EFF Wants Legal DRM Circumvention for Art Preservation
Subject: General Tech | November 11, 2014 - 03:10 PM | Scott Michaud
Tagged: pc gaming, gaming, eff, DRM, consolitis
This is something that I have been saying for quite some time now: games are struggling as an art form. Now I don't mean that games are not art; games, like all content that expresses feelings, thoughts, and ideas, are art. No, I'm talking about their ability to be preserved for future society and scholarly review. The business models for entertainment are based in either services or consumables. In the entertainment industries, few (but some) producers are concerned about the long tail – the extreme back-catalog of titles. Success is often determined by two weeks of sales, and the focus is on maximizing those revenues before refreshing with newer, similar content that scratches the same itch.
DRM is often justified as maximizing the initial rush by degrading your launch competitors: free versions of yourself. Now I'm not going to go into the endless reasons about where this fails to help (or actively harms) sales and your customers; that is the topic of other rants. For this news post, I will only discuss the problems that DRM (and other proprietary technologies) have on the future.
When you tie content to a platform, be it an operating system, API, or DRM service, you are trusting it for sustainability. This is necessary and perfectly reasonable. The problems arise with the permissions given to society from that platform owner, and how easily society can circumvent restrictions, as necessary. For instance, content written for a specific processor can be fed through an emulator, and the instruction sets can be emulated (or entirely knocked off) when allowed by patent law, if patents even interfere.
Copyright is different, though. Thanks to the DMCA, it is illegal, a federal crime at that, to circumvent copyright protection even for the betterment of society. You know, society, the actual owner of all original works, but who grants limited exclusivity to the creators for “the progress of Science and useful Arts”. Beyond the obvious and direct DRM implementations, this can also include encryption that is imposed by console manufacturers, for instance.
The DMCA is designed to have holes poked into it, however, by the Librarian of Congress. Yes, that is a job title. I did not misspell “Library of Congress”. The position was held by James H. Billington for over 25 years. Every three years, he considers petitions to limit the DMCA and adds exceptions in places that he sees fit. In 2012, he decided the jailbreaking a phone should not be illegal under the DMCA, although tablets were not covered under that exemption. This is around the time that proposals will be submitted for his next batch in late 2015.
This time, the EFF is proposing that circumventing DRM in abandoned video games should be deemed legal, for society to preserve these works of art when the copyright holders will not bother. Simply put, if society intended to grant a limited exclusive license to a content creator who has no intention of making their work available to society, then society demands the legal ability to pry off the lock to preserve the content.
Of course, even if it is deemed legal, stronger DRM implementations could make it technologically unfeasible to preserve certain works. It is still a long way's away before we encounter a lock that society cannot crack, but it is theoretically possible. This proposal does not address that root problem, but at least it could prevent society's greatest advocates from being slapped with a pointless felony for trying to do the right thing.