There was a bit of news last Friday when the Library of Congress announced that they would allow an exception to the Digital Millennium Copyright Act so that institutions interesting in preserving online games, MMOs and the like, could do so.
An exception had been previously granted for stand alone video games no longer published or otherwise available, so this was something of an expansion of that initial ruling. The Federal Register document is here for your perusal.
The document covers several rulings. The one you are looking for is labeled as section 8, but is listed out between sections 5 and 7, so it was probably meant to be section 6 as there is another section 8, concerning 3D printing, after section 7. Maybe this was an error… or maybe I just don’t understand how government documentation works.
This decision was greeted with almost universal acclaim in the niche genre that is fans of dead MMOs. The Museum of Digital Art and Entertainment (The MADE for short or The Video Game Museum colloquially) over in Oakland, about a 40 minute drive from my home, was particularly effusive. They were in the fight to make this happen, so were there to cheer once the ruling was announced. They tweeted out a couple of messages on Twitter that got a frenzy of support over in the comments at Massively OP, this one especially:
I am going to quote that tweet here, just in case it spontaneously combusts out of sheer naivety:
Hey Twitter fans: please go track down people who could legally get us Star Wars Galaxy’s server code, and City of Heroes server code. If they agree to hand over the server code, we can bring those games back online legally.
That note contains the seeds of the problem being faced here. If you take some time to leaf through the document I linked at the above, you might have run into a paragraph opening with this sentence:
The Acting Register found that the record supported granting an expansion in the relatively discrete circumstances where a preservation institution legally possesses a copy of a video game’s server code and the game’s local code.
Therein lies the rub. To be within the law, and thus legally protected, a preservation institution like The MADE needs to obtain a copy of the server software legally. So far as I can tell, the only way to do this is to get a copy directly from the companies who hold the rights to these games, and that seems an impractical and unlikely scenario for several reasons.
First, there is the question as to what sort of infrastructure such a server might require.
Yes, people who put together emulators of these servers do so on the cheap, using whatever is to hand, so you might think this is a non-issue. But the official server software wasn’t designed to run on your desktop machine. This isn’t an automatic pass. This could be a problem because things as simple as the operating system and patch version required to the database connectivity expected to be in place. The server software might not run as provided without the ecosystem it was made to run with.
The MADE likes to point out that they managed to get Habitat up and running, but that was not only a game from a simpler time, but they were given the source code to work with. I cannot see many MMORPGs doing that for reasons covered below. Still, at least this is a technical issue, and enough time and effort could garner a solution.
Then there is figuring out who actually has the software and what shape it is in.
Let’s take Star Wars Galaxies as an example. That shut down in mid-December 2011, almost seven years ago. At that point it was run by Sony Online Entertainment, one small cog in the giant machine that is Sony.
Time to settle up with Jaba again
A little over three years after that SOE was bought and became Daybreak Game Company. One might assume that all SOE games, past and current, went with that deal. But I don’t know if that was actually so. Given that SWG was a licensed IP, it might have been too complicated, too expensive, or simply not possible or desirable to let Daybreak have that. It could be stowed away still with Sony.
And, once we figure out who has it, we have to see if the software has been archived in a way that it can still be accessed. The server software isn’t like the client, existing in the wild on hundreds of thousands of install disks. This is likely tightly held, produce on demand software. Somebody might need to run the build system to generate a copy.
Let me tell you a story about that sort of thing.
Midway through the first decade of the century a company I used to work for once had a formerly famous consumer film company call up and ask for a patch for the server software they bought from us nearly a decade back. It was on IBM OS/2 and we had long since switched to Windows server. But that was fine, we had kept the OS/2 build system machines in the lab. Only when somebody decided to power the system on the drive on the main machine wouldn’t spin up. And while we had archival backups stored off site, there wasn’t anybody around who could re-create the build system. And that was all before we had to figure out the problem that company was having, update the code, and run a build.
Since the company calling us wasn’t current on their maintenance contract… we were surprised they were still running our software… we declined to put in the effort. We probably could of done it, but the work required was not trivial. Even with the company in question willing to pay us, we had more lucrative avenues to pursue. Software development is as much choosing what to focus on as anything, since there are always more plans and ideas than there is time.
If we weren’t going to do it for money, we certainly weren’t going to do it for free, which is what organizations like The MADE will expect. And no company is going to let outsiders troll through their company to look for such software, so finding it relies on a current insider getting permission from the company and using their own time to find things. This isn’t impossible, but the candidates able to perform this task are probably few.
And, finally, there is the question who can legally provide the server software.
The above are both solvable problems, things that could be made to happen if the right people were to volunteer some time and effort. Getting the right people to green light this sort of project though, that feels like the highest hurdle of all.
I am going to go ahead and declare Star Wars Galaxies lost to any preservation effort for the foreseeable future right up front based on this. At a minimum you need Disney, who holds the rights to the IP, to go along with this, and I cannot see that happening. Mickey Mouse doesn’t even get out of bed unless he’s getting paid.
So let’s look at City of Heroes instead. This is easier. NCsoft owns all the rights, so there is no problem dealing with IP problems. There should be no issue here, right?
The final plea
No server software stands alone. Even if the previous problems can be brushed aside, it is very likely that Cryptic, in developing City of Heroes, licensed third party libraries, utilities, and other assets in order to create the game. That licensing likely doesn’t allow NCsoft to give the server software out, even for a good cause.
This, by the way, is part of the answer to every question about why companies don’t open source their games when they shut them down. They cannot if they don’t own all the code.
In order to cover themselves, NCsoft would have to run down every third party aspect of the software and get the permission of the licensing entity. My gut says that NCsoft isn’t going to do this and, if they did, that getting every single third party on board would not be easy.
But if you can get past all of that, then you can have an MMORPG in your museum.
And I don’t even want to delve into the question of which version of a game ought to be preserved. The answer to that will only make people angry since it likely won’t be the launch version or the version from what you might believe to be the golden era of the game. It will most likely be the final version available from the build system.
All of that ought to be enough to make you say “screw it” and just start working on an emulator. That has to be easier, right? You can do what you want with that. Then you can put it up in your museum.
Well, there is a whole paragraph devoted to that in the ruling.
The Acting Register did not, however, recommend an exemption to allow for instances where the preservation institution lacks lawful possession of the server software. She found the record insufficient to support a finding that the recreation of video game server software as described by proponents is likely to be a fair use. A number of scenarios described by proponents do not involve preserving server software that is already in an institution’s collections, but instead appear to involve something more akin to reconstructing the remote server. She found that this activity distinguishes proponents’ request from the preservation activity at issue in the case law upon which they relied. Moreover, she noted, the reconstruction of a work implicates copyright owners’ exclusive right to prepare derivative works.
That sums up pretty much as, “No, you may not have cheezeburger.” Recreating is not preserving. You either get the real deal or you get nothing at all.
And so it goes. The door has been opened ever so slightly for the preservation of MMOs, but there are still many problems in the way.
Finally I want to call out what I consider a disingenuous to the point of being nearly deceptive part of the tweet above from The MADE. This phrasing irks me greatly:
…we can bring those games back online legally
Without the necessary context, always a problem on Twitter, one might assume that people will be able to fire up their clients and play their favorite shut down MMO if only The MADE can get the server code. However, this is covered in the document linked at the top as well:
Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, that do not require access to an external computer server for gameplay, and that are no longer reasonably available in the commercial marketplace, solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.
The emphasis is my own.
So no, should any of this come to pass, you are not suddenly going to be able to play City of Heroes or Star Wars Galaxies or any other closed MMO. This whole thing isn’t being done just so you can play a video game. Unless you’re willing to schlep on over to Oakland to visit The MADE in person, you won’t be able to see what has been preserved.
And even then, I wonder what a visitor will be allowed to do. MMOs are strange beasts. They aren’t like Donkey Kong with discreet interaction parameters and a “Game Over” state after which everything starts again fresh. MMOs, at least the ones mentioned above, are MMORPGs, with an emphasis on the RPG part. You go into the world and play a role, interact with things, accumulate items and wealth. A story unfolds before you as you progress, and it doesn’t reset when you put down the controller and walk away.
How will a place like The MADE handle this sort of game?
Do you let every random person who walks in create a new character? Do you have some template characters available for people to wander around with? Do you let people wander around the world and die or do things that irrevocably change the nature of a character’s position in the world? Do you store progress? Do you wipe progress every night?
Probably the best case, within the law, scenario here is that a place like The MADE will get software that will let them setup a closed environment in their facility where the general public will get to see, maybe poke at, but probably not play in any depth, certain MMOs. The only people likely allowed greater access will be press writing articles or academics doing research… and the occasional big donor or volunteer who will get to make a character and play. The rest of us will just have to feel better that something has been preserved and move on with our lives.
Which is fine. I can live with that.
But I suspect that many people expect a lot more out of these efforts.
Addendum: Endgame Viable used a couple comments I made on Twitter in his post on this. This post is essentially an expansion by a couple thousand words on those two tweets.
Addendum 2: Ars Technica has a write up on this as well.
The Ancient Gaming Noob 