U.S. Copyright office: it's legal to crack copy protection on old games

Amid a raft of copyright enforcement rules issued yesterday, DVD copying and the right to hack cellphone lockouts got all the news. Hidden right at the end of the story is this:

“For computer software and video games require machines that are no longer available, copy-protection controls may be circumvented for archival purposes.”

Talk about a buried lede!

I also blogged it, but I think it’s against the rules to link it. :-)

Beautiful, how about copy protection on current games? :)

Well, PC gaming is dead, you know.

Tell that to the PS3 fanboy who decided to go with the $7500 computer instead

Doesn’t this essentially legalize ROMS and emulation of all kinds for … well, SNES era and earlier, as well as, say, Jaguar, 3D0, etc.?

Sweet, lets see them run Linux on Wii and then run SNES emulator, following by laughter at people who spend $5 on a game they already own.

Cracking copy protection != infringing copyright.

One way of cracking copy protection = emulating the entire CD image.

Ah, so for those who want to emulate games they own? I’ve never done the emulation thing, and I’ve got a lot of old games shoved in closets. Was just wondering if this made it cool for me to emulate and garage sale/toss those.

As far as I know, it has always been cool to have roms of games you own. You sell it though, and it becomes questionable.

Heh. I don’t sell games, nor do I sell books. I’m a packrat for entertainment. And if that’s the case, I guess I’ll start ROM-ing away!

So what I want to know is since Windows ostensibly includes DOS backwards compatibility, does this still not allow cracking older PC games? As technically, machines to run those games are still available?

SNES/NES excluded, most of those games can’t even be bought anymore or the company that made them went out of business, so why not?

Yeah. There’s always been the abandonware grey area. I’d love to see a real ruling on that stuff. I mean, if the company is long gone and no one can make money off a game in any case, why not spread the old-school love?

Well, let’s stop this nonsense before it gets too far – this does NOT legalize roms or allow consumers to do anything with old software they couldn’t already do.

The actual text of the new regulation reads (with emphasis added to highlight important bits):

Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Care to enlighten us about the official definition of “archive?”

Words in statutes and regulations are given their normal and ordinary meaning (in the absence of evidence the author intended a different meaning). Thus, the following definition of “archive” from Meriam-Webster would probably be close to the one adopted if the term ever had to be defined in court:

Main Entry: archive
Pronunciation: 'är-"kIv
Function: noun
1 : a place in which public records or historical documents are preserved

Regardless, even if there were some wiggle-room in the term “archive” (i.e. even if it could include individual consumers who like pirating old software), there is no ambiguity in the use restriction. This exemption ONLY allows circumvention “for the purpose of preservation or archival reproduction.” In other words, the exemption DOES NOT allow one to actually run or use the software being preserved/archived.

So do you need to be a certified historian or something in order to avoid charges for playing old games? I can imagine the hobby computer game historian in 2050, getting jailed for cracking and running a 1990-era game. I think we all can agree that’s a completely ridiculous situation, but isn’t that what these laws, with their slight “exemptions”, are aiming for?

Note that even though teachers are allowed to make copies of DVD’s for educational purposes (since when did you need to break encryption to achieve that, anyway?), you are apparently still not allowed to play your DVD’s under Linux.

I think you’re interpreting the terms too harshly. While I agree that this does not legalise private circumvention of copy protection, archives and libraries exist for the purpose of collecting material for future reference. In order to reference the material users need to be allowed access to the data. If, say, someone wanted to write an academic paper on the evolution of home computer games in the 80’s allowing that person access to the games so they could play them would be a legit reason to make them available.

To clarify: this exemption does not allow ANYONE (libraries, archives, consumers, etc) to lawfully play old games they did not purchase. It is a very narrow exception designed to allow libraries and archives to store/archive (but NOT use, run, or play) copies of old games that require specialized hardware.

Copyright law is a balancing act between two competing societal interests: the interest in giving authors an incentive to create and the interest in giving the public free and unfettered access to information. This is why copyrights have a definite expiration date (in fact, the U.S. constitution expressly requires copyrights to be of limited duration). Once a copyright expires, a work enters the public domain and can be freely used, copied, edited, etc by all.

My guess is that the rationale behind this exemption is that software designed to run on a particular piece of hardware might be lost forever if not transferred to another medium. If that happened, the work would not be able to enter the public domain when the copyright expired. The exemption attempts to address this concern in a way that does not greatly limit or take away from the rights of copyright holders (the fact that this exemption DOES NOT allow one to run/use the archived software is what ensures that copyright holders’ rights are still valuable - they still control whether someone can use the software).

The right to access the information would not flow from this highly limited exemption, which solely addresses archival storage of certain software. Any right to run/use that software would have to come from another law or exemption (in your example, the fair use doctrine might permit use of the archived software for the limited purpose of academic research).

The point stands that this regulation is not something that would benefit the average person who wants to play old games that continue to be protected by copyrights.

Since always. And teachers would only be able to copy DVD’s that they’ve expressly given permission to copy.