Digital rights campaigners want legal protection for gamers who want to carry on playing games after the relevant servers have shut down. But software firms have reportedly opposed such a move as promoting hacking.

The issue has been raised by the Electronic Frontier Foundation and involves games which rely on access to an online server to work. This isn’t necessarily ‘online games’ as such, but also covers those which need to ‘phone home’ for licensing reasons.

The EFF believes that as things stand, if the publishers shut down the server and you modify that game so that it carries on working, you risk breaching the Digital Millennium Copyright Act. That’s a controversial law that means it can be illegal to remove or alter any digital copyright protection software, even if you don’t then go on to breach copyright itself.

The way the law works means the Copyright Office, a government agency, can issue specific exemptions from the DMCA. The EFF has now formally applied for such an exemption where vital game servers shut down. It’s argued that as well as being fair to gamers who’ve paid for a product, an exemption would make it easier for researchers and archivists to track gaming history.

The Entertainment Software Association, the main industry body for games makers, has filed two comment documents objecting to the request. The first, made jointly with the MPAA (movie industry) and RIAA (music industry) for some reason, dismisses the EFF’s stated reasons for making the request and claims:

it is clear that EFF’s primary goal is to legitimize game, console, and server hacking for the purpose of enabling casual use of entertaining, copyrighted video games across a wide swath of platforms and devices.

In a second, individual filing, the ESA says that were the exemption granted:

users would wrongly believe that they can traffic in circumvention tools to hack their video game consoles. The takeaway would be that hacking consoles—an activity closely associated with piracy in the minds of the marketplace—is lawful.

In response, the EFF says there are plenty of cases where ‘hacking’ in one form or another is legal, and that most game programmers “undoubtedly learned their craft by tinkering with existing software.”

It should be noted that the EFF’s press release on the subject slightly misquotes the ESA comment document, a misquote repeated in many media reports today. The EFF quotes the ESA as saying an exemption would send the message that “hacking —an activity closely associated with piracy in the minds of the marketplace—is lawful.” In fact the ESA document specifically refers to “hacking consoles”.

That said, the EFF doesn’t seem to believe there’s any distinction in play, arguing that:

Behind this hyperbole, ESA (along with MPAA and RIAA) seem to be opposing anyone who bypasses game DRM for any reason, no matter how limited or important.