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 DRM software, out-of-date hardware, and licensing issues will make it extremely difficult for historians to study these titles – especially once servers providing access shut down.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”.