The DMCA and Censorship

by on June 21, 2007 · 10 comments

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.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I don’t think this is really a free speech issue. I fully agree that it is not censorship for the Wall Street Journal not to publish a letter to the editor. However, in this situation, the issue raised relates to how much control a hardware manufacturer should have after the product is sold to the consumer. I would advocate that the manufacturer upon the sale of the product cedes virtually all control to the consumer. This means that third parties should have a right to be able to produce products that work the hardware device in question.

    To use the automobile analogy, computer technology now allows Ford to design a car that would fail to operate if it detected a non-authorized Ford part. Clearly this goes beyond the realm of reason.

    PS: One of the ploys to deprive the consumer of rights is that the product is “licensed” not “sold”. I don’t believe this ludicrous slight-of-hand has any validity. Hopefully the courts will see through this absurdity.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I don’t think this is really a free speech issue. I fully agree that it is not censorship for the Wall Street Journal not to publish a letter to the editor. However, in this situation, the issue raised relates to how much control a hardware manufacturer should have after the product is sold to the consumer. I would advocate that the manufacturer upon the sale of the product cedes virtually all control to the consumer. This means that third parties should have a right to be able to produce products that work the hardware device in question.

    To use the automobile analogy, computer technology now allows Ford to design a car that would fail to operate if it detected a non-authorized Ford part. Clearly this goes beyond the realm of reason.

    PS: One of the ploys to deprive the consumer of rights is that the product is “licensed” not “sold”. I don’t believe this ludicrous slight-of-hand has any validity. Hopefully the courts will see through this absurdity.

  • Brian Moore

    What I don’t get is why console mfg wants to restrict the functionality of its platform. Sure, you can say “we don’t support this” and just have it “work” anyway, just like a PC.

    Dell and Gateway don’t care when someone releases a controversial computer game, because they know that no one is going to blame them. Use whatever license/contract computers have.

  • Brian Moore

    What I don’t get is why console mfg wants to restrict the functionality of its platform. Sure, you can say “we don’t support this” and just have it “work” anyway, just like a PC.

    Dell and Gateway don’t care when someone releases a controversial computer game, because they know that no one is going to blame them. Use whatever license/contract computers have.

  • http://linuxworld.com/community/ Don Marti

    Brian, there is a good business model reason for this. Sell the console at a loss, but charge game publishers to sign the games. The number one thing to realize about DRM/DMCA is that, at least in think tank white papers, it facilitates all kinds of absolutely wonderful-sounding business ideas. Give someone a free printer, charge for DRM-restricted cartridges, sell an exploding copy of a movie, whatever.

  • http://linuxworld.com/community/ Don Marti

    Brian, there is a good business model reason for this. Sell the console at a loss, but charge game publishers to sign the games. The number one thing to realize about DRM/DMCA is that, at least in think tank white papers, it facilitates all kinds of absolutely wonderful-sounding business ideas. Give someone a free printer, charge for DRM-restricted cartridges, sell an exploding copy of a movie, whatever.

  • Dan

    Unfortunately for the console companies, the DMCA only restricts companies from cracking the codes if those cracks are for the specific purpose of copyright infringement. A game company still retains the right to crack those codes to allow their game to play normally because no copyright infringement will occur.

  • Dan

    Unfortunately for the console companies, the DMCA only restricts companies from cracking the codes if those cracks are for the specific purpose of copyright infringement. A game company still retains the right to crack those codes to allow their game to play normally because no copyright infringement will occur.

  • http://www.pineight.com/ Damian Yerrick

    the DMCA only restricts companies from cracking the codes if those cracks are for the specific purpose of copyright infringement.

    Citation please. I seem to remember reading in Universal v. Reimerdes that defenses to copyright infringement are no defense to circumvention.

  • http://www.pineight.com/ Damian Yerrick

    the DMCA only restricts companies from cracking the codes if those cracks are for the specific purpose of copyright infringement.

    Citation please. I seem to remember reading in Universal v. Reimerdes that defenses to copyright infringement are no defense to circumvention.

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