Video Games Europe has published a position paper to the Stop Killing Games initiative. Many of its arguments are missing the point.
Recommended prior reading:
TL;DR
- There already are various licensing mechanisms in place in EU law which can easily be extended to also cover online video games.
- Making private servers available to the public is technically feasible.
- Making private servers available for private use does not prevent game publishers from exercising their copyrights (ie going after people who try to offer commercial servers once the game has shut down).
- VGE is strangely panicked for something which by the publishers own analysis has no commercial value worth pursuing.
- Even though preserving video games has not much bearing on copyright law, video game publishers are choosing to stop commercially exploiting online games well within a decade on average does beg the question why copyright is lifetime+70 years to begin with, if publishers tend to end support within 10 years usually.
Point-by-point refutation
Video games companies put significant investment into creating and developing the best
interactive entertainment and experience for their passionate player bases.
The right to decide how, when, and for how long to make an online video game services
available to players is vital in justifying this cost and fostering continued technical
innovation. As rightsholders and economic entities, video games companies must remain
free to decide when an online game is no longer commercially viable and to end continued
server support for that game. Imposing a legal obligation to continue server support indefinitely,
or to develop online video games in a specific technical manner that will allow permanent use,
will raise the costs and risks of developing such games.(emphasis mine)
Nobody wants to force game developers to continue making first-party offerings indefinitely. Allowing third parties to run the servers instead is all that’s being asked.
Making server software available to the general public does not incur any major additional development cost. Ideally, from a deployability standpoint, these servers would already be Docker containers, that is, self-contained pieces of software not relying on anything from its host system. This means that handing over the necessary files is as easy as sending something very similar to a ZIP file.
For cases where it isn’t, all that’s necessary would be a “software bill of materials”, that is, a list of all installed software on the system in addition to perhaps some hardware specs, config files and of course a copy of the server software itself.
It will have a chilling effect on game
design, and act as a disincentive to making such games available in Europe.
The good thing about the EU is that this is an idle threat – video game companies cannot afford to exclude the EU as a market. The times where you’d develop software with the intention that it’ll only be available in, say, Japan has completely seized to exist as a practice as digital downloads have taken over. Not selling a game in the EU is a non-starter commercially; the industry will adapt to whatever the EU demands. And if the EU demands the industry to stop killing games, the industry will stop doing it.
It is far from a trivial
modification or a simple addition to the game development phase. It would ignore material
reputational, safety, and security concerns.
I have addressed these concerns in the previous blogpost. These concerns are very solvable, both through actions fro the publisher and through legislative actions. Unless a game company can conclusively point to any actual material harm to their reputation, safety or security arising out of people using their own servers, I’m gonna call bullshit on this claim.
All video games, whether digital or physical copies, are licensed. As is the case with virtually all
digital works when consumers purchase online games, regardless of the country of sale, what
they acquire is a personal license to access and play the copy of the game they have purchased
in accordance with the game’s terms of service. The consumer does not acquire ownership of
that video game. These clear intellectual property rights underpin the entire market and enable
the strong investment that the industry has seen for decades. There is no legal uncertainty about
the status quo of video games.
There already is a mechanism in EU copyright law designed to facilitate preserving games. Article 6 and 8 of the EU copyright directive sets forth a licensing scheme for out-of-commerce works, and that cultural heritage institutions are allowed to make copies of things in their collection.
Additionally, Article 5.2.b of the InfoSoc directive allows for private copying (eg backups) of software.
Game publishers deny citizens their rights to these exceptions of copyright by using technological measures to render the game inaccessible.
Reduced or No Player Protection: Requiring games to run on private servers would result
in the inability for games companies to continue to protect players from illegal or harmful
content or conduct, as their moderation and player safety teams would no longer be
involved. In particular cheating could become rampant without proper enforcement.
Reporting systems designed to allow players to flag problematic content and behaviour
to games companies would no longer operate as intended or would have to be disabled
entirely. The absence of effective moderation systems would create a less safe
environment for consumers and may foster the proliferation of undesirable content while
simultaneously frustrating the ability for EU Digital Services Coordinators to act against
such content. This not only presents a safety risk for consumers but could also lead to
brand reputation issues for the video games company.
It remains unclear to me why VGE thinks that a game publisher might be liable for a service they don’t even provide. Incidentally, player safety typically drastically increases on private servers: Private servers almost always have a strong (but imperfect) moderation scheme in place, where the server owner simply kicks everyone on whim who causes trouble. This model works well on social media platforms like Discord and Reddit, which almost entirely rely on community moderators for Trust & Safety.
Increased Security Risks: Releasing game code or server binaries to facilitate the
creation of private servers operated by players could expose games companies and
consumers to bad actors, malware, data breaches, and DDOS attacks.
Ah, security-by-obscurity. So instead of locking your house, you leave the door wide open, but try to hide that fact by painting on more seemingly wide-open doors on the facade, so that thieves won’t be able to figure out how to get in as they keep running into the painted-on doors.
This is a silly approach to security. You could just lock the door. In gamedev terms, this means to have a security expert on board during the development process, and make the game difficult to hack, make the infrastructure difficult to DDoS, and so on. This is something the industry should be doing already anyway, and if they aren’t doing that to the servers where user data is stored, they are violating GDPR Article 5.f.
Significant Engineering and Architectural Challenges: Allowing players to run private
servers would present significant engineering and architectural challenges for many
games, due to the way in which such online features are integrated with other
proprietary systems and services required for the game. Creating a private-server
compatible version would be a prohibitive cost, in some cases years or decades after
the game’s initial release when only a small audience remains.
This needs a bit of context. If we take something like Team Fortress 2, there’s a number of systems involved:
- Game servers, which let you play the game
- Item servers, which tell your game (and the game servers) what items you are and aren’t allowed to use
- Authentication servers (Steam), which tell the other systems who you are.
- An achievement system to track your progress
- Server coordinators, which handle things like the join queue
- Potentially anti-cheat servers, which look at what’s happening on the game servers to determine whether or not you should be banned.
However, even as it stands here, it in fact is trivial to allow for a game to be preserved once shut down:
- The game server can just be distributed to the public.
- The item server can get replaced with a system that simply returns “yep, this player has access to all of the things” when asked. Or perhaps with a simple inventory system which the player then can go through and enable things themselves as it comes up.
- Authentication servers could be replaced by a UUID system of some sort.
- The achievement system could be removed.
- The server coordinator could be removed.
- The anti-cheat server could be removed.
With these changes, the game would absolutely remain playable, and the effort to make this a reality is probably measured in the order of days, perhaps weeks by a single developer, rather than the prohibitively expensive story VGE is attempting to tell here.
Addendum: it’s been pointed out to me that source games made it architecturally easier to pull this off; modern games tend to be less modularized than they were in the past. OK. But then:
- It is entirely possible for developers to build games like that going forward. We know it’s possible because there’s a plethora of games, all the way from Quake from yonks ago to Satisfactory more recently which allow for this. A good separation of concerns is very much a sensible option.
- For existing games, publishers also could be compelled to publish all dependencies. That will make getting a working server setup more annoying to create, but certainly less so than reverse engineering a black box. NB, this doesn’t mean that potential systems still in-use get open sourced. Usage of these systems would be strictly for cultural heritage preservation.
Negative impact on investment in games, jobs, growth and consumer choice:
Ensuring an online game can work without official server support, requires a significant
investment of engineering resources making it a very costly exercise for video games
companies. Many of the costs that games companies would incur in implementing an
end-of-life plan would have to be incurred towards the end of the commercial life of the
game, when it is no longer commercially viable to continue support. Requirements to
implement such plans could lead to less risk taking, fewer investment projects in
developing new games, and potentially fewer jobs. Ultimately, it could lead to increased
costs for consumers and less choice.
As outlined above, I highly doubt the act of providing private servers is that much of a challenge. If incurring the cost of implementing an end-of-life plan at the end of the game’s life is too difficult to calculate, maybe private server support should be an option up-front instead. After all, the games industry apparently can afford dumping out something like Concord with hundreds of millions invested, only to kill it off a few weeks later.
Also “less choice?” Let’s say a Company A publishes 3 games, and makes them available to play afterwards. Company B meanwhile publishes 7 games, but each time a new game is released, they kill off the previous game.
If company A dies, the consumer will have 3 games to play still.
If company B lives forever, the customer will exactly have access to 1 game at all times, but not necessarily the one they wanted to play.
If company B dies, the customer has exactly 0 games to play.
I may not be the best at math, but I’m pretty sure that both 0 and 1 are smaller than 3.
Reputational Harm: Allowing players to run private servers, with online interaction
possibilities could result in players using those games in ways that don’t align with the
games companies’ brand values, leading to a negative association with the brand, thereby
harming its reputation.
Companies cannot limit what their fans are. Maybe I find kpop fans and soccer fans obnoxious, and I look with some disdain towards the relevant kpop idols or soccer teams – but at the end of the day, it’s not really something the companies have much control over.
Erosion of Intellectual Property Rights: Mandating games companies to keep their
online games operable post-official support would undermine their rights and autonomy
in deciding how their intellectual property is utilised. There is a vital interest in maintaining
effective copyright protection, including protection against circumvention of
technologies that control access to copyrighted video game software, where such
circumvention is undertaken in circumstances that would lead to the unauthorised public
exploitation of games.
For one, “Effective copyright protection” systems tend to be removed from games after some time (typically only a few months), once everyone who was gonna buy the game has probably already bought it. For another, they tend to be bypassed after some time anyway.
For another – The point “unauthorised public exploitation of games” is moot, as the premise of this entire discussion is that the demand for the game has fallen to the extent that commercial exploitation no longer is possible. So only one of the following two statements can be true:
- There still is public interest in the game, which is possible to exploit commercially.
- There no longer is public interest in the game, which makes commercial exploitation not worthwhile.
If statement 1 is true for a game, the publisher would want to keep the game running. If statement 2 is true for a game, then the publisher should not need to care what anyone tries to do with it, since as far as they’re concerned, it’s dead.
But let’s say that someone comes along and makes a long-dead game somehow commercially viable again. Now all the publisher needs to do is open up the servers they’ve shut down previously! And even if all of the internal files are lost, well, good thing the server software has been published, so now the publisher can commercially exploit it just like everyone else can! Better still – the publisher also can still enforce their copyright on the person who is offering the game publicly despite still being under copyright protection!
The deck is already so stacked in favor of publishers on this issue, having them stop killing games will not affect their ability to enforce copyrights.
Competition from Community-Supported Versions: Such a requirement could lead to
community-supported versions of games competing with official versions, potentially
jeopardizing the financial investments of the video games companies. (continues)
This is the thing I mentioned in my previous blogpost. They won’t be making as much profit if people dare to play anything but the latest releases. But they’ll be fine, after all, literally the entire rest of the entertainment industry is able to continue functioning even with people being able to watch old DVD releases second-hand, or old Beatles vinyls.
(continued) This would lead to
confusion between trademarks, and the original trademark holder may be held
responsible for actions undertaken by a community supported version.
This is nonsense. It is completely unsupported by anything. Liability doesn’t work like this. If I go rob a bank and say that my name is Elon Musk, it doesn’t mean that Musk is now going to jail.
Forfeiture of Licensing and Reproduction Rights: Allowing consumers to create or run
modified copies of online games would necessitate games companies to either license
additional rights or refrain from enforcing them, effectively leading to a forfeiture of
control over these rights.
Again: There already is a mechanism in EU copyright law designed to facilitate preserving games. Article 6 and 8 of the EU copyright directive sets forth a licensing scheme for out-of-commerce works, and that cultural heritage institutions are allowed to make copies of things in their collection.
Additionally, Article 5.2.b of the InfoSoc directive allows for private copying of software.
Video game publishers would still be able to sue anyone people who provide access to the game in a commercial setting. The only thing that’d change due to the Stop Killing Games initiative is that now citizens and cultural heritage organizations would be able to continue use games which they have purchased.
Constraints from Third-Party IP: Games companies often utilize third-party software and
services, which may have licensing terms restricting their use to the commercial life of
the game or prohibiting sublicensing to players, thereby hindering the modification or
patching of games for private servers.In particular this could jeopardize and infringe the
copyright of the musical works and lead to legal action from these right holders on the
basis of unauthorised exploitation of their works.
Excellent point; let’s make this an exception to copyright law. That’s why we’re discussing all this anyway, right? To change the EU law.
Though again: There already is a mechanism in EU copyright law designed to facilitate preserving games. Article 6 and 8 of the EU copyright directive sets forth a licensing scheme for out-of-commerce works, and that cultural heritage institutions are allowed to make copies of things in their collection.
Additionally, Article 5.2.b of the InfoSoc directive allows for private copying of software.
Constraints from third party services: Games depend on third-party services such as
platforms on which the game is offered to the consumer. Releasing the code for those
services, which would be necessary should a legal requirement allow player communities
to run a game, may not be possible as this would potentially be an IP infringement.
Furthermore, game company’s servers are increasingly run on the cloud. If cloud servers
are discontinued, which sometimes happens, this necessitates either shutting down
older titles or creating costly workarounds. The latter may not always be possible.
And we’re back to the first point.
All of the above would also affect compliance with PEGI ratings. Where a game has a PEGI age
rating and offers multiplayer functionality, the games company is contractually bound by the PEGI
Code of Conduct to respect various obligations related to online safety and privacy. The inability to do so would expose the games company to legal uncertainty with respect to its contractual
obligations under the PEGI Code of Conduct.
The PEGI CoC of course is god-given and cannot be altered by anyone. For real though, have you asked PEGI about this? I feel like this should be relatively easy to resolve. I’ve pinged them and will let you know once I receive an answer.
For example, members regularly donate game copies and hardware to preservation organisations
and support museum exhibitions featuring games. Other video game companies have
undertaken the gigantic task of creating video games libraries to support the preservation of
games.However, the industry’s innovation and economic activity depends on strong copyright protection
for the software and other creative works that are its lifeblood, and preservation efforts should
not be confused with uses that could conflict with the normal exploitation of the work by the right
holder or unreasonably prejudice the legitimate interests of the author.
It doesn’t appear to me that the SKG initiative is directly after copyright protections. After all, the point of copyright law is to give the authors a time-limited monopoly to exploit their works before it is moved into the public domain. By destroying the works well within the protection period, game publishers deny citizens the opportunity to enjoy to enjoy these works once they enter the public domain sometime in the 2100s.
If anything, the decision of game publishers to make a game unplayable after mere decades is proof that the games industry does not require copyright terms to be as long as they are, and that the useful protection period really only needs to be 10-20 years, as the vast majority of games no longer are commercially relevant after that time.
Again, I don’t think this is what SKG is after, but since VGE brought it up, it’s probably worth pointing out.
Leo Wattenberg 