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Museums Can Now Legally Jailbreak Game Consoles, But Gamers Aren't Allowed

New updates to copyright law are a win for archivists but fall short of lifting restrictions on individuals.
Image: Derek Mead

Last year, Electronic Arts announced that it was ending online support for 50 of its games. As much as you may love Battlefield 2, Electronic Arts is a business, and it only pays for servers and support for its games as long as it's profitable. Organizations like the Internet Archive and the Museum of Art and Digital Entertainment are there to step in and preserve game history as important cultural artifacts when they're no longer profitable, but copyright law can often make their work more difficult than it needs to be.


If a publisher no longer supports a game, sometime the only way to keep it running is by bypassing its digital rights management (DRM), or hacking a game console, which was illegal until today.

The law in video game historians' way here was the Digital Millennium Copyright Act's (DMCA) Section 1201, which makes circumventing technological protection measures (TPMs) illegal. The US Copyright Office considers new exemptions from 1201 every three years as part of the DMCA rulemaking process, and on Tuesday it accepted many exemptions the Electronic Freedom Foundation (EFF) asked for, including an exemption that now makes it legal to circumvent DRM for video games, with some important caveats.

For one, players are allowed to circumvent DRM for single-player games that renders them completely unplayable once the publisher stops supporting them, but the same is not true for multiplayer games.

"I'm really excited that the Copyright Office chose to grant part of the exemption and definitely cleared up some of the legal uncertainty around removing authentication mechanisms, but it's too bad that office chose to only support this for single-player play," Kenda Albert, a Harvard Law School student who helped the EFF seek the exemptions, told Motherboard. "The multiplayer component was really, really important to a lot of people who wrote in and provided testimony."

There are basically two big wins here for game archivists and players in general. The first is that anyone who bought a single-player game that needed to check in with an authentication server can now legally circumvent that process if the publisher takes the authentication server offline. Take for example Diablo III, which has sold 30 million units to date. You don't have to play its multiplayer mode, but the game does need to connect to developer Blizzard's servers before you can play it at all, even by yourself. The new exemptions means that if Blizzard ever shuts those servers down, players will be allowed to circumvent that authentication server to keep playing.


The second big win is that museums, libraries, archives, and other institutions can now legally modify or "jailbreak" game consoles if that's what it takes to preserve and keep the game running. This was one thing the EFF asked for that the Electronic Software Association (ESA), the association that represents and lobbies for game publishers, really didn't want.

The exemption applies to institutions, but not individuals, who are still not allowed to jailbreak consoles.

As the ESA explained in a formal complaint in response to the EFF's request for exemption, the same kind of console jailbreaking that archivists might use for legitimate reasons is also used to pirate games. That's probably why the exemption applies to institutions, but not individuals, who are still not allowed to jailbreak consoles.

While those are two big wins for the EFF and video game historians, there's still a long way to go. For example, it's still against the law for anyone to run their own massively multiplayer online (MMO) game server after that game has been shut down, so at the moment, there's no legal way to archive an MMO.

If World of Warcraft, for example, stops making money and Blizzard doesn't want to pay to keep it online anymore, there's no legal way for anyone to archive the game for historical purposes if Blizzard claims its copyrights. (That doesn't always happen, by the way. Many of those games Electronic Arts stopped supporting got new servers thanks to an independent multiplayer service called GameRanger, and Electronic Arts doesn't mind.)

Worse yet, users still can't run their own servers for multiplayer modes in games after the publisher has shut them down. Take Mario Kart Wii for example. It sold 36.38 million copies while advertising online multiplayer as a feature. Nintendo has since shut down the servers it relies on, and you're not allowed to run your own.

"The good part is that we'll get another shot at this in three years," Albert said. "The bad part is we have to do the entire process again, and there's no presumption that the exemptions that were granted in this round will get granted again. I also think based on our work on the exemption, the number of games that will become difficult or impossible to play because of DRM seems to only be increasing as sales go digital, so it's possible we'll be able to make even a stronger case in three years."