The EFF (Electronic Frontier Foundation) has come out with a report claiming that the ESA’s latest petition to the Copyright Office will make game preservation illegal. However, some parts of the EFF’s claims don’t hold up.

The EFF report states that the ESA (Electronic Software Association) is acting in regards to Section 1201, the DMCA anti-circumvention provisions related to DRM. Some entities, including the EFF, are seeking exceptions for these provisions for the sake of game archival and preservation. According to the EFF, the ESA’s latest comment to the petition seeks to define all forms of hacking as illegal, disallowing any kind of use, such as restoring functionality to older games.

However, not all of the EFF’s claims hold up to scrutiny, as you can see in the excerpt the EFF quoted:


So, what’s the problem? EFF paraphrases this quote as the ESA declaring that ‘hacking’ is ‘associated with piracy.’ This quote does not mention that ESA is specifically referring to video game consoles. Furthermore, the report only cites examples for active video game consoles, specifically the 3DS, PS3, and PS4. No mention of PCs or, for that matter, older and discontinued video game consoles.

There is certainly a grey area between the ESA’s and EFF’s claims. For example, 2K Sports was recently convinced to return online functionality to NBA 2K14. If they hadn’t done so, should fans be allowed to hack their consoles to keep playing online via their own servers? How would this affect future and upcoming NBA 2K games?

For the moment, at least, the EFF’s report doesn’t acknowledge where the ESA is justified in defending the industry’s interests. Read the ESA’s legal document here and the EFF’s report here.

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