In the United States, copyright law protection that prohibits circumvention of digital rights management (“DRM”) is managed by the Digital Millennium Copyright Act (“DMCA”).  Specifically, the DMCA criminalizes the production and dissemination of any technology, device, or service that is aimed at bypassing copyright measures that restrict access to works with copyright protection.

Development of DMCA Exemptions

It is important to note, however, that DMCA exemptions and safe harbors exist. They specifically grant access if prohibition can be demonstrated to have a substantial adverse effect on the ability of people to make non-infringing uses of copyrighted works.  These exemption rules are reviewed and revised every three years, as necessary.  The process to review and revise exemptions usually requires exemption proposals to be submitted by the public to the Registrar of Copyrights, and after a process of hearings and public comments, final verdicts are rendered and issued.  Because DMCA exemptions are valid for a term of only three years, they must be resubmitted and renewed if they are to remain valid.  Because technology has been changing so rapidly, it is not uncommon for some exemptions to be consistently renewed while others are not.

Preservation of Video Games Proposed As An Exemption

This past year marked another year for the the U.S. Copyright Office to solicit proposals again.  Last June, the Copyright Office published a Notice of Inquiry requesting petitions to renew existing DMCA exemptions as well as petitions to create new exemptions.  One of the newest proposals submitted to the Copyright Office relates to the preservation of video games.  Specifically, the proposal would allow exemption for libraries, archives, or museums to protect video games for which outside server support has been discontinued.

The Museum of Art and Digital Entertainment Exemption Proposals

Specifically, the Museum of Art and Digital Entertainment (“MADE”) has indicated interest in expanding existing DMCA exemptions that already apply to video games to include online multiplayer games because current DMCA exemptions do not apply to video games that require online service.

The main impetus behind MADE’s proposal is that advocates of video game preservation believe that online games have increased significantly in popularity, and as such, must be preserved in order to properly represent the era’s zeitgeist.  The copyright issue arises from the concern that if the original service provider of the games no longer wishes to provide servers and Internet access, then the online video games will vanish without any archival ability.

Popularity of Video Games

As evidence of their view, MADE points to figures and statistics that show that video games have surpassed the film industry as the number-one money maker in the entertainment sector with video games actually providing material for feature films.  Popular franchise like World of Warcraft and Assassin’s Creed were both recently made into films, and under the new DMCA exemptions, a massive multiplayer online role-playing game like World of Warcraft would be preserved even after Blizzard decides to stop providing servers and online service for the game.  At its peak, World of Warcraft boasted over 11 million subscribers and has enjoyed the launch of several expansions and crossovers, and as such, MADE argues that the cultural phenomenon must be preserved in some form.  The proposed DMCA exemptions would allow museums to keep some form of World of Warcraft available long after the original creator takes the game offline.

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For more information on this topic, please visit our Copyright Protection service page, which is part of our Software & Copyrights Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the copyright firm and its copyright attorneys may be found at www.klemchuk.com.

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