different from impact litigation that way.)
So, for example there's nobody currently directly benefitting from some of the legal work our lawyers did in, say, the 2003 or 2009 exemption processes.
Our relationship to the exemption process is complicated. In addition to participating in it every triennial cycle but one, we have also strongly criticized it. Here's an example from 2005 (with the super-retro green and blue logo):
https://www.eff.org/document/dmca-triennial-rulemaking-faili...
The only reason the company might care is because the use weakens their overall copyright case (e.g., Nintento's right to the Mario / Mario Kart brand). Enthusiasts don't care, so the interests are aligned, but the lawyers might not be.
It matters not a whit if the owner of a copyright doesn't pursue legal action if some federal attorney somewhere decides that this is an important issue.
(1) The DMCA, and for that matter copyright law generally, creates private rights of action in the copyright owner. Even if something is infringing on their rights they need not act. The decision is up to them.
(2) Copyrights do not pass automatically. Nobody can pick up the torch by asserting the rights of an inactive copyright owner.
(3) True abandonware involves either a disappeared copyright owner or one that no longer cares about an old title.
So ... do what you want with abandonware. If the copyright owner reappears and asserts his/her rights, then it wasn't really abandonware in the first place. That's the risk you run.
Also, copyright isn't what stops people from maintaining old games. It might be the easiest means of enforcement (ie takedown notices) but it isn't the meat. Nobody cares if you make copies of the original Civilization. The copyrighted game is valueless. But they do really really care about you using the "Civilization" trademark. That tidbit of intellectual property has nothing to do with the DMCA.
My Dad works in biotech and he's fond of telling me the same thing about patents, which are crucial to that industry. "Patents are basically a tax that we have to pay to the lawyer industry, because a patent only exists insofar as you legally defend it. If we don't pay those lawyers, then much bigger biomedical and pharmaceutical companies will just steal our research for their profit." Or, "When your lawyers are preparing a patent, they sit you down and you have to describe exactly what you did. Then you describe it again. Then again, more and more abstractly, until you have something at the level of 'an object with a screen which a person reads medical numbers from', and they write all of this down, so that if someone steals only 50% of your idea, hopefully one of the levels in the middle is abstract enough to stop them, but not so abstract that the judge throws it out."
Copyright describes some situations during which you can sue someone else. Having this perspective changes a lot of things. Copyleft licenses say, for example, "I won't sue you unless you threaten to possibly sue someone else, unless you threaten to possibly sue them for possibly suing someone else a la this very sentence." No wonder GPL is more convoluted than BSD, which merely has to say, "I promise not to sue you; in exchange you are promising not to sue me. Also don't erase the fact that I wrote this."
17 U.S.C. § 1201, which is both named in the article and otherwise trivially googleable.
This doesn't seem like something you can just throw out and accept people to accept. It's essentially saying, "The law is, do whatever you want. If we punish you, you're a criminal, so you deserve it." That isn't the way good law works.
Furthermore, just because a copyright holder takes interest once you've done something with it doesn't mean it wasn't abandonware. It's entirely possible that the copyright holder is hard to track down and doesn't even know they hold the copyright until after you have resurrected it.