by Jordan Demo
Like many young kids who grew up playing video games, I can recall the excitement of going to the store to wait in line for hours just to buy a new game that was set to be released at midnight. It’s amazing how things have changed in the last ten years. Long gone are the midnight waits for games at the store. Now, computer games have primarily become digitized, which means you can create an account on a platform, such as Steam, Uplay, or Origin; purchase a digital copy of the game; and download it directly onto your computer the second it is released. The digitization of video games has created an ease of access for consumers. However, it has also sparked an ongoing debate about how the intellectual properties of digital games are protected by Digital Rights Management (DRM).
DRM is an approach taken by the gaming industry to protect its digital media. This protection occurs at the coding level, where code is embedded to limit copying of the game, the number of computers the game can be installed on, or the number of accounts that can be associated with the game. The basic rationale behind gaming companies using DRM in their games is to combat and prevent piracy.
As it pertains to the legality of DRM, the anti-circumvention provision in the Digital Millennium Copyright Act (DMCA) provides protection for developers who incorporate DRM into their games and outlines some of the technological barriers for those wishing to copy different forms of intellectual property. One clause within this provision pertains to the circumvention of access controls. In essence, this means that, if some form of technology is in place to restrict or control access to the work, then it would be illegal for an individual to circumvent or bypass the technology. If a user were to be caught violating the DMCA by circumventing DRM, they could face harsh penalties.
The widespread incorporation of DRM into computer games has been met with continuous criticism. Recently there have been complaints of the overuse of DRM in particular games where developers are using new forms of DRM, such as Denuvo. Gamers are complaining that this DRM is hampering the performance of games. Moreover, some DRMs require gamers to be continuously online for “check-ins,” and other developers are getting creative in using malware as a form of DRM, where only genuine copies of the game would remove the malware during installation. While studies on DRM affecting performance are thus far inconclusive, the question still remains as to whether this is a necessary practice. In other words, is the overly stringent use of DRM really that effective against piracy, or is it actually encouraging it? From a traditional gaming perspective, the DMCA anti-circumvention provision limits certain aspects of digital gaming, such as sharing games with your friends, reselling old games on the secondary market, and requiring that a user always be connected to the internet in order to play even a single player game. Any attempt to circumvent the DRM to do any of these things places you in violation of the DMCA.
While there are genuine concerns about using DRM, developers argue that there is a justification for doing so. As previously mentioned, piracy is of grave concern, as many take the attitude of “well, these big companies already make a lot of money, so I will just illegally download a cracked DRM version of the game.” However, in computer gaming there are many indie or small game developers who can be negatively impacted by piracy, thus there seems to be a logical reason for these types of developers to use DRM. The problem seems to lie in the fact that digital forms of intellectual property are easier to duplicate and distribute than physical copies of games. Moreover, there are software tools being developed to circumvent the DRM in games, and which violate the anti-circumvention provision. But many of these individuals developing the software or distributing the games freely online are outside the jurisdiction or resources of gaming companies and law enforcement officials. Therefore, this creates a desire for developers to use more sophisticated DRM protection, such as Denuvo.
Overall, it is likely that a practicable solution lies in a balance between using some type of DRM protection, but not so much protection that it places an ease-of-access burden on gamers. It will be interesting to see how this debate plays out in the near future, as DRM is getting more sophisticated and there is more pushback from the gaming community.
*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.