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Comment by fragsworth | Hacker News Reader

I don't understand why the ESA cares at all about this. None of the games in question are making any money, and the publishers don't expect to make any money in the future on them.

What is their incentive? Maybe they want to preserve the opportunity of reviving an old IP? If that's the case, then doesn't allowing players to keep playing the abandoned games improve the visibility of those IPs, improving the value of a future revival?

It's really dumbfounding. I'd like to understand the motivation here, so that it at least makes sense to me.

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And there's no chance you will from reading this article, since there's no link to the ESA's statement, so the whole article is based on 4 excerpted words. I would find this article much more persuasive if there were a better attempt to establish the content.

This is the ESA's position: http://copyright.gov/1201/2015/comments-032715/class%2023/En...

I am broadly sympathetic to the EFF's position, but the ESA's argument is a lot more thoughtful and nuanced than the way the EFF is portraying it. I see this happening more and more with the EFF, and I trust their advocacy less and less because of it. It's one thing to be for a particular position, it's another to misrepresent that of your opponent in order to garner support. If you're confident of your position, you shouldn't feel the need to obscure access to primary sources so people can make up their own minds.

Oddly, while the EFF has multiple submissions to the copyright office as part of the open rulemaking process, and they're available on the EFF website, I've seen little acknowledgement of the fact the the Copyright Office is conducting a 3 year open rulemaking exercise on this topic, or about the Congressional committee that's re-examining copyright issues. I strongly urge interested parties to draft and submit their own arguments directly to the copyright office, where they will carry much greater weight.

http://copyright.gov/rulemaking/

PS if you're only interested in proposals to add exceptions to the DMCA, they're here: http://copyright.gov/1201/2015/comments-032715/ and here: http://copyright.gov/1201/2015/comments-020615/

Is it, really?

Consequently, contrary to EFF’s assertions, multiplayer gameplay over the Internet is not a “core” functionality of the video game, and permitting circumvention to access such functionality would provide the user greater benefits than those bargained and paid for.

Yes, I think it is. It's a 30 page document with another 3~40 pages of supporting materials, which consider things like the difference between single and multiplayer modes and so forth.

Also, the EFF article doesn't even touch on the question of what users are actually buying, but boils the entire position paper down to 'hackers are practically pirates!!' Reading the comments here, I see it's been quite successful as a piece of emotional manipulation :-/

For someone whose been flooding this thread with complaints about the EFF misrepresenting the ESA, you're being awfully disingenuous here. Here's the passage:

> EFF’s discussion of “matchmaking” services and multiplayer-modes is also misguided. The video game industry utilizes access controls in order to offer robust, interconnected online experiences that supplement game play. These immersive gaming experiences leverage users’ Internet connectivity to provide a suite of online network features to gamers. These features can include, for example, not only multiplayer game play, but also chat communications, sharing of user-generated content, leaderboards, points, badges and other achievement markers. Online network features for sports games might update roster information in real time to reflect injuries, trades or even increases or decreases in skill. And the online services may enable users to download customized outfits or other downloadable content. Some modern games, such as Minecraft, enable the user to create the very world that the player, and others, inhabit. Still other games may use cloud servers to offload core game calculations to create more realistic game experiences. Significantly, however, all of these online network services generally are entirely distinct services that the user must register for―and sometimes pay for―separately and are not included in the purchase of the video game. Consequently, contrary to EFF’s assertions, multiplayer gameplay over the Internet is not a “core” functionality of the video game, and permitting circumvention to access such functionality would provide the user greater benefits than those bargained and paid for.

Most of this passage is a correct summary of basic facts, however the conclusion at the end does not at all follow - not even close - and you know it. Multiplayer is not about achievements, rosters, cloud computing such as with SimCity, or getting a new outfit in Minecraft. For some games, without multiplayer there is no game. There are games like the Modern Warfare series with a single-player component, however the marketing for these focuses very heavily on the multiplayer aspect, and the multiplayer aspect is why people buy them. Then there are games like Tribes, or World of Warcraft of course, which don't even have a single-player aspect. For such titles, without multiplayer support the game simply ceases to be.

But not only have they intentionally left out a huge part of what makes a game multiplayer, they have not even justified their dismissal of what they claim makes a game multiplayer! So if a game is designed in such a way that it must make use of off-site computational resources to work - leaving aside for a moment that usually when that claim is made, it's bullshit (cf SimCity) - I should not be able to simulate this resource somehow after the publisher of the game denies it to me? If a sports game can update its reference data to look at more recent statistics for players, injuries, etc., then after the publisher stops updating this reference data, I should not be allowed to update it myself? If I want to share Minecraft skins or maps or mods or whatever with my friends, I must rely on Microsoft to provide that functionality, or lose it? Whether you agree with these claims or not, these are points that must be argued, not asserted as the ESA has done here.

Frankly, after reading the EFF article, I had a low opinion of the ESA. I already had this opinion before reading the article, actually. And you are right that my impression of the ESA argument after reading only the EFF article was "the ESA thinks an exception would enable piracy". However, now that I am reading the ESA brief, I see that it is so much worse. If your objective is to defend the ESA here, I do not think getting people to read the ESA brief is such a great idea for you.

I don't think anyone here is defending the ESA's position. They are only noting that the ESA's position is not quite what the EFF says the ESA's position is. It is possible both for the ESA to be wrong, and for the EFF to have still misrepresented the ESA.

That's a 71 page document. If you understand the "more thoughtful and nuanced" argument from the ESA, would you mind writing it up? I feel like one of the services the EFF provides is reading through these documents, summarizing their arguments, and providing a "is this shitty or not" perspective to a wider audience.

I would mind, because that would be hours and hours of unpaid work which would probably just lead to me getting labelled as a shill for the ESA by many HN readers. Sorry.

The executive summary (which begins on the first page) is only 4 pages long, which I think is a manageable read.

I'm 1/3rd through ESA's response and it is clearly far more nuanced than EFF is pretending it is in this blog post. As a threshold matter (to adopt the argot) it should be enough for you to know that EFF is misrepresenting ESA. It's especially disappointing given that even the most charitable summary of ESA's position would still leave most of the Internet on EFF's side.

(I put the rest of my response here: https://news.ycombinator.com/item?id=9345206 --- read it before HN flags it off the site; it's what you asked for.)

> I feel like one of the services the EFF provides is reading through these documents, summarizing their arguments,

Yes. And they do a poor job of it.

Disclosure up top: I work for the EFF on copyright activism, and submitted this article here, but didn't write it.

Just wanted to say that, as others have noted, the excerpted words come from a 71 page reply, but I wouldn't say it was anything like picking four unrepresentative words. Take, for example, this longer paragraph from the filing:

> Hacking video game access controls facilitates piracy and therefore undermines the core anti-piracy purposes of Section 1201. As explained above, hacking the video game access controls requires, by definition, hacking of the video game console or similar device in order to play the hacked video game. Once the access controls for the video game console are hacked, regardless of the purported purpose or intent of the hacker, any content, including pirated games, can be played on a video game console.

> What's more, console hackers may distribute their console-hacking solution to gamers that have no intention of using it for the purposes stated in the proposed exemption. The risk of piracy is even greater on personal computers and similar devices that do not utilize device-based access controls to prevent the installation of unauthorized software. The individual can use consoles to make and store infringing copies of copyrighted games and other content and to distribute these unlawful copies online to a large audience.

You can't really go line-by-line through a 71-page comment, but it's fair to say that that sort of rhetoric—conflating "hacking" with piracy with illegality, regardless of context—runs throughout, and is what my colleague highlighted here.

Sorry, I think that's really disingenuous. Observing that lockpicking can facilitate burglary is not equivalent to conflating locksmiths with criminals, and even the short excerpts that you quote above do not disregard context, but point out the existence of a wider context.

I don't want to get into a long argument about it, but from your tone I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy.

I think the ESA has a "legitimate interest in preventing piracy"

... and I also think that shouldn't prevent anyone from doing anything they like with any electronic devices or digital bits they acquired legally.

The sticking point is the DMCA anti-circumvention provisions. We're talking about exemptions from these provisions. These provisions should not exist in the first place. "hackers" aka smart people who use computers should absolutely be allowed to do whatever they want to make their own purchased games work, even if the ESA member companies are working against them.

Let ESA member companies do stupid DRM stuff which makes their products worse for paying customers.

Let paying customers do whatever they want with what they bought, including making it work even when it's not supposed to work anymore.

(EDIT: I should probably mention the rather undermined first-sale doctrine. You obviously should be able to buy or be given an old game from someone else who bought it, and make it work)

This is why EFF had no need to misrepresent ESA's argument: their entire audience believes that ESA's constituents don't have the right to enforce licenses that restrict end-user rights to modify game titles.

The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Promises agreed to in contracts that restrict your ability to modify games are enforceable. Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law.

You can want the law to be otherwise (I might too!), but that's not germane to the actual situation EFF faces, which is a legal argument with ESA in the venue of the Library of Congress.

>The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law.

Is there basis in law for the opposite? If so, could you cite that? To a laymen I'm forced to compare this to what I know - namely that there are very few, if any, purchases I could make of _physical goods_ with legal restrictions on me taking them apart, physically.

EULAs are routinely enforced. Is that what you're asking? Some examples, by no means exhaustive, can be found on this page: http://en.wikipedia.org/wiki/End-user_license_agreement#Enfo...

> Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law.

So aren't you arguing for an exemption in the DMCA since contract law already covers this? What is the need to prevent this using the DMCA if it can be prevented on a case by case basis using contracts?

I do think there probably should be some kind of limited, narrowly-tailored exemption, in the spirit of "interoperability", for restoring online functionality to titles whose online components have been decommissioned.

That would leave a large list of games lost to history and never again playable. There are quite a lot of titles that were protected by dongles, anti-emulation code, etc. in addition to those where the servers have been taken down due to the publisher making no profit off of them and the existing proposal is quite reasonably tailored to preserving works that would otherwise be lost with little impact on works that are still commercially viable.

If anything, keeping old works alive helps boost the inevitable remakes, e.g. how I just bough Elite: Dangerous the other night because of what I knew about the original Elite.

You can still buy a BBC Micro on ebay and play the original.

I still play mine, 30+ years & going strong. Although I must admit I bought an SD card adapter for it so I don't use floppies any more.

And I have an 8088 in the closet, but I wouldn't want to rely on it as the means to preserve these works until the copyright expires.

Nor I really, I was just saying that the original for Elite is an eBay away.

My sd card came loaded with every game ever released on the platform.

Fair enough. I gave you some upvotes as it seems you were misunderstood.

That said, the new one looks much cooler, but it has one hell of a steep learning curve. You can die from pretty much anything, including the training to leave a station.

Accidentally shooting the station pretty much equals death.

But isn't the decision of whether to let old games rot or to give them new life and potentially monetize it a decision of the property owner? Why should somebody else decide for them?

They only own the copyright for the fixed term of copyright law. So in that sense, you could compare them to 'renters' as their rights will expire. Why should the public be unable to preserve what will become it's common property?

And yes, I'm aware that there are a few unusual legal constructions, such as the copyright on Peter Pan which do not expire. These are relatively few in number and outside the scope of the concern here. I don't think any video games have such a copyright, anyhow. That said, I can see legal efforts to abolish the constitutionally-established limited term of copyright.

> Promises agreed to in contracts that restrict your ability to modify games are enforceable.

Could you provide some case law for that statement. Contract law is a complex area, and Meeting of the minds is critical aspect in order for it to be enforceable.

As a consumer, I have bought my fair share of games, and not a single time was I informed about a contract. When talking about consent, EULA agreement is as far away from reality as you can make. People have signed away their eternal soul (http://boingboing.net/2010/04/16/video-game-shoppers.html), while a study showed that average users spend less than 8 seconds to read agreements (https://dl.acm.org/citation.cfm?doid=1753326.1753689). A similar study done earlier in 2001 looked at privacy policy documents and found that only 3% of consumer read privacy policies, and once they read it, they were less sure about what it meant than those who didn't.

But the legal system is complex and not always about common sense, so lets look what the court has said in specific cases. Looking at shrinkwrap licenses, about 4 know cases has ruled against enforceability and 3 has ruled for it (http://euro.ecom.cmu.edu/program/law/08-732/Transactions/Shr...). The primary argument seems to be about when the contract is formed, as in the store when money and product change hand, or at some later time. One camp states its in the store, and the other when the customer has performed a arbitrary number of steps (purchase, picking something up, turning a thing on, ...). The first camp is focused on the consumers ability to consent to a contract they haven't seen or understood, and the second camp is focused on current industry practices. The conclusion seems to be a distinct lack of supremer court cases to decide which camp is right.

As I said I'm basically in favor of the EFF's proposal. My beef is with their mischaracterization of the ESA's position; they're making them into a boogeyman instead of acknowledging that they have some legitimate interests here and looking for a way to bridge the gap.

Even then, I don't want to blame the EFF too much, but to critique the peculiarly zero-sum American appraoch to resolving conflicts of interest, as discussed in this excellent book: http://www.amazon.com/Adversarial-Legalism-The-American-Way/...

> I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy.

Well, there's legitimate and there's legitimate. We're not discussing here whether they should try to prevent piracy, it's whether they should block efforts to get a small temporary exemption related to non-infringing uses of abandoned software put in place for the next three years.

It's frustrating to me that ESA and some of the other respondents here try to bootstrap from a copyright purpose to non-copyright ones. Nothing in this exemption would render infringement legal; if granted, it would just remove legal uncertainty from circumvention for limited non-infringing uses. In that sense, the legitimacy of the underlying copyright concern is kind of irrelevant.

You have been commenting righteously about how the EFF misrepresents the ESA's position but you haven't stated what the misrepresentation is besides telling people to read the 71 page paper and that "the ESA has a legitimate interest in preventing piracy", which is the same thing the EFF is saying: the ESA is conflating hacking old games with piracy.

"...conflating locksmiths with burglars..."

I think that's exactly what is happening. This is often used in politics, and is akin to "I'm just saying..."

"He may or may not have criminal intentions, I don't know, I'm just saying..."

It's intentionally drawing loose correlations and leaving the equivalence up to the reader. Once the suggestion is made, however, it's hard to dissociate.

I agree with one of the ancestor posters - the ESA has no dog in this fight other than fearing that allowing any hacking is a slippery slope, and it is in their favor to make sure "hacking" is never seen in a positive light.

I'd have to disagree based on reading the ESA's position statement. Essentially they point out that in order to circumvent the restrictions on a particular video game, one must circumvent the restrictions on the video game console, which is covered by a different section of the law.

Creating and distributing kits for the circumvention of the console restrictions has a drastically broader application than merely playing abandoned games.

Given that such an exception would essentially gut the law, the ESA most certainly has a dog in the hunt.

> Observing that lockpicking can facilitate burglary is not equivalent to conflating locksmiths with criminals

I have to disagree with you here. Both in this filing and in their broader campaigns, they've done everything they can to conflate copyright infringement with hacking/viruses/etc. and many of their references are irrelevant or unsupported, they just want to put the words piracy and hacking together at every opportunity.

Which is itself disingenuous, as ESA member Sony is itself infamous for using malicious hacking in its attempt to stop copyright infringement (e.g. the Sony rootkit). Although I will admit that I'm maligning them given the chance. I haven't bought anything from Sony since that very day.

Apropos of being disingenuous. Sony BMG (now Sony Music Entertainment), which is infamous for using malicious hacking is not and have never been an ESA member. The ESA member is Sony Computer Entertainment. And no, it's not the same org. Both are subsidiaries of the same holding company so they are as related as HBO and Time Warner Cable or GEICO and See's Candies.

I didn't realize that having a holding corporation absolved you from shared moral culpability the way it does for shared legal culpability.

I am sorry, I don't follow. Two different companies did two different things (installing rootkit and being an ESA memeber), you seem to believe they are the same company. I have corrected you.

What does moral culpability have to do with any of this?

Actually you've been talking to Natus, Inc. and the person you wanted to correct is Natsu, LLC. Because we're completely different imaginary entities that merely happen to share an account, you're actually the one who is confused here. Hopefully this clarifies things for you.

On a more serious note, if I can't hold the owners responsible for their actions via their own subsidiaries, then what? This is why I find them to both be 'Sony' enough to share blame and I don't particularly care for it when people try to play shell games with corporate identities. The particulars of their corporate governance are simply not relevant to what I was saying.

Ok. So you believe Sony Corp owners (who are mostly institutions) both made the decision to install rootkit in Sony BMG and signed off the ESA publication in SCEA?

Good for you, I guess. This belief is definitely more popular on HN than reality.

I'm not saying they made the decision, necessarily, only that they can be held responsible for it. If they can't be responsible for anything their corporations have done, who can be?

How about this: people who make the decision are responsible for it and people who have nothing to do with it... are not? If you have 401K you might be owning Sony yourself. If you have a savings/CD account you might also own Sony. So by your own standard you are likely responsible for every action any Sony's subsidiary and any subsidiary of any other corporation you invested do.

I could agree with that for the most part, but I have a hard time seeing how there can be no one anywhere in Sony who had anything to do with Sony's decisions.

Also, I've read a fair number of proxy statements, but I've never had a chance to vote on what sort of lobbying they should do or what projects they should work on.

I am pretty sure there is nobody anywhere at any Sony subsidiary who had anything to do with Sony Music and SCE decisions in question simultaneously. As same as there is nobody in Berkshire Hathaway who is simultaneously deciding on the candy recipies and on the insurance policies.

And I don't think that lobbying efforts are undertaken without the involvement of senior management (unlike, say, candy recipes), so we'll have to disagree here.

Pardon my ignorance, but in what world installing a rootkit is a part of lobbying efforts?

Care to explain downvotes? Am I wrong somewhere here?

Using your analogy, ESA wants to ban practicing lockpicking skills in the privacy of your home because once you learned it, you could use it to commit burglary. I think EFF is completely correct to oppose it and completely justified to expose guilt by association and slippery slope fallacies in ESA's argument.

ESA has interest in preventing piracy, but that does not give them any more rights. I have interest in acquiring a million dollars, but it would be a poor argument for me to justify robbing a bank with that interest. In the same way, the fact that ESA is interested in something does not constitute good argument to prevent harmless activities having nothing to do with piracy - because there are much better and less rights-infringing ways to further the same interest.

You're quoting individual grafs from a 4-page executive summary. The entire rest of the document goes into excruciating detail about the myriad of objections ESA has to the exemption proposal.

You can, in fact, go line-by-line through a 71-page comment. When you purport to summarize it, you are obliged to capture it in its entirety, or else disclaim the fact that you're responding only to a fragment. EFF failed to do that here.

9 minutes later

The ESA document isn't 71 pages long. It's 29 pages, plus exhibits. I read all 29, and mined out all the arguments I could find (excuse the typos, I tried to go as fast as I could):

sweeping scope

burden is on exemption asker

no concept of “abandoned game” in copyright law

exempts modifications on non-gaming platforms

applies to games other than those eft claims it does

turning off online services doesn’t abandon game

access controls used for more than just enabling matchmaking

implicates controls fundamental to the platform like code signing

fails to meet burden that “most use would be noninfinging”

online services licensed separately from game, so modifying game itself infringes

six month time duration has no basis in law

exemption is broader than fair use (preservation and study)

significant commercial non transformative use

involves reproduction/distribution of copyrighted game assets

amount of code implicated is sweeping and unreasonable, unlike book excerpt

has the effect of circulating tools also used for piracy, which harms market

too many market alternatives to support argument of irreparable harm to consumers, including 1p games

consumer harm proposed by eff is hypothetical

games aren’t abandoned when they have thriving communities, so benefits are minimal

librarian is obligated by congress to consider adverse effect of exemptions

eff identifies no actual nonprofit or archival project that would benefit

online services have no impact on criticism comment or news reporting

creates confusion among users about what is or isn’t lawful, thus increasing piracy

impacts not just copyright but also brands and trademarks of game publishers

---

Do you honestly think EFF's summary of these arguments was honest? This took me 9 minutes to read and type up. EFF didn't have 9 extra minutes to get it right?

If there are words in the original post that give the impression that we're providing an exhaustive summary, let me know and I'll see how we can clarify.

One of the arguments ESA made seems to resonate with people. I don't think it's at all dishonest to point that out.

We will address the comments more completely with the response filing. In the meantime, I'm glad your 9 minute list exists in case people prefer it to the original.

There was no indication given that ESA had presented arguments any more nuanced than "hacking is illegal", nor was there a link to ESA's argument. Your comment, too, is a bit... uncharitable in its assessment of our intelligence.

Here is EFF's chosen title for this article:

Videogame Publishers: No Preserving Abandoned Games, Even for Museums and Archives, Because All "Hacking" is Illegal

Well, that, and about thirty other things.

Later, summarizing EFF's own article, is this sentence, which is its own graf:

Behind this hyperbole, ESA (along with MPAA and RIAA) seem to be opposing anyone who bypasses game DRM for any reason, no matter how limited or important.

This appeal to "hyperbole" is a straw man.

I must disagree strongly. For one, there was no need to indicate that any more nuanced arguments had been given at any point, since the argument of "hacking is illegal" is already completely and inarguably inacceptable. This is for the following reasons:

The word hacking was carefully chosen as means of emotional manipulation (see: https://www.google.de/search?q=hacker&tbm=isch ) and is used profusely in the document, mirroring the manner by which the advertisement industry burns brands into the collective memory. The excuse of it standing in for an activity defined as "modify the video game’s access controls" is only given in a footnote, instead as a glaring bold definition, which is intended to hide the fact that the word was redefined. Further, the redefinition itself is laughable since there already exists a solid term for that act: http://en.wikipedia.org/wiki/Software_cracking

There may be further arguments in the document, but it is fairly obvious that they are not the primary payload and are only present to fulfill legal requirements and provide a hull on which the primary payload is carried.

Edit: In short: If you read this document only as a legal document instead of the piece of advertisement aimed at manipulating human emotions it is, you miss the true nuance. And that is what the EFF was crudely pointing out.

In the end, all those arguments basically say "any exemption to hackers legitimizes hacking and helps pirates" along with a few tired arguments about disappearace not equaling disappearance, which is the same rule that keeps so many old books locked away decades after the rights owners have all but vanished.

It's the same song the ESA has sung for years to step in the way of legitimate hacking, and is not too far away from "won't someone think of the children!"

>In the end, all those arguments basically say "any exemption to hackers legitimizes hacking and helps pirates" along with a few tired arguments about disappearace...

No, no they don't. You're doing exactly what the EFF is doing - being intellectually lazy and recasting their arguments into unrepresentative excerpts that you then proceed to dismiss. A number of points tptacek listed are nuanced legal arguments, and I see nobody addressing them.

Umm, not really. They say there's no legal definition for 'abandoned game' but the EFF is trying to make one, as is permitted in the DMCA exemption process. They say that turning off online services isn't 'abandoning' the game... c'mon, really? They're 'only' making it unavailable and ensuring that the general public--who will collectively OWN all of this property when the copyright expires have no way to preserve their property from destruction.

Please also note that it would require a constitutional amendment to make copyright terms unlimited ... not that they're not trying to backdoor that by creating 'extensions' whenever some are about to run out.

I also read the ESA's brief, and I think the reason the EFF didn't mention many of these arguments is that explaining and then rebutting each of these arguments, many of them utterly specious, and some mutually exclusive, would result in an article too long for a casual reader, so they had to pick what they perceive as the core argument and the actual reason game studios oppose this change. Someone interested in the detail can always do what you've done, and read the actual briefs.

Some of these points are obvious grasping at straws. First, there is denying the problem exists:

- no irreparable harm to consumers

- games aren’t abandoned when they have thriving communities, so benefits are minimal

- turning off online services doesn’t abandon game

The farcical:

- exempts modifications on non-gaming platforms (by which they mean computers, both desktop and mobile)

- copyright owner entitled to benefits/revenue from online services

And the remaining arguments are mostly technical legal arguments about copyright holder rights and time durations, which may have legal merits, but don't address fairness concerns. If someone sold an e-book, then came back years later and removed half the chapters while simultaneously claiming that no one should be able to archive or distribute those redacted chapters, AND that the seller is entitled to benefits from those chapters they redacted, AND that there was no harm to consumers, we would rightly ridicule the incoherency of those mutually exclusive arguments.

I'm reading between the lines here, but I think the ESA's motivation is roughly (if privately):

"If people can play hundreds of old games for free, it will be harder to force them to pay for newer games! They'll get used to 'free' as a price point, and they'll have lots of free games to keep them amused!"

No, I didn't read the 30 page document the ESA wrote. I just know how people in power think: They want to keep as much control as possible, to buttress their position, even to the point of doing seemingly insane and harmful things that might, conceivably harm their position.

The hacker argument is particularly pathetic, but you're right: The 30+ pages wasn't motivated by that tiny excerpt. The 30+ pages was motivated out of desperation, since they're looking at declining sales numbers in the traditional gaming space. [1]

[1] http://gamerant.com/npd-gaming-decline/ http://www.npr.org/blogs/alltechconsidered/2013/03/22/174940...

Yours SomeCallMeTim seems likely to be the correct interpretation of ESA's position.

What I'd like to note - as I've often done before - is that copyright is a deal with the demos whereby the copyright holder gets "limited time" [not so limited nowadays] protection in exchange for their works entering the public domain. Without the work entering the public domain the deal is very poor on the side of the people, you'd want to offer only a few years of copyright for such a poor deal.

By applying DRM or locking down games and not allowing modifications and disassembly for interop/continuation purposes the companies are not honouring their part of the copyright deal, they're making the copyright effectively void. The demos should consider such works to be no longer under copyright, the company broke the "contract".

I'd be amazed if those applying the law ever took such a democratic view in practice rather than creating a construction of the purpose of the law based primarily on the interests of those in control of media conglomerates.

It's worth noting that the obvious conclusion from your comment is that the core problem is with the length of copyright, rather than the restrictions within the law - if copyright were bloody finite, then people would eventually be able to play stuff anyway.

>if copyright were bloody finite, then people would eventually be able to play stuff anyway. //

Only if their system for locking up the content is deficient. Lets assume that it can't be cracked - the work won't enter the public domain, it shouldn't be allowed copyright protection.

It's not just about the term, though practically with a short term (7 years I call short) the effect might be largely the same - but the law shouldn't be designed around public benefit only being accessible if someone can crack DRM/encryption or reverse engineer a server or some such.

This is my hunch why there's not so much backwards compatibility for PS2/3 games with the PS4.

The ESA also seems to be off-the-mark in their longer response. They claim, for instance, that no one uses "authentication" servers. Which is just, blatantly false. They try to cover it up saying there is more than just "authentication", but that's really just trying to hide the primary motivation.

It seems more often than not that the incentive is just to sit on the rights to IP, even if you don't plan to do anything with it ever, just because there's no incentive to let things go, and there's some microscopic but non-zero benefit to holding onto IP just in case.

I wonder if, instead of having the near-endless wait until public domain, it would be good to have a system of intellectual property that made copyright increasingly expensive to hold year after year, as some function of the total assets of the IP holder. Make it some exponential function, so that after a certain number of years, holding onto the rights to some IP is just too expensive to maintain unless the holders feel they can actually do something good and profitable with the IP (rather than a system that would need to show regular "use", which would incentivize publishing crap to satisfy a regulation).

That is brilliant. It would solve the Mickey Mouse Protection Act problem as well.

If megacorps like Disney want to spend millions keeping Mickey Mouse and friends out of the public domain after 100 years, they're free to do so, without keeping things like The Great Gatsby or the Dewey Decimal System locked up for no good reason.

The only problem I see is for software that gets new versions periodically. Often times an old version is "good enough", but if it became public domain then it would compete against the newer version. Of course depending on your viewpoint that may not actually be a problem.

That's how it's supposed to work - if you don't make a better type then people will stick with the old type. It seems in many areas technology has plateaued and so companies have moved to planned obsolescence, which this is just a version of.

This just highlights to me that the current economic systems are failing and a paradigm shift is required to allow mankind to make better use of resource. We can make a bucket that will last multiple lifetimes but if you go to the shop you'll find ones that break after a short period of use.

Companies are seeking laws to allow them to engineer in obsolescence of copyright works and prevent those who purchased copies of those works from working around that obsolescence. Rather like making cars with closed engine bays and legislating against owners using tools to access the engines for repairs ... no doubt that will come, auto-mobile computers are starting to make car repairs rather like this already.

There are way to little responsibilities for the copyright holders compared to the rights are able to enforce.

Copyrighted works could be treated comparable to undeveloped land if not used. Meaning works currently not being commercially available in a supported medium under reasonable conditions from the rights holder. If available the rights holder may either pay an annual tax (much like land value tax) or release the work into public domain.

I like how that idea gives incentives for people and businesses to hold onto the really valuable IP.

BUT...I think I'd actually prefer a return to the simple copyright rules: 14 years, it's yours. After that, it's in the public domain. I'd even take away the 14-year extension, or maybe make the 14-year extension be sold at an auction.

And after that, no more copyright.

Intellectual property is the flimsiest of modern-day "property" fictions (i.e. things we made up to help some people/businesses out), and the wealth of public domain is so very, very enriching to all citizens.

There's another nice win to this type of solution: it solves the Orphan Works problem

Right now a disturbingly large percentage of recorded audio is hard to preserve because it's not clear who to contact or the rights-holder doesn't have a system for handling obscure items. If you're a film-maker and want to license a track by a major artist, it's pretty straight-forward – call Sony and make sure you have enough zeros on the end of the check – but if you wanted something obscure – period jazz or blues, garage rock, etc. – you might not even be able to find who currently owns the rights after decades of people drifting out of contact, corporate mergers and acquisitions, bankruptcies, etc. Even a modest annual payment could have the side-benefit of ensuring that any work under copyright would have current contact information on file with the Copyright Office.

Every time there is a new device/platform released, an opportunity arises for old games to make comeback and money to be gained. Whether it's right or wrong to make money off it... I don't know.

But I can feel both sides.

For example my favourite all time PC game is Heroes of Might and Magic (2 and 3). There is a wonderful "inspired-by" version called PalmHeroes, and then some open source projects (freeheroes and others).

And then I won't mind paying for the latest version UbiSoft released for iPad's - and it seems that version was just the DOS version emulated on the iPad (okay, maybe not, but felt that way).

But I was satisfied nonetheless. Playing heroes on the iPad is great.

Ah well, I don't really have saying in such matters - maybe movies/books can help a bit in this direction.

.....

Now one thing that is possibly worrying - is how current games are going to be emulated in the future. It used to be that next-gen games were able to play previous games (PC, console) or emulate them, but PS3/Xbox360 are already hard to emulate on PC (especially PS3) - wondering with even newer consoles...

And then that's even minor, what's more worrying if the game relies on external assets/services (fully online games) - then nothing could be done really....

You make a very interesting point about emulation. For older consoles emulation was essentially guaranteed by Moore's law (and specifically the frequency scaling that went for a while). For a slowing down Moore's law, may we reach a point where real time emulation of a different architecture is just impossible? (and instead some kind of translation will need to be done, à la wine?)

An advantage is that architectures are converging anyway to PC-like instead of exotic stuff like Cell.

http://en.wikipedia.org/wiki/High-level_emulation

A lot of emulators work that way, and have for a long time. N64 on a Pentium II with only twice its clock rate, etc.

Real time emulation of specialized hardware with 100% coverage has never been straightforward. Massive amounts of extra computing power won't save you from having to do specific calculations with low latencies. I'd say it's been impossible to completely capture arbitrary machines for quite a while now. But in practice you can fudge the differences and emulate with similar amounts of power.

>An advantage is that architectures are converging anyway to PC-like instead of exotic stuff like Cell.

It didn't help with the Xbox.

Yup. There is also the issue of security, updates, etc. Not all data is stored on the disc.

There was no incentive. A lot of Xbox games were released on PC.

Their incentive is to keep players buying new games rather than playing old ones.

Exactly. If you're happily playing Abandoned Title III, why would you need to buy New Hotness XXVII?

It's pretty much the same kind of thinking that counts each viewing of a pirated movie as lost revenue — nevermind that you can watch a DVD or BD over and over and over, and not get charged each time...

Nevermind that going to a theatre to watch a movie over and over would GET charged each time...

> None of the games in question are making any money, and the publishers don't expect to make any money in the future on them.

I don't know if that's true. Steam, GOG, Nintendo's Virtual Console... there's money being made on publisher back-catalogs these days, and even if the publisher has no current plan to release or support these games, the value of that back catalog is part of the total value of the company at sale or liquidation.

Planned obsolescence.

If people have old games to play, they can play them instead of new games. All sorts of creative industries have an interest in destroying the public domain because it provides value to the world which thus means less demand for new creations. Nobody wants to admit this, and it is usually not consciously the focus of their copyright arguments (even to themselves), but it's the real source.

As someone who works in the arts, I disagree. You're assuming a 'lump of attention', in which if attention is paid to public domain work (eg a classic silent movie) some other modern work will have to go unwatched. That's true in the very short term, insofar as most people like to watch one movie at once (or play one game at once, or...adjust as appropriate), but a great deal of cultural work depends for its aesthetic effect on consumers' familiarity with prior work, notwithstanding the fact that one is 'competing' with it. The project I'm developing right now includes a bunch of references to other work, some of which is due to fall into the public domain in a few years, and other work which may or may not be in the public domain (I'm actively following a piece of litigation to find out whether I need to cough up thousands of dollars in licensing fees to have someone sing 'Happy Birthday', for example).

Have you never seen or heard of the Wii virtual console or any of the Sega\Actvision\whoever classics collections? Just because they don't sell them right now or expect to make money on them in the next 20 mins doesn't mean there is no money expected from them in the future. With the current copyright law the future is for fucking ever, and who knows when the next round of nostalgic resurgence is?

Just like the Disney vault BS, absence makes the heart grow fonder.

It's absolutely about preserving their ability to resell the games later. Maybe slightly upscaling them so they can charge full-price, but, even if not, think about how many times Nintendo's sold, say, Super Mario Brothers. No coincidence that they've been one of the most aggressive pursuers of people distributing ROMs.

Because past products compete with present products. This is why the movie and record industries have been aggressively antihistorical: you can't sell the kids your new crap if they know it's crap.

It's almost as if intellectual property is becoming something sacred, a moral category, a goal unto itself.

> I don't understand why the ESA cares at all about this.

Simple. They are control freaks and have paranoid fear of DRM dying out. That's because DRM + anticircumvention were never about copyright. It's for controlling markets and stifling technological progress.

It isn't about old games, it is about new ones. They think by giving exceptions to old games it will make it more likely, easier, to give them to new games. Or that people will find it more acceptable.

My guess is this is just the lazy way to deal with the situation. Instead of working out who can do what with old stuff, the just say no.

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