Posted by: Kyle Sol Johnson
April 20, 2015
Increasingly videogames are released alongside downloadable content (DLC) the adds some aspect or function to the underlying game. These may be packs of maps, new zones, new weapons and armors, or even entirely new missions. Often it is a combination of the above. Traditionally, DLC is offered some months, or even years when it comes to expansion packs, after the release of the original game. However, many games of late have been released alongside so-called Day One DLC that is immediately available for purchase when the underlying game is released. Some videogame developers have taken this a step further, including unlockable content on the original game disc itself and later selling consumers a key that will allow them to access the encrypted data.
This ‘disc-locked content’ has drawn copious amounts of ire and criticism from consumers and game journalists. Consumers feel that they have paid for the disc and should thus have access to everything on it as the owners thereof. These consumers claim that disabling the encryption to gain access to the locked content constitutes a fair use because it is a noncommercial use under §107 of the Copyright Act.
However the decryption of on-disc locked content likely fails the fair use test because of the nature of the works. Video games are creative works that receive high copyright protection. Moreover, the locked content is itself likely subject to copyright and thus the circumvention is a substantial use. It also has a strong impact on the potential market for the value of the copyrighted work.
Furthermore, the fact that the content is encrypted likely subjects it to protection under the DMCA Anti-Circumvention provision, which makes illegal any circumvention measure that is primarily designed for the purpose of circumventing a technological measure that effectively controls access to a protected work, and has no or limited commercially significant purpose or use other than to circumvent the technological measure. However, this only applies if the individuals market the circumvention technique with the knowledge that it will be used for circumvention. On the other hand, 321 Studios v MGM (2004) suggests that the final factor may merely be a savings clause.
Moreover, as is the case with most software, publishers are selling a license to use a copy rather than ownership of a copy. Right on the box of everyone of Microsoft’s XBOX 360 games is a clause stating that, “[u]nauthorized copying, reverse engineering, transmission, public performance, rental, pay for play, or circumvention of copy protection is strictly prohibited.” Similarly, Sony’s Playstation 3 boxes refer customers to online software license terms which say that users, “…may not (i) rent, lease or sublicense the software, (ii) modify, adapt, translate, reverse engineer, decompile or disassemble the software, (iii) attempt to create the source code from the object code for the software, or (iv) download game content for any purpose other than game play.”
This contract term is debatably overbroad. Reverse engineering is generally considered fair use, and § 117 treats consumers as owners of a copy. However, the 9th Circuit in MAI v. Peak (1993) established a precedent for treating software purchases as a purchase of a license.
However if the use is not illegal (i.e., the courts find that unlocking encrypted content on a copy that the consumer owns is a fair use) then the circumvention itself is not illegal. However this is unlikely. While courts remain split over the ultimate issues of licenses, the primary case in conflict with the 9th Circuits opinion, Vault v. Quaid Software ruled that the license was unlawful on the grounds that the consumer could not accept what he could not see. Here, the license terms are right on the outside of the box, freely available to the consumer prior to purchase.
Consumers that take umbrage with this tactic developers are using to sell product will likely be forced to vote with their wallets and simply choose not to purchase games that they feel are unethically squirrelling content away behind a pay wall.