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Preserving old video games is illegal hacking, says ESA

The Entertainment Software Association (ESA) has stated that preserving old video games is illegal, as the process of restoring them amounts to “hacking.”

The claims refer to Section 1201 of the Digital Millennium Copyright Act, which says that users are not allowed to modify titles in order to keep them playable after the game’s original publishers have shut down its servers.

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The approach has been criticised by the Electronic Frontier Foundation (EFF) as being extremely restrictive and having no appreciation of whether the preservation of games is historically important. Upholding Section 1201 could cause potential problems for video game enthusiasts, academics, museums and organisations such as the Internet Archive. The latter of which recently launched its Historical Software Collection, which hosts thousands of classic games.

EFF attorney Mitch Stoltz believes that a blanket enforcement of Section 1201 would be historically damaging and that some exceptions should be made.

“Thanks to server shutdowns, and legal uncertainty created by Section 1201, their objects of study and preservation may be reduced to the digital equivalent of crumbling papyrus in as little as a year.” Stoltz explained. “That’s why an exemption from the Copyright Office is needed.”

Although, the EFF is asking that museums, archivists and academics to be exempt from the ruling, the ESA believes that such an approach would set a dangerous precedent, specifically that “hacking—an activity closely associated with piracy in the minds of the marketplace—is lawful.”

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The EFF rightly points out that hacking is, in fact, legal and that the modification of existing software is one of the key foundations of the video game industry, suggesting that “if ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”