In a remarkably strange statement at a recent California State Senate hearing over the Protect Our Games Act (AB 1921, California's Stop Killing Games-endorsed bill to compel publishers to provide ways to keep playing discontinued games), a representative of the Entertainment Software Association declared private servers for the likes of Minecraft and Call of Duty "illegal," adding that, so far as the ESA is concerned, "we consider it piracy."

The representative in question was Jennifer Gibbons, the ESA's vice president for state government affairs, and just to clear this up right away: what she said was nonsense. You can, literally right now, head over to the official Minecraft website and download a .jar file to let you run your own private server.

Gibbons was responding to a comment made by California state assemblymember Chris Ward—who introduced the bill—regarding the possibility of keeping games alive with private servers. "Minecraft is currently hosted by community servers, Call of Duty [has] community servers, so it's an option that is out there, in existence here today."

Gibbons cut in: "They're 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."

Asked by California state senator Caroline Menjivar as to whether this was "like the black market of videogames?" Gibbons responded "Yes. In fact, we consider it piracy. We have lawsuits, two pending lawsuits, against private servers right now, and the United States Trade Representative (USTR) in their Notorious Markets Reports on counterfeiting and piracy has named some of these big private servers as a notorious market." A notorious market refers to a market where intellectual property infringement is rife—think something like The Pirate Bay.

It is true that the USTR has named particular private servers in its Notorious Markets Reports in years gone by, but not for the simple fact of existing as private servers. To take an example, the 2018 report specifically cited Warmane and Firestorm Servers as examples of notorious markets—two sites which enabled people to play World of Warcraft without paying a subscription to Blizzard. Which is quite a bit different from the private Minecraft server you run with your pals, or a community server for an old COD that no one maintains anymore.

Regardless, the Protect Our Games Act did not make it out of this stage of the legislative process. With four aye votes, three noes, and four abstentions, it failed to accrue the majority of ayes necessary to pass. Nevertheless, it has been granted a reconsideration, so it's not the end.

We have reached out to the ESA for comment on this story, and will update if we hear back.

A Stop Killing Games campaign volunteer has already commented on the hearing's proceedings. In a post on Reddit, they wrote that the ESA's claims, both regarding the supposed illegality of private servers and others, were "designed to scare a busy legislator who does not have time to fact-check a well-dressed lobbyist in real time.

"It worked just well enough this round. It will not work when we are standing in the same room, with developers and players beside us, ready to answer every single claim as it happens. Next session, we come back with an in-person lobbying presence, the funding to do this properly, and a long list of organizations and developers signed on in support.

"We are not limiting this to California. We intend to introduce versions of this in other state legislatures, and we are seriously looking at the federal level. The ESA is about to learn what it is like to fight on many fronts at once."

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