Reviving and maintaining software no longer supported by its developers requires hacking - and hacking is piracy, says the Entertainment Software Association (ESA).
The Electronic Frontier Foundation (EFF), however, disagrees with the ESA's stance on abandoned games. The EFF wants the U.S. Copyright Office to provide some protection for those who keep games from fading into oblivion.
In November 2014, the Internet Archive preserved over 900 games online. The games had to be reworked to run smoothly in the online emulation software.
Despite how commendable the act may be, that massive effort still technically required hacking and ultimately constitutes piracy.
Section 1201 of the Digital Millennium Copyright Act, which lays out anti-circumvention provisions, prohibits the use of software in any way other than the manner in which the developer intended it to be.
"The proposed exemption would jeopardize the availability of these copyrighted works by enabling - and indeed encouraging - the play of pirated games and the unlawful reproduction and distribution of infringing content," states the ESA.
According to Mitch Stoltz of the EFF, the ESA argues that allowing exceptions to the "blanket ban" on hacking would send the wrong message. While the ESA asserts that some people might start to think that hacking is legal, Stoltz believes that the act can be made legal, and it is what has facilitated the rise of the video game industry.
"Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software," states Stoltz. "If 'hacking,' broadly defined, were actually illegal, there likely would have been no video game industry."
Beyond disputing the ESA's classification of hacking, the EFF says that the Section 1201 needs to allow exemptions for abandonware so that people can continue playing games that they already own, so titles don't erode into digital dust.
"Thanks to server shutdowns, and legal uncertainty created by Section 1201, their objects of study and preservation may be reduced to the digital equivalent of crumbling papyrus in as little as a year," Stoltz states. "That's why an exemption from the Copyright Office is needed."
Along with provisions for abandoned video games, the EFF is seeking exemptions for three areas that are currently limited by Section 1201:
Cars - security research, modifications and repairs
Ripping Content - DVDs, BluRay disc and web streams for remixes
Jailbreaking - phones and tablets
