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Copyright Law and Video Games: A Brief History of an Interactive Medium
by Greg Lastowka on 09/05/13 07:27:00 pm   Expert Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

Hi Gamasutrans --

I've posted a draft chapter on the history of copyright law and videogames to the Social Science Research Network. 

Here's the link.

Here's the abstract:

Throughout their short history, video games have posed challenges to intellectual property laws. This chapter explores how courts in the United States have struggled to apply traditional laws of copyright to video games given that video games, like all games, are interactive processes. Players of video games both experience the games and perform them during the course of play. From the perspective of copyright law, the interactive nature of video games undermines the authorial control of the game creator, who does not created a single scripted experience, but instead designs an interactive system. This interactivity opens another copyright possibility: an authorial role for players.

Comments are welcome.


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Comments


Darren Tomlyn
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The problems we have, and are affecting the matter of copyright in relation to 'video' games, is propaganda.... (Which is the biggest problem with this matter - too many vested interests in having power over humanity's basic behaviour and knowledge.)

Information = property, is propaganda.
'Traditional' copyright, is propaganda.
'interactivity' = more created information, is propaganda.

Confusion between something created and the function/behaviour it is designed to enable = propaganda.

All of which have affected our recognition of how and why such products are covered and affected by copyright (and patents) - and are continuing to do so, today.

The basic act of playing a game has as much to do with copyright as using a microwave or driving a car - that the function might be productive or non-productive has no bearing on such a matter.

If a 'player' creates something by themselves that is suitable for copyright protection then such laws should be applicable to this person - not the person who created the program, any more than using Microsoft Word to create a document assigns the copyright to Microsoft. Trying to change this in anyway, is to undermine the very reason copyright exists, and is only useful to the companies providing such software to steal the rights to what it's used for. (This is the one area for copyright in which the word steal is applicable.) Humanity HAS to fight such efforts in order for copyright to be of any real use for itself, rather than a very small minority, (if that even happens to be the case any more.)

The fact is, is that there should be NOTHING special about 'video' games - (they should really be called computer games for matters such as this) - as far as copyright is concerned - they are simply works of art, (that contain many individual works of art in combination, such as films etc. can, and are often created by teams of people rather than individuals, even if each individual creation can be 'protected' in itself), that should have the same 'protection' as any other, except for the fact that the underlying computer code is also covered aswell. That such overall works of art are defined by an additional function, (as a type of activity), has nothing to do with them being a work of art, in itself, and therefore what copyright needs to refer to.

The problem, is that copyright is normally seen as protecting information in and for itself - it's the information that has value to 'protect'. However, computer software (not just games), now allows such information to have an ADDITIONAL function - a use to enable other behaviour/activities - above and beyond the information itself, and certain people/corporations do not like such a difference.

If copyright was all that mattered for computer software, then this wouldn't be a problem, but unfortunately, it's not.

Which brings us to patents, because they're about a specific manner - a process - of doing something - a specific manner of enabling a function, in relation to physical things (or should be), that copyright has (or should have) no bearing on.

Since computer programs are information that enables a specific process to enable a particular function, some people also want software to be able to patented ASWELL as copyrighted.

This is a very big problem. Since the computer code, by itself, describes the process, it has no need for the additional coverage of patents. Trying to protect such a thing in this manner, is to try and protect the very basis of arranging and using such information - from differing languages to mathematics itself - since that is the only process the code itself represents apart from the overall functionality it enables - the individual program itself.

Unfortunately, humanity isn't winning this particular argument all the time, in every country.

So, as I said, there are too many vested interests in changing, confusing, and even nullifying, such a relationship between a thing (whether tangible or intangible), its function and its use. Which is a massive problem.

Josh Cavaleri
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Thanks for posting this Greg - the article was very insightful and I thoroughly enjoyed reading it.

I particularly like how the article has been future proofed (with a reference to Xbox One and PS4 as "current home game consoles").

You mentioned that some courts have even found that players violating game rules can face liability for violations of copyright law - are you able to provide a case reference for this? I'd be interested in having a read.

Thanks again for sharing.

Greg Lastowka
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Thanks for those thoughts, Darren.

Josh -- sorry I didn't spot this until now! The two cases that spring to mind are MDY v. Blizzard and Marvel v. NCSoft. In both cases, the case for copyright infringement was premised on player infringement via game play -- though in neither case were there attorneys representing the players. In MDY, Blizzard claimed the bot-maker was liable based on the infringing activities of the players, in NCSoft, Marvel claimed that NCSoft's UGC tools infringed by allowing players to copy Marvel superheroes. In the end, neither claim stuck, but during litigation, both of those claims survived through initial proceedings, so the courts found them at least plausible. I'm sure there are some other cases out there like this -- though probably not too many. I mention both cases in Chapter 9 of my book Virtual Justice (which is available on my website as a free PDF).


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