[game_preservation] More good news re: DMCA

[Henry Lowood]

Jerome,

Yes, that's what I understood about the exemption, but practically 
speaking, except in the obvious case of the Michigan team that made the 
proposal, a decision based on research interest is not quite that 
straightforward.  I mean as a practical matter, not a legal distinction. 
I will have to look how the language in the application about libraries 
translated into the final ruling -- did you catch if it did? Because it 
was rather ambiguous in the application, I thought.

Henry

On 8/4/2010 12:53 PM, Jerome McDonough wrote:

> Keep in mind that what's in the application is not necessarily what's 

> approved.  The Dongle case is a particularly good example.  They asked 

> for a much wider exemption than they got.

>

> In your hypothetical case of a researcher investigating the history of 

> security technology, the current rule is clear.  It's to allow people 

> to test for active vulnerabilities that might render current systems 

> insecure.  Not to engage in historical research.  There's nothing in 

> the exemption that would allow you to defeat DRM to make a copy of a 

> game for someone doing historical research.  And while we may regret a 

> rule that says libraries have to ask what you want to do with the 

> material before they give it to you, it's hardly an insurmountable 

> burden.

>

> Don't get me wrong.  I think the whole DMCA is daft.  But the meaning 

> of the statute, and current rule making, are pretty clear, and they 

> leave precious little room for any preservation activity that involves 

> breaking technological protection measures.

>

> On Aug 4, 2010, at 12:29 PM, Henry Lowood wrote:

>

>> Thanks, Jerome.  The security exemption application did open the door 

>> just a teensy bit wider towards the end.  It seemed to suggest (and 

>> yes, a lawyer would have to look) that if you are stuck with a game 

>> that has SecuROM on it or such, you can circumvent, suggesting but 

>> not saying that you could make a copy without the vulnerability.   In 

>> other words, a kind of crack, but it really was vague as to the terms 

>> for doing this.  It talks about "correcting security flaws."  Yet, 

>> you're right, only "security researchers" are mentioned.  But what if 

>> I am working on the history of security technology or, even more 

>> broadly, on the history of games, would the library then not make the 

>> copy for me? That seems like a rather impractical solution for the 

>> library -- to make judgments about preservation/access based on the 

>> topic of interest to the researcher.

>>

>> Henry

>>

>> On 8/4/2010 10:21 AM, Jerome McDonough wrote:

>>>

>>> On Aug 4, 2010, at 11:35 AM, Henry Lowood wrote:

>>>

>>>> All (sending to both NDIIPP and IGDA groups):

>>>>

>>>> I just checked the Copyright Office's announcement, and it includes 

>>>> two other relevant exemptions:

>>>>

>>>> source: http://www.copyright.gov/1201/

>>>>

>>>> exemptions 4 and 5 are relevant to game preservation, though not 

>>>> big winners -- they open up some interesting doors. Depending on 

>>>> how "dongle" is definied, 5 could actually be quite helpful 

>>>> (similar language was in the old videogame exemption that expired). 

>>>> Also, and this is a stretch, I wonder if 4 might be a way to copy 

>>>> MMO server-side software, in that you would have to address the 

>>>> user authentication system?  To be honest, I'm not sure what a use 

>>>> case for that exemption would be. Any ideas?

>>>>

>>>

>>> I am not a lawyer, so you can take anything I say regarding the law 

>>> with an infinite supply of salt.  Now that we have that out of the way:

>>>

>>> The exemption to DMCA restrictions for the purposes of testing of 

>>> security of video games definitely does NOT stretch to making 

>>> preservation copies.  It's quite specific: it's for testing for 

>>> security flaws only, not a backdoor mechanism to enable librarians 

>>> to make preservation copies.  If you were to try to use it for that 

>>> purpose and ended up in court, you'd lose.  Badly.  The use cases 

>>> mentioned with respect to this exemption mentioned in the Federal 

>>> Register are things like SafeDisc and SecuROM, which were shown to 

>>> introduce security vulnerabilities on machines where they were 

>>> installed.  Testing for those vulnerabilities required compromising 

>>> the DRM system.  Basically, this exemption is to insure that 

>>> security researchers can engage in their work and find and report on 

>>> vulnerabilities without getting chucked into prison.

>>>

>>> On the dongle exemption, dongles were defined in the first 

>>> rulemaking under the DMCA back in 2000 as "hardware locks attached 

>>> to a computer that interact with software programs to prevent 

>>> unauthorized access to that software."  The more recent rulemaking 

>>> is a little more confining: "Dongles are a type of hardware that 

>>> attach to either the printer port or the USB port of a computer in 

>>> order to make secured software function."  So, dongles are pretty 

>>> narrowly defined.  The exemption is also narrowly defined.  It only 

>>> applies when you have a dongle that malfunctions or fails, and you 

>>> can't find a replacement in the commercial marketplace and the 

>>> dongle cannot be readily repaired.  If the dongle doesn't work 

>>> because you upgraded your operating system and the new operating 

>>> system doesn't support the dongle, you're out of luck: the exemption 

>>> does not apply, as the dongle itself still works fine.  The ruling 

>>> is equally restrictive on the hardware side; it would not recognize 

>>> parallel ports as obsolete, as you can still obtain a parallel port 

>>> in the marketplace.

>>>

>>> So, I see very little reason for joy in these rulings from the point 

>>> of view of videogame preservation.  If you've got a dongle-protected 

>>> game and you can demonstrate that the dongle itself is dead and a 

>>> replacement isn't available, you can break DRM, but that's about it. 

>>>  And before anyone asks, I don't think the courts would smile on 

>>> people who demonstrate that the dongle is dead by leaving it in a 

>>> microwave for a few minutes.

>>>

>>>

>>> Jerome McDonough, Asst. Professor

>>> Graduate School of Library & Information Science

>>> University of Illinois, Urbana-Champaign

>>> 501 E. Daniel Street, Room 202

>>> Champaign, IL 61820

>>> (217) 244-5916

>>> jmcdonou at uiuc.edu <mailto:jmcdonou at uiuc.edu>

>>>

>>>

>>>

>>>

>>>

>>

>> -- 

>> Henry Lowood

>> Curator for History of Science&  Technology Collections;

>>    Film&  Media Collections

>> HRG, Green Library, 557 Escondido Mall

>> Stanford University Libraries, Stanford CA 94305-6004

>> 650-723-4602;lowood at stanford.edu;http://www.stanford.edu/~lowood

>>      

>

> Jerome McDonough, Asst. Professor

> Graduate School of Library & Information Science

> University of Illinois, Urbana-Champaign

> 501 E. Daniel Street, Room 202

> Champaign, IL 61820

> (217) 244-5916

> jmcdonou at uiuc.edu <mailto:jmcdonou at uiuc.edu>

>

>

>

>

>


-- 
Henry Lowood
Curator for History of Science&  Technology Collections;
   Film&  Media Collections
HRG, Green Library, 557 Escondido Mall
Stanford University Libraries, Stanford CA 94305-6004
650-723-4602; lowood at stanford.edu; http://www.stanford.edu/~lowood

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