According to the Electronic Frontier Foundation, the ESA is blocking efforts to preserve classic games on the basis that hacking is a crime.
There's a growing concern right now that most classic games we grew up on will be impossible to preserve for future players. DRM software, out-of-date hardware, and licensing issues will make it extremely difficult for historians to study these titles - especially once servers providing access shut down. That's why the Electronic Frontier Foundation proposed an exemption to the Digital Millenium Copyright Act, allowing anyone to alter games to make them playable when publisher support ends.
Sound great? One problem: The Entertainment Software Association - alongside the MPAA and RIAA - are opposing the exemption on the basis that hacking game files encourages illegal piracy.
This issue revolves around Section 1201 of the DMCA. As the law stands, if you hack a game's files to circumvent DRM, you're breaching copyright and committing a crime no matter what your intent. The EFF's exemption would allow access controls to be circumvented for third-party historical preservation. But according to a blog post by the EFF, the ESA doesn't want to send a message that "hacking-an activity closely associated with piracy in the minds of the marketplace-is lawful".
The EFF continued by saying that hacking is well within the boundaries of the law, and that the ESA knows it. "Of course, 'hacking' is legal in most circumstances," its post reads. "ESA, the spokespeople for a group of software companies, knows this full well. Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software.
"If 'hacking,' broadly defined, were actually illegal, there likely would have been no video game industry."
In response, the ESA sent The Escapist a copy of its Copyright Office filing, which states that Section 1201 is essential for the industry. "The proposed exemption would jeopardize the availability of these copyrighted works by enabling-and indeed encouraging-the play of pirated games and the unlawful reproduction and distribution of infringing content," it reads.
The filing goes on to state that the ESA isn't against the preservation of games - and in fact has taken action to preserve such titles itself. "The Entertainment Software Association worked with the Smithsonian Institute to offer The Art of Video Games, which was one of the first exhibitions exploring the evolution of video games as an artistic medium," it continues. "ESA also has partnered with GlassLab, an unprecedented research and development effort that is exploring the potential for existing digital games to serve as powerful learning environments and providing real-time assessments to improve student learning."