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This seems like it's only going to get worse many games need online services to function at all. Super Mario Maker as mentioned in the post is one of them, but

This seems like it's only going to get worse many games need online services to function at all. Super Mario Maker as mentioned in the post is one of them, but there are countless others on 3DS and PC that won't function properly. Ideally it would be possible to archive the games (like ROMs or what the Internet Archive does for websites and files) and also the server / database so that the games could be playable in the future, but I doubt that Nintendo or any larger publisher would do that. I wonder if there's a solution for this in the short term or if these games and their data would be lost forever.

acdha 3y ago
I wish there was some way to tie it to copyright where if you want to lock the rights up, you have to provide the game in a playable form at a reasonable price. I’ve seen proposals which would implement that as a kind orphan works tax with a threshold so a small indie game wouldn’t be expected to provide unlimited support.
- Racing0461 3y ago
  > tie it to copyright where if you want to lock the rights up, you have to provide the game in a playable form this or they lose the copyright.
- henriquez 3y ago
  The DMCA allows reverse engineering of copy-protected code for abandonware. As a copyright holder you’re not necessarily obligated to maintain working game services, but if you sell a multiplayer game and abandon it, it’s basically free rein for others to make it work again.
  - acdha 3y ago
    > if you sell a multiplayer game and abandon it, it’s basically free rein for others to make it work again. The more functionality there is on the server (common for anti-piracy/cheating) the less likely that is to happen. I’d like to see that change, reflecting that the idea behind things like the DMCS preservation exceptions and copyright expiring is contributing to the public commons and that’s different for running code than earlier forms of media.
  - boppo1 3y ago
    So we can play ut24k online again? Someone could setup a master server list?
    - semiquaver 3y ago
      No. The exemption only applies to circumventing access controls related to authentication servers that gate access to single player modes. Duplicating online multiplayer functionality (which was proposed and rejected because of industry opposition) is not in scope of the exemption so would not be protected against liability. https://www.eff.org/deeplinks/2015/10/victory-users-librarian-congress-renews-and-expands-protections-fair-uses https://www.eff.org/deeplinks/2015/10/victory-users-libraria...
  - semiquaver 3y ago
    To clarify, the DMCA does no such thing. The exemptions you refer to are the result of the Librarian of Congress exercising a statutory “fail-safe” role to specify circumstances that the (otherwise very broad) anti-circumvention provisions in the DMCA will be construed not to apply to. https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pdf https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pd...
    - EvanAnderson 3y ago
      It's also important to note that exemptions granted under this mechanism expire after 3 years unless renewed. When the exemption expires the exempted activity becomes an infringing activity again.
    - kmeisthax 3y ago
      Furthermore, these exemptions only cover unlocking DRM - not providing the unlock tools, which is illegal in all circumstances. Yes, you are really expected to reverse-engineer and decrypt everything yourself. DMCA 1201 is a really fucking stupid law.
- advael 3y ago
  A tax small enough to not harm indie publishers is almost tautologically unlikely to affect big publishers at all. The incentives created by fines and taxes are greatly overestimated. For something like this to work, it needs to be achievable without the continued cooperation or even existence of the original business
  - nine_k 3y ago
    To the opposite, the tax should kick in if the operation is large enough. If your revenue from the game exceeds $10M, you should do some minimal continuity work. If it exceeds $100M, you should do much more serious continuity work.
    - advael 3y ago
      So you'd like to incentivise more obfuscation of revenue to boot? I think an effective remedy for this kind of situation can't just be fiscal, we need requirements to publish adequate technical specifications and strong IP carveouts to make it likely to move the needle. Forcing companies to maintain continuous support is a non-starter. We should instead focus on enabling unofficial support from outside the companies, and remove legal threats from those who choose to do so
      - nine_k 3y ago
        Obfuscation of revenue is a really bad idea, all the way to a federal criminal investigation. The idea is that the continuity requirements should not be onerous, given the revenue, say, less than 1% of it, "a good problem to have". Publishing a reasonable spec would be a part of that.
        noirbot 3y ago
        Pretty sure that hasn't stopped Hollywood accounting for the last century, and I see no reason why EA can't pull off the same things that Warner Brothers has been doing.
- r3trohack3r 3y ago
  I don’t know why this would be a tax? If you’re going to go down this path, why wouldn’t you just require that the title needs to be purchasable on a primary market and usable on hardware/software that is currently supported in order for a copyright to be enforceable. If I can’t purchase and enjoy a copyrighted work legally, the copyright is unenforceable. In response to sibling comments, I don’t know why you’d do a carve out for small and indie game studios. If you’re not actively offering your copyrighted content for sale in a primary market, it shouldn’t matter whether you are a big studio are a small studio. Let society take over archiving and sharing your work.
  - Affric 3y ago
    Artificial scarcity is a scourge but I think for some works, say where you only want them to be available in a specific time and place, then perhaps as the author of that work you have a right to enforce that, at least to the extent that others shouldn’t be able to say record a live performance and then sell it with some kind of rights later. All that is to say I think it’s slightly more complex than what can be contained in a single HN comment but agree with you in principle.
    - int_19h 3y ago
      This sounds like a feature rather than a bug to me, to be honest. If there's an official recording of said live public performance that is available, then copyright holds and third parties wouldn't be able to record and redistribute. OTOH if there is no official recording available, then I would argue that it is in the public interest to allow third party recordings to legally circulate, since otherwise that particular performance would just be lost altogether. If artists truly want their performance to be "in the moment" with no way for anyone else to see it, they can arrange for private performances where the audience can be bound by a contract above and beyond basic copyright; but I don't think we should be optimizing for this case.
      - Affric 3y ago
        I don’t disagree. I am attempting to say a person shouldn’t be able to record someone else’s performance and distribute it for profit or post it on a streaming service and profit from the ads.
pard68 3y ago
The website that posted this post (Pretendo) is doing just this, sort of. They are working to RE the 3DS and WiiU online capabilities.
- RajT88 3y ago
  Seeing the progress of Xlink Kai I have faith they will succeed. I hope one day there will be a precedent set for companies to open source the servers they are shutting down.
dangus 3y ago
I disagree that it will inevitably get worse, with the exception of games that explicitly games as a service. As the article points out, this whole system was basically a result of the infancy of online game services, especially for Nintendo. It's a quirky result of an architecture that is much less centralized than modern console game services. If you ask me, it's very unlikely that Nintendo will ever shut down the Switch eShop, because I don't think the Switch eShop will be replaced when its successor launches. It will be much more like the PS4 to PS5 transition where your account information and digital library stays the same. (By the way, the solution you are talking about is what the blog authors are working on)
- daydream 3y ago
  I made a top-level comment before I saw yours wondering how they’ll handle Switch online services. And I think you’re right. If they have any sense, and it generally seems like Nintendo does, they’ll keep the Switch eshop running indefinitely. Hopefully they do the same with the other backend services supporting the Switch, but that is more questionable. They really should though.
prmoustache 3y ago
> Super Mario Maker What happens concretely if you start Super Mario Maker while the 3DS console is offline? Can't you play it on a plane?

acdha 3y ago

I wish there was some way to tie it to copyright where if you want to lock the rights up, you have to provide the game in a playable form at a reasonable price. I’ve seen proposals which would implement that as a kind orphan works tax with a threshold so a small indie game wouldn’t be expected to provide unlimited support.

Racing0461 3y ago
> tie it to copyright where if you want to lock the rights up, you have to provide the game in a playable form this or they lose the copyright.
henriquez 3y ago
The DMCA allows reverse engineering of copy-protected code for abandonware. As a copyright holder you’re not necessarily obligated to maintain working game services, but if you sell a multiplayer game and abandon it, it’s basically free rein for others to make it work again.
- acdha 3y ago
  > if you sell a multiplayer game and abandon it, it’s basically free rein for others to make it work again. The more functionality there is on the server (common for anti-piracy/cheating) the less likely that is to happen. I’d like to see that change, reflecting that the idea behind things like the DMCS preservation exceptions and copyright expiring is contributing to the public commons and that’s different for running code than earlier forms of media.
- boppo1 3y ago
  So we can play ut24k online again? Someone could setup a master server list?
  - semiquaver 3y ago
    No. The exemption only applies to circumventing access controls related to authentication servers that gate access to single player modes. Duplicating online multiplayer functionality (which was proposed and rejected because of industry opposition) is not in scope of the exemption so would not be protected against liability. https://www.eff.org/deeplinks/2015/10/victory-users-librarian-congress-renews-and-expands-protections-fair-uses https://www.eff.org/deeplinks/2015/10/victory-users-libraria...
- semiquaver 3y ago
  To clarify, the DMCA does no such thing. The exemptions you refer to are the result of the Librarian of Congress exercising a statutory “fail-safe” role to specify circumstances that the (otherwise very broad) anti-circumvention provisions in the DMCA will be construed not to apply to. https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pdf https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pd...
  - EvanAnderson 3y ago
    It's also important to note that exemptions granted under this mechanism expire after 3 years unless renewed. When the exemption expires the exempted activity becomes an infringing activity again.
  - kmeisthax 3y ago
    Furthermore, these exemptions only cover unlocking DRM - not providing the unlock tools, which is illegal in all circumstances. Yes, you are really expected to reverse-engineer and decrypt everything yourself. DMCA 1201 is a really fucking stupid law.
advael 3y ago
A tax small enough to not harm indie publishers is almost tautologically unlikely to affect big publishers at all. The incentives created by fines and taxes are greatly overestimated. For something like this to work, it needs to be achievable without the continued cooperation or even existence of the original business
- nine_k 3y ago
  To the opposite, the tax should kick in if the operation is large enough. If your revenue from the game exceeds $10M, you should do some minimal continuity work. If it exceeds $100M, you should do much more serious continuity work.
  - advael 3y ago
    So you'd like to incentivise more obfuscation of revenue to boot? I think an effective remedy for this kind of situation can't just be fiscal, we need requirements to publish adequate technical specifications and strong IP carveouts to make it likely to move the needle. Forcing companies to maintain continuous support is a non-starter. We should instead focus on enabling unofficial support from outside the companies, and remove legal threats from those who choose to do so
    - nine_k 3y ago
      Obfuscation of revenue is a really bad idea, all the way to a federal criminal investigation. The idea is that the continuity requirements should not be onerous, given the revenue, say, less than 1% of it, "a good problem to have". Publishing a reasonable spec would be a part of that.
      - noirbot 3y ago
        Pretty sure that hasn't stopped Hollywood accounting for the last century, and I see no reason why EA can't pull off the same things that Warner Brothers has been doing.
r3trohack3r 3y ago
I don’t know why this would be a tax? If you’re going to go down this path, why wouldn’t you just require that the title needs to be purchasable on a primary market and usable on hardware/software that is currently supported in order for a copyright to be enforceable. If I can’t purchase and enjoy a copyrighted work legally, the copyright is unenforceable. In response to sibling comments, I don’t know why you’d do a carve out for small and indie game studios. If you’re not actively offering your copyrighted content for sale in a primary market, it shouldn’t matter whether you are a big studio are a small studio. Let society take over archiving and sharing your work.
- Affric 3y ago
  Artificial scarcity is a scourge but I think for some works, say where you only want them to be available in a specific time and place, then perhaps as the author of that work you have a right to enforce that, at least to the extent that others shouldn’t be able to say record a live performance and then sell it with some kind of rights later. All that is to say I think it’s slightly more complex than what can be contained in a single HN comment but agree with you in principle.
  - int_19h 3y ago
    This sounds like a feature rather than a bug to me, to be honest. If there's an official recording of said live public performance that is available, then copyright holds and third parties wouldn't be able to record and redistribute. OTOH if there is no official recording available, then I would argue that it is in the public interest to allow third party recordings to legally circulate, since otherwise that particular performance would just be lost altogether. If artists truly want their performance to be "in the moment" with no way for anyone else to see it, they can arrange for private performances where the audience can be bound by a contract above and beyond basic copyright; but I don't think we should be optimizing for this case.
    - Affric 3y ago
      I don’t disagree. I am attempting to say a person shouldn’t be able to record someone else’s performance and distribute it for profit or post it on a streaming service and profit from the ads.

pard68 3y ago

The website that posted this post (Pretendo) is doing just this, sort of. They are working to RE the 3DS and WiiU online capabilities.

RajT88 3y ago
Seeing the progress of Xlink Kai I have faith they will succeed. I hope one day there will be a precedent set for companies to open source the servers they are shutting down.

dangus 3y ago

I disagree that it will inevitably get worse, with the exception of games that explicitly games as a service. As the article points out, this whole system was basically a result of the infancy of online game services, especially for Nintendo. It's a quirky result of an architecture that is much less centralized than modern console game services. If you ask me, it's very unlikely that Nintendo will ever shut down the Switch eShop, because I don't think the Switch eShop will be replaced when its successor launches. It will be much more like the PS4 to PS5 transition where your account information and digital library stays the same. (By the way, the solution you are talking about is what the blog authors are working on)

daydream 3y ago
I made a top-level comment before I saw yours wondering how they’ll handle Switch online services. And I think you’re right. If they have any sense, and it generally seems like Nintendo does, they’ll keep the Switch eshop running indefinitely. Hopefully they do the same with the other backend services supporting the Switch, but that is more questionable. They really should though.

prmoustache 3y ago

> Super Mario Maker What happens concretely if you start Super Mario Maker while the 3DS console is offline? Can't you play it on a plane?