EFF is, unsurprisingly, misrepresenting ESA. ESA's objection is not that "this is hacking and hacking is illegal". "Hacking" is simply the term of art the ESA response chooses to use for the reversing and manipulation of game titles. EFF is trying to hang ESA on that impolitic choice of words.
ESA's position, broadly, is:
* Game publishers own their titles and are entitled the economic benefits that stem from them.
* There is no exception in copyright law for "maintaining access to matchmaking services", and, more specifically, retaining access to online services isn't a use case that falls under fair use.
* The duration of copyright lasts far longer than "6 months after the matchmaking service stops working", which is the time threshold in EFF's exemption request.
* Game titles themselves have value separable from their online services, and indeed many/most games with online components charge separately (either directly or through agreements with the game console online services), further suggesting that the termination of online services doesn't impact the copyright on the game itself. Indeed, ESA contests the idea that these games are "abandoned" at all.
* The modifications required to substitute a new matchmaking service are intrusive and impact features other than those needed to restore matchmaking, creating a legal ambiguity.
* Similarly, the modifications extend far past the games themselves and into the consoles/phones/whatever, creating an ambiguity about whether/when jailbreaking limitations are contractually enforceable.
* Ambiguities aside, the technical capabilities that would need to be exempted to make this work are so sweeping as to potentially moot the copyright of most of the code on the platform (ie, to restore matchmaking, you'd need to exempt reversing and modifying and trafficking in the modified versions of entire closed operating systems).
* The beneficiaries of game modifications will include commercial entities who will gain legal cover for selling services that capture benefits that are rightfully owed to the game copyright holder.
... I'm about 1/3rd through their response and I've probably failed to capture 1/2 the ESA arguments I've read so far.
The sad thing about this is, even with ESA's arguments charitably summarized and faithfully captured, virtually none of EFF's audience is going to be persuaded. There was practically no risk that ESA would persuade EFF's audience. Should video games be legally hackable? Virtually everyone who cares what EFF thinks believes: "yes!!^$!".
There was absolutely no reason for EFF to be deceptive about this. And yet, here they are again, insulting our intelligence. EFF does a lot of good and important things, but their online advocacy is not one of them.
There have been and there are games on the market where you cannot operate any functionality without being online and connected to the publisher's DRM service. Single player mode is disabled.
Popular video games such as Diablo III and Starcraft 2 employ always-on DRM by requiring players to connect to the internet to play, even in single-player mode. Reviews of Diablo III criticized its use of always-on DRM.[1][2] As with Diablo III, SimCity (2013) experienced bugs at its launch due to always-on DRM....A major disadvantage of always-on DRM is that whenever the DRM authentication server goes down, or a region experiences an Internet outage, it effectively locks out people from playing the game.
Given publishers claim they are selling a perpetual license to gamers when they purchase a game, it is unfair to then disallow gamers from doing whatever is necessary to play the game, as the license quite explicitly permits [the act of playing].
That's true, but then, those titles haven't been abandoned, have they?
I'm asking because the question is interesting. I want to be careful about being boxed into supporting ESA. I don't; I just think EFF's online advocacy is chronically misleading.
Also consider the case of games like Starsiege: Tribes, where, to my recollection, it was perfectly possible to set up online game servers, but the master server was hard-coded in the executable, so anyone wishing to play this game nowadays must "hack" it.
On consoles the case is even worse. Take for example the case of http://en.wikipedia.org/wiki/Destiny_of_Spirits , a game for which the servers will be shut down on June 30, 2015. There is currently not even a feasible way to gain any kind of access to the executable itself to redirect it somehow, since despite the fact of it being "free", it's on an incredibly locked-down platform. Further, despite it being free, it has microtransactions and there will likely be a good number of people who spent preposterous amounts on it, who will be locked out of it entirely.
Frankly, there is a myriad of games out there with online components who are at this date straight-up broken and unusable pieces of software, and as far as i am concerned any attempt to portray this as anything other than fact is a bald-faced lie.
Edit: Also, as for you being boxed into something, you're making the age-old mistake of saying "don't", without providing an alternative "do". (In this case the "do" would be concrete examples of what the EFF should've said instead.) It's too late to fix that now, but maybe keep that in mind next time.
EditEdit: Also consider that effectively the two games SC2 and D3 are abandoned as far as customers are concerned who naively bought them to play as single player games and have no internet connectivity. A similar case is also Elite: Dangerous, which was promised as an offline- and online-game, but in which the offline- component was cut mid-development despite many of the kickstarter investors having invested based entirely around the premise of obtaining a working singleplayer product.
> it was perfectly possible to set up online game servers, but the master server was hard-coded in the executable, so anyone wishing to play this game nowadays must "hack" it.
I assume it was an URL so a modified hosts file without touching the game itself would be enough. If it was a fixed IP it could be also handled outside the game.
What happens when the companies go out of business? I suppose at that point if you break the law to get the game working there's no one left to sue you. Just like how you can circumvent existing abandonware's copyright restrictions to get the game working, (or even to restore multiplayer), acting illegally, and be practically fine.
>"Hacking" is simply the term of art the ESA response chooses to use for the reversing and manipulation of game titles.
I thought EFF made that pretty clear. Reversing and manipulation are things that should not be banned.
Patching should not be considered copyright infringement. It's nonsense.
All the points you're listing seem pretty weak to me. People are allowed to make services that can be applied to your product without paying you. The six months thing is just there to make their lives easier, I'd be fine having the exemption always apply. The idea that a multiplayer game with no servers isn't abandoned is laughable. Who cares if other features are impacted? Jailbreaking should be allowed, no problem there. Restoring matchmaking does not require trafficking the entire work. Again, people can make services for your product without paying you.
I have read part of the ESA brief. I have skimmed through the rest. If I was going to be charitable to the EFF when reading their article here, I would say that there is so much ridiculous bullshit in the ESA brief that the person who wrote the EFF article probably just picked the most egregious example they could find before their eyes glazed over (or bled) and then focused on that. Yes, the EFF has failed to encapsulate the ESA position well, but frankly the ESA position is based largely on specious logic and willful ignorance. To the point that I'm not sure that it's possible to encapsulate their position well, for much the same reason it can be difficult to encapsulate the position of an obstinate, spoilt child. They are ignoring important facts in places. Most places. They are taking conclusions predicated on heavily biased samples of irrelevant minutiae, and presenting them as sweeping indictments of the proposed exemption. They are, in short, arguing in an incredibly deceitful, deceptive way, even by video game industry lawyer standards.
Maybe we should demand more from the EFF, but I certainly would not want the job of having to take this sort of nonsense seriously. At any rate, if the EFF article gave me a bad impression of the ESA, actually reading the ESA brief did not improve it.
The whole concept of a legal brief is that you devise every argument you possibly can and throw them all at the wall/venue to see what sticks. These are documents written by lawyers to advance legal arguments; they aren't position papers. It is a little unfair to ding them for following the protocols of the law.
Of course, it is deeply unfair of EFF to evaluate ESA's brief as if it was a position paper, and in the process caricature and mis-summarize it.
Once again: I don't want to get boxed into sticking up for ESA.
I've read enough of your other replies ITT to know you aren't exactly sticking up for the ESA, but rather playing your usual devil's advocate/contrarian role :-) You're not getting boxed in, at least not by me.
Let's say the ESA knows of some solid reasoning which will support its point for most reasonable people. If it does, it is certainly not presenting them in this legal brief. In that case, something is very wrong with our legal system, because then things like facts and coherent logic have a value of about ε, and that's harmful. And if that's the case, then you are right that it is not exactly fair to hold the ESA to what they've put down here, as though it's a position paper. But if that's what's happening, then to make that excuse for them (especially when they have not, as far as I know, written down the 'real argument' anywhere else) feels an awful lot like supporting a broken legal system, which I don't want to do.
I did think of your point as I was typing up my earlier response, however I decided I don't care. A legal brief and a position paper are not the same thing, but they should be correlated. And by 'correlated' I don't just mean that they share the same conclusion - they should be based on roughly the same reasoning. I know that you're sort of just supposed to use whatever tactics you can to win, and I recognize there is some value to having a system where the goal is to win rather than arrive at the truth. But if that system encourages twisting the facts to the point that you're basically just lying, then it goes too far. And I'm not going to encourage that by making the excuse "oh well they're lawyers so what did you expect". I demand better.
For what it's worth, while I do think our legal system has a great many problems, I don't think it is quite so bad as to support this hypothesis. I think the ESA has presented a poor argument because their position is poorly supported. I think they have twisted the facts and omitted other ones because they know this. I believe they are using these deceitful and deceptive tactics not because they are trying to support a reasonable cause within an unreasonable system, but because they trying to support an unreasonable cause within a framework that is, for all its faults, still sometimes capable for recognizing such bullshit for what it is.
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.12 Still other games may use cloud
servers to offload core game calculations to create more realistic game
experiences.13 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.
I think the only people who could believe what the ESA has written in that paragraph are people who don't actually play videogames or understand them at all. No one pays for a leaderboard feature, for example. As for Minecraft, the ability to create the world around you is inseparable from what people "pay for when they buy the game." In other words, it's not a separate feature, or some kind of upsell. It's the heart of the game.
The topic at hand is "Should it be lawful to revive a videogame after it has been abandoned?" That is, games which 1. no longer work and therefore cannot generate any revenue, and 2. can be made to work through reverse engineering the network protocols alone.
The last point is the key. The network protocols are all that need to be reverse engineered. In other words, if it's a PC game, it can be pointed to a fake gameserver which you write, which responds as the "real" gameserver would have. If it's a console game, it's no different. There is no reason a console has to be modified at all in order for people to be able to play an abandoned game, in multiplayer mode, unless maybe the ESA is suggesting the publisher pushed out some kind of "killswitch" patch which removed the multiplayer features of the game entirely via an update. However, such an eventuality can be sidestepped by the hackers by getting people to uninstall the game and then reinstall whatever came in the disc they bought, and then run a local proxy to block the update servers. It should be obvious at this point why no console modifications are necessary to make this work.
The executive summary doesn't seem thoughtful. It seems to be handwaving. It almost seems to be creating issues where none exist, as in the case of arguing that "the modifications extend far past the games themselves and into the consoles/phones/whatever, creating an ambiguity about whether/when jailbreaking limitations are contractually enforceable." What am I missing?
I wish to be persuaded. Why do you, as a gamer and a hacker, believe the ESA has a case?
EDIT: I tried to upvote your comment to cancel out your downvote, but you've attracted more than one. Strange.
HN is so adversarial nowadays that I've basically left. I hope that I managed to convey that my intent here is not to challenge your views, but rather to learn from them.
I actually have no idea if ESA has a case. This is a complicated situation. I generally want licenses to be enforceable but reasonable, and a narrowly tailored copyright exemption might be a good way to ensure they're reasonable.
What I am sure of is that EFF's blog post blatantly misrepresents the case ESA is trying to make.
Ah, whoops. No idea why I thought you were a gamer, sorry.
I agree. The blog post would carry more force by presenting the ESA's points and demonstrating why they're unrelated to the idea at hand: to revive an abandoned videogame, one simply needs to hack together a fake gameserver. That's doable without modifying anything, so the legality of hacking consoles or jailbreaking shouldn't be at issue. Etc. If the EFF were to point out how strange those arguments sound when contrasted with the reality of what people want to do, it would be much more effective.
Thanks for breaking out the ESA's points from that 71-page document. They don't make it an enjoyable read.
I no longer expect the EFF to represent anything faithfully, really. They seem incapable of genuine honesty and mostly go for the shock-and-scare routine they've seen their adversaries perfect. Consequently, I've bucketed them into groups like the ESA and just ignore them now.
ESA's position, broadly, is:
* Game publishers own their titles and are entitled the economic benefits that stem from them.
* There is no exception in copyright law for "maintaining access to matchmaking services", and, more specifically, retaining access to online services isn't a use case that falls under fair use.
* The duration of copyright lasts far longer than "6 months after the matchmaking service stops working", which is the time threshold in EFF's exemption request.
* Game titles themselves have value separable from their online services, and indeed many/most games with online components charge separately (either directly or through agreements with the game console online services), further suggesting that the termination of online services doesn't impact the copyright on the game itself. Indeed, ESA contests the idea that these games are "abandoned" at all.
* The modifications required to substitute a new matchmaking service are intrusive and impact features other than those needed to restore matchmaking, creating a legal ambiguity.
* Similarly, the modifications extend far past the games themselves and into the consoles/phones/whatever, creating an ambiguity about whether/when jailbreaking limitations are contractually enforceable.
* Ambiguities aside, the technical capabilities that would need to be exempted to make this work are so sweeping as to potentially moot the copyright of most of the code on the platform (ie, to restore matchmaking, you'd need to exempt reversing and modifying and trafficking in the modified versions of entire closed operating systems).
* The beneficiaries of game modifications will include commercial entities who will gain legal cover for selling services that capture benefits that are rightfully owed to the game copyright holder.
... I'm about 1/3rd through their response and I've probably failed to capture 1/2 the ESA arguments I've read so far.
The sad thing about this is, even with ESA's arguments charitably summarized and faithfully captured, virtually none of EFF's audience is going to be persuaded. There was practically no risk that ESA would persuade EFF's audience. Should video games be legally hackable? Virtually everyone who cares what EFF thinks believes: "yes!!^$!".
There was absolutely no reason for EFF to be deceptive about this. And yet, here they are again, insulting our intelligence. EFF does a lot of good and important things, but their online advocacy is not one of them.