For a Modder’s Panacea, Adapt Music Licensing Techniques

January 27, 2010 -

While game modifications are generally looked at as derivative and infringing works, an academic paper argues that it would be fair to apply a licensing provision currently used in the music business to the mod community in order to advance the genre.

Cover Songs And Donkey Kong: The Rationale Behind Compulsory Licensing Of Musical Compositions Can Inform A Fairer Treatment Of User-Modified Videogame (PDF) was penned by John Baldrica, an attorney, and is published on the North Carolina Journal of Law & Technology website.

Baldrica believes that a compulsory “mechanical” license provision of the Copyright Act, which allows musicians to record cover songs as long as they pay a “statutorily determined royalty” to the original song’s copyright holder, would do wonders for the mod market. Such movement would “feed the professional talent pool” in addition to granting the “freedom to produce the kind of new and creative works that the copyright system was intended to promote.”

The author notes that under the U.S. Copyright Act currently, “the creator of an original copyrightable piece of expression is given the exclusive right to authorize any derivative works,” meaning that game developers can effectively kill a modification to their game anytime they want to.

The problems are; what exactly defines a derivative work and who owns the new modded material that has been created?

…such analysis has been inconsistent in key cases involving modification of videogames. As discussed, treating a mod as nothing more than an alteration of the underlying copyrighted videogame would cause mods to fall under the doctrine of derivative works. It would also strip modders of copyright protection and subject them to liability if the modifications were unauthorized by the original copyright holder.

The compulsory licensing scheme for music has been called “instrumental in the development of the recording industry.” The author goes on to draw a series of parallels between the early days of the music business and the current state of computer software, calling the similarities “striking,” and furthering his belief that “mods’ similarities to musical recordings should merit analogous treatment under a similar statutory licensing regime.”

Unfortunately, Baldrica does not see any changes being made in the near future to the current system for two reasons: “a lack of political will from those outside of the videogame industry and a vested business interest in the status quo from those within.”

Expanding on the first reason, Baldrica writes:

Yet, unlike its concern for the promotion of musical recordings in the first years of the twentieth century, Congress does not appear inclined to grant statutory protections to promote development of videogames in the first years of the twenty-first.

And more on the second reason:

…the game developers and game publishing industry are reluctant to abandon a scheme in which they already enjoy substantial benefits and negotiation power.

8 comments

The Legalities of Reverse-Engineering Games

January 25, 2010 -

Attorney Mona Ibrahim has published an analysis of the legal implications involved in reverse-engineering games.

The article follows a hypothetical game developer who is frustrated that her favorite game has poor server support, so she reverse-engineers the network protocols to create a private, lag-free server.  The concept isn't so far-fetched: guides on how to create a private World of Warcraft server abound and some reverse-engineered games, like SWGEmu have gained quite a bit of attention.

Ibrahim's article outlines the various laws and doctrines that come into play with reverse-engineering, from the Copyright Act to the Electronic Communications Privacy Act, and provides practical examples of where enterprising coders can go wrong.

For instance, regarding the DMCA, Ibrahim notes:

If Mallory's new server doesn't provide the same safeguards that control access to the original game servers (like a CD key or a version verification protocol), then her own server is circumventing access controls to the online component of the game. Therefore, by distributing the program, means (such as DIY instructions), or code to access servers that don't use the game's original access controls, she would be violating the anti-circumvention provision.

The article concludes that while reverse engineering itself is not illegal, it does run a gauntlet of legal issues and that "[t]his isn't the type of project you want to pursue if you're risk averse".


Dan Rosenthal is a legal analyst for the games industry.

9 comments

IP Litigator Scrutinizes Videogame Art

December 3, 2009 -

Where does art inspired by videogames fall under the fair use doctrine? A U.S. Intellectual Property lawyer takes a look at just such a topic in an interesting entry on his blog.

Ben Manevitz centers his article on three pieces of art from Brock Davis, which show interpreted scenes from Dig Dug, Donkey Kong and Missile Command.

The four factors (for the U.S.) for determining fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted workas a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work.

Manevitz argues that the art in question meets the criteria of points 1 and 4:

The fair use analysis is actually fairly straightforward. You've got a transformative use that will have no impact on the market for the games, or even the potential derivative market for the games. That's factors one and four in favor of fair use.

The author claims that the works do not meet the second factor however:

Admittedly, the game screen is a creative work, which puts factor 2 in the not-fair-use column and it could be argued that the amount taken is substantial - it would depend on the determination of what, exactly, constituted the work; is it the game overall or individual screens.

Manevitz goes on to examine possible trademark implications:

… Atari might be able to argue that a consumer seeing the paintings might be confused as to the source or - in this case the stronger argument - sponsorship of the paintings.

He concludes that game makers might be able to make an “objectively reasonable trademark infringement case against the artist,” before noting that the “saving grace” for the artist might be “the practical factors militating against the manufacturer's bringing suit, to wit, the negative publicity, the paucity of available damages, the relative age (value) of the marks allegedly infringed, etc.”

5 comments

In Congress, DMCA Reformer Lands Key Subcommittee Chair

January 9, 2009 -

Rep. Rick Boucher (D-VA) has been picked to lead an important Congressional subcommittee, and that's good news for game consumers.

As MediaPost reports, Boucher will chair the House Energy and Commerce Subcommittee on Telecommunications and the Internet. From MediaPost:

As a longtime proponent of consumers' rights to lawfully copy films, books and other material, Boucher is considered a likely opponent of any entertainment industry efforts to restrict the Web. Among other measures, he is likely to oppose attempts to require Internet service providers to filter networks for pirated material.

Boucher also has tried to revamp the Digital Millennium Copyright Act to make it more consumer-friendly... Boucher's bill would have specified that the anti-circumvention rules do not apply in certain situations, such as when the purpose of getting around the restrictions was to access a work in order to criticize it or report about it...

In 2002, Boucher authored a strident column extolling the benefits of fair use... Boucher also supports net neutrality initiatives, as does President-elect Barack Obama.

In 2007 the Entertainment Consumers Association endorsed Rep. Boucher's fair use legislation, although the bill ultimately failed to pass.

Full Disclosure Dept: The ECA is the parent company of GamePolitics

3 comments

Spore + Porn = Sporn

July 31, 2008 -

Will Wright's Spore, due for a September 7th release, is one of most anticipated PC titles ever.

But, as CNN reports, some users of the Creature Creator utility, released last month, have built animals which are apparently intent on breeding. Or, at least coupling.

...Buried among the more wholesome attempts [at Spore creature creation] were two-legged dancing testicles, a "giant breast monster" and a four-legged, "phallic fornication machine," for starters...

 

For EA, the developer of "Spore," it's the downside to tapping into the booming user-generated content arena, which has made sites like YouTube, Flickr, MySpace, Facebook and Second Life so popular... Many of the popular user-generated content sites have faced similar challenges in trying to control obscene material...

 

The creatures are not just static. Users can create animated scenarios for the characters to engage in, some of which include sexually graphic acts.

When EA got word of the "Sporn" creations, it began working with YouTube to pull them down. Spore executive producer Lucy Bradshaw told CNN:

Whether it's modeling clay, dolls or crayons, a small number of people can be counted on to use it for something vulgar.

CNN also spoke to the "Spornmaster," a 37-year-old man who has created a number of reproductively equipped Sporn creatures:

I admit it is silly and juvenile, but I don't think there's anything perverted, vile or awful about it. If people find it offensive, they can simply not search for it online. No one is forcing anyone to see this content.

One Spore fan told CNN:

I consider this very similar to child pornography, at least to the extent of distributing the material to children.

GP: Buzzfeed has additional NSFW links...

71 comments

ESA Annual Report: Game Industry Policy to "Push Back" Against Fair Use

July 31, 2008 -

The ESA's 2008 Annual Report indicates that the video game industry hopes to uphold the controversial Digital Millenium Copyright Act (DMCA) against critics who claim that it restricts Fair Use of copyrighted material.

Based on the following passage from the report, the industry's position seems to be that gamers can create user-generated content only to the extent that in-game tools allow them to do so:

The interplay Between Fair Use and Digital Rights Management User generated content (UGC) is a high-profile policy issue in the copyright community, sparked by the phenomenal success of social networking sites like YouTube.

 

Influential policy papers from the U.K. IP Office and the Organisation for Economic Cooperation and Development (OECD) cite UGC as a tremendous social benefit of the Internet and call upon policymakers to tweak current legal regimes to better accommodate UGC. This issue has captured the imagination of critics of the current U.S. copyright system, who argue that Digital Rights Management restrictions confound legitimate fair use.

 

ESA IP Policy staff is bolstering its ability to push back against this assertion. In discussions with domestic and foreign IP officials and the OECD, ESA emphasized the rich and varied UGC-features currently incorporated into DRM-protected games.
 

 

 
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Andrew EisenThat was quick! Pretty accurate cosplay of the new Ghostbuster uniform and proton pack: https://twitter.com/mirabellemusing/status/61673135125394227207/03/2015 - 6:23pm
Matthew Wilson@mast I dont know, but I do know it got a cult fallowing here.07/03/2015 - 6:22pm
MastermuneWasn't the Zero Escape series more popular here than in Japan?07/03/2015 - 6:19pm
Matthew Wilson@mast given the game was revealed in the US, I wouldnt be shocked if it was released at the same time.07/03/2015 - 6:15pm
MastermuneI don't trust the big AAA worldwide simultaneous releases though.07/03/2015 - 5:57pm
Mastermune@Infophile I have come to the conclusion that smaller games like zero escape, JRPG's and the like are actually worth preordering sinc they are limited quantities and since they usually release in japan first we know if there are any issues.07/03/2015 - 5:56pm
Infophile@Matthew! Awesome news. I'd preorder on that shout alone if I didn't have a policy against preordering anymore.07/03/2015 - 5:16pm
Matthew Wilsonzero escape 3 was announced today.07/03/2015 - 4:21pm
Matthew Wilson@pnx I am guessing a ddoss since that is what happened to neogaf, but sony needs to do a investment in psn as a whole. steam is still the most reliable and fastest digital platform I use.07/03/2015 - 3:06pm
PHX Corphttp://www.vg247.com/2015/07/03/psn-is-down-sony-investigating/ not again: PSN is down, Sony investigating07/03/2015 - 3:04pm
Matthew Wilsonhttp://www.vg247.com/2015/07/03/digital-extremes-trespasser-keystone-pc/ if true, this is funny and embarrassing for Digital Extremes. companies need too have better security.07/03/2015 - 2:57pm
Matthew Wilsonhttp://www.gamespot.com/videos/the-point-destiny-the-hardcore-gamers-slot-machine/2300-6425852/ this is very good, and well researched.07/03/2015 - 12:41pm
InfophileOther features to become standard: The ability to remap controls however the hell I want. Quicksave at any time (especially for handheld and mobile games). Plus everything Andrew said07/03/2015 - 10:43am
InfophileRegion-freeing becomes tricky for games with a strong online component though, especially when the servers are run by different branches in different regions.07/03/2015 - 10:41am
InfophileI'm in favor of getting rid of region-locking for any purchased games. I can understand an exception for free, ad-supported games, as many ads are only relevant in certain regions, and it's a ridiculous hassle to get ads for all regions.07/03/2015 - 10:40am
PHX Corphttp://kotaku.com/payday-2-has-been-broken-on-xbox-one-for-three-weeks-1715384186 Payday 2 Has Been Broken On Xbox One For Three Weeks07/03/2015 - 8:44am
Matthew Wilsonhttps://www.reddit.com/r/OutOfTheLoop/comments/3bxduw/why_was_riama_along_with_a_number_of_other_large/ here is a more complete acount of whats going on.07/03/2015 - 1:32am
Matthew Wilsonredit is on fire right now. most subreddits have been set to private.07/03/2015 - 1:24am
MattsworknameYou know andrew, those are actualy rock solid ideas, I woudl like those features a bunch ,especially with games that a cut scene heavly. looking at you kojima!07/03/2015 - 1:18am
Andrew EisenActually, "things I'd like to see become standard in video games" ain't a bad idea for one of my future YouTube videos.07/03/2015 - 1:05am
 

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