Content Protection FAQs

Frequently Asked Questions about video game infringement & ESA’s content protection activities

Q1: Is it legal to make or download backup copies of games as long as you own a legitimate copy? And if so, can you sell your backup copy or sell your original and keep your backup?

A1: U.S. copyright law permits the creation of a backup copy of computer programs for archival purposes, but the law only allows a consumer to make an archival copy of the actual copy that he or she legally possesses, not to make a copy of a file that someone else legally possesses (by downloading it from a website or via a peer-to-peer client, for example), nor to post an archival copy of his or her original copy in a location where it can be widely distributed.

When a legal, archival copy of a game is made, the law places clear and strict limitations on when such copies may be transferred to another person. Specifically, the transfer of an archival copy will comply with the law only if (a) the original copy is transferred along with the backup copy to that same person, and (b) the transfer is part of the sale of all rights in the program. Likewise, if you have transferred your rights to the original copy to someone else (by selling or giving it to them), then you are no longer permitted to retain an archival copy of that game.

Q2: Is it okay to download or distribute copies of old games that are no longer distributed in stores or widely available?

A2: No. Under U.S. copyright law, copyrights owned by corporations are valid for 95 years from the date of first publication and the first mass-marketed video games were sold about 30 years ago. The retail availability of a game is irrelevant to its status as a work protected by copyright.

Q3: Why is it illegal to share video games on peer-to-peer networks or other sites?

A3: By posting copyrighted code to a website or making it available for download by others through a peer-to-peer client, you are violating the copyright owner’s exclusive rights, including the right to reproduce and/or distribute their works. When individuals or groups make some or all of a copyrighted game on one of these networks or sites, it is a clear violation of U.S. copyright law.

Q4: My Internet Service Provider (ISP) sent me a message saying that, according to ESA, someone used my account to download infringing material. What is going on?

A4: ESA monitors the illegal distribution of infringing game files via peer-to-peer connections. If you received a notice from your ISP that mentions ESA, it is because information derived from this monitoring indicated that someone used your account to participate in the distribution of at least one infringing game and we sent a Digital Millennium Copyright Act (DMCA)-compliant notice to your ISP to advise you of that fact so that you can take appropriate steps to ensure that this illegal activity ceases. Visit our DMCA FAQ page for more information about this notice.

Q5: What are the rules for console modification?

A5: Copyright owners often use technological protection measures (TPMs) to control or manage access to their works by preventing the unauthorized copying or use of their games. TPMs play an important role in the maintaining the viability of the legitimate market for developing and selling video games, which in turn protects everyone who depends on that market for their income and livelihood (from game designers to retail store clerks). Congress recognized the importance of these technologies in the Digital Millennium Copyright Act (DMCA) and outlawed the manufacturing and distribution of products or services that are aimed at circumventing these copy and access protections. Those caught selling such devices or services may be subject to criminal prosecution and/or held liable for civil damages resulting from such activities.

Q6: What types of infringement does the ESA Content Protection Program focus on?

A6: All types. ESA’s enforcement activities target both online and physical distribution of infringing game code and the sale of devices or services employed to circumvent TPMs. ESA works with websites, search engines, website hosting service providers and others to ensure that notices submitted by our organization adequately describe the infringement and its location and result in prompt removal of access to infringing material.

Q7: What is the focus of ESA’s collaboration with law enforcement?

A7: ESA is supportive of IP rights enforcement investigations initiated by law enforcement entities in jurisdictions worldwide. In some cases, ESA works with law enforcement officers to identify manufacturers, distributors, and/or sellers of infringing goods and services (operating online and offline), and when necessary it provides data and expertise to support the successful prosecution and sentencing of individuals who have engaged in such illegal behavior.