Slashdot has a story about how the ESRB has given Manhunt 2 an AO rating, which means that they won’t be allowed to release it for the major console platforms.
A Slashdot reader asks why they couldn’t just release the game without Nintendo, Sony, and Microsofts’ permission. After all, the Accolade decision held that reverse-engineering a video game console to produce compatible games was fair use under copyright law. So in the 1990s, competitors had the option of producing games for a console without the console manufacturer’s permission.
But this comment puts his finger on what has changed:
Legally they can’t stop you. You’re welcome to release your game. The trick is, it will only run on modded hardware, same as any other homebrew game. They’re not preventing you from *releasing* it, it just won’t run on most hardware without the magical cryptographic signature that licensed games get. So, they can’t sue you to stop you from releasing it. But they don’t need to, because it won’t work anyway. And if you manage to break the cryptographic signature and release it in a manner that actually works, well, that’s where the DMCA comes into play. Nintendo/Sony/et al. have all their bases covered.
It’s a basic tenet of libertarian theory that limitations on speech by private party isn’t censorship; the Wall Street Journal isn’t censoring me by refusing to run my letter to the editor. But I think it becomes less clear-cut if the law gives a company the legal power to prohibit consumers from playing the games of their choice on a console even after they purchased it. That’s obviously not at problematic as having a government agency make the decision for all consoles simultaneously. But if we’re concerned with liberty, I think we should be trying to maximize consumers freedom to do as they please with their lawfully acquired property in the privacy of their own homes. Reverse-engineering can be an important safety valve for free speech if the companies that control our media devices impose too many unreasonable restrictions. Nintendo should never be forced to sell, support, or endorse any video game. But if consumers want to go to the trouble of acquiring a game without Nintendo’s help or approval, I don’t see what possible rationale there is for the law to stand in his way.