The ESA quietly starts walking back baffling statements about private servers being ‘illegal’, though it’s still tutting and wagging its finger

The Entertainment Software Association, in an ongoing attempt to slow the roll of the games conservation movement Stop Killing Games, made a baffling statement at a recent California State Senate hearing over a proposed Protect Our Games Act that goes as follows:

“[Private servers are] illegal. They are not in any way affiliated with Microsoft. Microsoft, for Minecraft, has gotten a lot of criticism because of those community servers not employing the same safety standards that Microsoft does on their Minecraft servers.”

Now, you can read our very own Joshua Wolens’ article on the foible yourself, but I’ll repeat what he said back then in that the words of ESA vice president Jennifer Gibbons are basically nonsense. More on that in a moment.

In a statement provided to PC Gamer, the ESA wrote: “Private servers infringe on the intellectual property (IP) rights of game publishers. Publishers reserve the right to exercise their rights against them. The provision in CA AB 1921 that proposed these servers as a legitimate alternative to keep games running raises concerns about a publisher’s ability to enforce their IP rights.

“In addition, private servers operate with no oversight from the publisher and do not uphold the same trust and safety standards. This could create an unsafe environment for players and be counter to the industry’s commitment to fostering safe and fun game play for all players.”

The ESA has since sent us another statement for what it calls “additional clarity”, I’m not all that convinced we aren’t looking at a backpedal, here. You can read the full updated statement in the screenshot below, but for the sake of in-article brevity, here are the key differences:

• Narrowing the scope of what private servers cause trouble, specifically, ones that “host or distribute copyrighted game content.”
• A “without authorization” was snuck in there, too.
• “While publishers may take different approaches,” was added to the statement that publishers “reserve the right to exercise their rights against them”.

Basically, it’s a softening of the deeply condemning statements the ESA made both during that hearing and in their original statement to our publication. And hey, it makes sense that some things are being walked back: Plenty of games have officially-permitted private servers or private server functionality without incident.

There are, of course, exceptions—like MMOs. There are World of Warcraft private servers that give access to the game without a subscription while also making money via in-game cash shops, which is legally indefensible, no matter how interesting their own spins on the games are.

But there are also exceptions to those exceptions, too. A City of Heroes’ private server, Homecoming, was given official permission by its IP owners to keep operating on account of its good, non-profit focused behaviour.

And no matter which way you slice it, Minecraft isn’t coming under fire for its community servers in any statistically significant way. As Josh pointed out, there’s a literal part of the official website that lets you download a server, and in doing so, agree to the EULA.

While it’s true in theory that Microsoft doesn’t have a say in what people do on their own private servers… I mean, good? I’m stating the obvious here, but I don’t think we should live in a world where the only online interactions we can have are the ones pre-approved by companies nobody voted for. That’s how you get nonsense like credit card companies muscling in on itch.io.

It’s a world I get the sneaking suspicion the ESA would like very much, however. This is the same lobby group that stopped libraries and museums from obtaining a DMCA allowance to provide remote access to games.

And while the ESA is technically correct in that private servers aren’t 100% safe, neither is crossing the street, or taking a shower, or going outside. I’d be skeptical about its assertions that it’s just trying to make the internet safe and cushy for everybody. We’ve seen how the UK’s attempts to do so have gone awry.