Comment by tptacek | Hacker News Reader

Comment by tptacek | Hacker News Reader

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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

copyright owner entitled to benefits/revenue from online services

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

copyright holders already doing preservation work with museums

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?

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.

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.

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