Game and Watch – by “Bryan B”

Back in 2007, a forum known as Something Awful popularized a form of video game walkthrough known as a “Let’s Play,” termed so because of the subforum they were hosted on. Today, you can find a plethora of these types of videos on sites like YouTube  and dedicated sites like the Let’s Play Archive.

(If you still don’t understand what might constitute a “Let’s Play” video, watch one of my favorites to provide some context for this discussion)

On the surface, these kinds of videos don’t seem any different than what you might be doing when you’re at a friend’s house watching them play a copy of the game they own. “Let’s Play” videos also don’t appear to differ much more than the format in the cult classic Mystery Science Theater 3000.

Some people just don't know when to shut up.

But they aren’t exactly similar, or at least, they aren’t treated similarly. The potential problem with “Let’s Play” videos lies in the way most of these videos are made.  Although not always explicitly stated, many “Let’s Play” videos implicitly suggest the use of an emulator and ROM (hint: the ability to use and load save states is typical of emulators). For those who don’t know, video game emulators are programs that allow a computer to mimic a video game console, while ROMs are the copied data from a video game cartridge or disc. Essentially, emulators and ROMs are programs that allow you to turn your computers (or even now, smartphones) into a NES, PS2, and even now, a Wii.

Why anyone would want to torture themselves by trying to beat Contra again is beyond me.

The advent of video game emulators and ROMs on the internet has, however, worried some video game publishers. Moreover,  many websites hold that ROMs are inherently illegal, even if you actually own the physical game. The basic argument is that emulators and ROMs, by lacking anti-circumvention measures present in video-game consoles and removing the need to actually own the hardware and software, promote piracy. It is difficult to play pirated games on normal video game consoles without the aid of extra software or modification to the hardware, which is currently illegal. Unforunately, while “Let’s Play” videos would certainly hold up as fair use (they are overwhelmingly used noncommercially and are substantially transformative through their commentary), the use of emulators to create them puts “Let’s Play” creators at risk.

A Link to the Past

People who use DVDs for critique, comment, remixing or educational purposes, once faced a similar conundrum. Even if a use of the movie itself constituted fair use, many were breaking the law by cracking through the anti-circumvention measures on the DVDs. That law has since changed, and now many seeking to use movies for the aforementioned purposes enjoy several rights.

So are the people who create “Let’s Play” videos breaking the law by using emulators and ROMs to produce their videos? Currently, the law enables circumvention in the event that a program with protection be obsolete or no longer supported or readily available for repair in the current market.  Publishers like Nintendo have explicitly abandoned support for older video games and consoles. Though they argue that you may still play some games through Wii’s Virtual Console, the selection is often very limited, often promoting only the most popular games. Still, a few “Let’s Play” videos use these very popular titles, which doesn’t much help in that regard. Rather, a different argument might be needed.

Sometimes no amount of blowing will help you play your old NES games.

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A more growing problem in the video game industry is the growing DRM and anti-piracy measures, which seem to be moving towards limiting what you can do with your software (often by limiting how often you can install the software or when you can play). Nintendo and other companies would argue that, even if you owned the video game,  having and playing a ROM of that game is illegal.  Although having a backup copy of a video game you own is completely legal under fair use, going further by having a ROM is not. Companies like Nintendo want to limit how you can use your product.

As DRM and anti-circumvention measures develop further and video game companies begin to crack down on emulator and ROM users, we may face the stifling of a new artistic medium. Not only are “Let’s Play” videos at risk, but also other video types that necessitate the use of emulators, such as Tool-Assisted Speed Runs.  Time will come for either the law to change or kill the medium, but with the power of the internet and the notorious difficulty in fully removing something from it, I doubt we’ll see the latter. Times are already changing now that video games are accepted as art, and so it will only follow that they receive the same protections as art forms like movies and for uses of their DVD counterparts.

 

The Video Game Industry and DRM – Time for a Change – by “Ryan B”

While the online music industry is shifting away from utilizing DRM, or digital rights management, the video game industry continues to employ restrictive DRM technologies. Although these two industries are certainly not identical, video game companies may have some important lessons to learn from recent changes made by the major music labels.

Over the past couple of years, the major music labels have agreed to do away with DRM restrictions of digital songs sold through online music stores such as iTunes. DRM has proven to be an unsuccessful strategy for the online music industry, failing to stop the piracy of songs while driving away honest consumers who were frustrated by the lack of control they had over purchased music content. The subsequent decision to eliminate DRM restrictions was applauded by consumers, who are now purchasing online music more than ever. The lesson was a simple one: making your consumers happy is a good business move.

This concept, however, seems to have slipped passed some of the leading companies of the video game industry. Three recently released, high-profile games, Assassins Creed 2, Command and Conquer 4, and Silent Hunter 5 have a new form of DRM protection called “always-online DRM” that is frustrating even the most loyal fans of these franchises.


Always-online DRM requires a user to be online at all times in order for the game to run. On the one hand, this allows video game companies to combat piracy by periodically checking that a user is a valid one. On the other, this can create a truly dissatisfying gaming experience for those consumers who have legitimately purchased a gaming title.

For example, if a user is playing EA’s Command & Conquer 4 in single player mode, which does not require an internet connection, they can be booted from the game and lose the progress they’ve made on their mission if their internet connection happens to go out. One reviewer of the game complained that even without losing the connection, “the spectre of catastrophe hung over [his] head like a razor sharp guillotine.” Even worse, if a user happens to be somewhere that lacks internet service, he simply cannot play the game at all.

While always-online DRM might make sense in some future world in which an internet connection is available everywhere with constant reliability, this is clearly not the case today. Instead, always-online DRM punishes the very consumers who are keeping video game companies in business, those who have legally purchased the games. This approach to DRM, which holds combatting privacy above the gameplay experience of consumers, has proven to be incredibly damaging in the past. For example, another EA game, Spore, was released in late-2008 with DRM restrictions that prevented users from installing the game on more than three machines. In addition, Spore required users to verify that their copy was legitimate each and every time they went online. Users became so frustrated with this highly restrictive DRM system that piracy became rampant, landing Spore at the top of the list of most pirated games for 2008.

The lesson here is that video game companies must be sure that they don’t employ DRM technologies that are so restrictive that they end up alienating the very consumers upon which their businesses depend. While doing away with DRM protection entirely may not make sense for the video game industry, keeping consumers satisfied must be prioritized above and beyond keeping pirates at bay. Otherwise, once-loyal customers may end up joining the pirates in droves.