DRM could kill game emulators and erase the history of an artform

[bsaambl]

Video game company Atlus just killed the Patreon page for open source Playstation 3 emulator RPCS3, by invoking section 1201 of the DMCA, which makes it a felony punishable by 5 years in prison and a $500,000 fine to bypass DRM.

Atlus's theory -- which is hard to discern, thanks to a legal word-salad the company has thrown up as chaff in its wake -- is that because it's possible to use RPCS3 to play PS3 games that you have pirated rather than paid for, and since Atlus once made a PS3 game, it gets to decide whether anyone, anywhere can make or use a tool that lets them play their old games after the hardware they came with was retired.

Emulation is a critical part of software development. Open up a terminal on your modern computer and chances are it'll say "tty" at the top. That stands for "teletype," a technology whose origins date to the early 1900s, that early computers interfaced with. Over the years, as teletypes turned into screens and then into windows, the software interfaces relied on layers of emulation and abstraction to continue to talk to them.

It's impossible to overstate the importance of emulation to games development. Prior to the advent of emulators, games were the only art-form without a past: unless developers had the foresight (and care) to preserve successive generations of antiquated hardware (a process called pickling), they literally had no way to refer to the works of art that had influenced their own creations, the entirety of games that had gone before them.

The emulator gave games a history. Guaranteed: every Atlus developer learned about the history of their artform with emulation. The idea that anyone who's ever shipped a game for a platform gets to decide whether it continues to be part of the discourse, the living history of the medium, is grotesque. It's like the idea that a single sculptor would get to decide whether marbles were preserved for the ages or smashed into rubble when they were through with them.

And that's where the other part of the DMCA comes into play, the digital locks anti-circumvention part, known as DMCA 1201. This is the part of copyright law that (bizarrely) makes it a violation of copyright if you "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." In short, violating 1201 means doing something to circumvent DRM. Now, we've spent many blog posts explaining why this is dumb, and how there are tons of legitimate, non-infringing reasons to get around DRM, but 1201 more or less ignores most of that.

Of course, there is no notice-and-takedown process for 1201 violations. But, increasingly, we've seen companies assuming that if they see what they believe is a 1201 violation, they can file a 512-like notice, and platforms feel obligated to treat it similar to a 512 notice -- which means removing the offending material to avoid the possibility of liability. It's not at all clear if this is what the law requires.

It's also not at all clear if the Patreon page at issue here violates 1201. Going on the text of Atlus' blog post, it would certainly apear that they're trying to claim that the Patreon page is a form of "offering to the public" a "technology" that is porduced for "circumventing" the DRM on Persona 5. I think this is a huge stretch to read DMCA 1201 this way -- since it requires the product to be primarily designed for such a purpose, to have "limited commercially significant purpose or use other than" circumvention, or is marketed in a way that advertises the circumvention capabilities. Perhaps Atlus is arguing the latter point. That because the makers of RPCS3 have publicly stated that you can play Persona 5 on it, that's advertising the circumvention capabilities (still feels like a big stretch).