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“Modding culture can be seen as a type of participatory culture, one where fans take an active role in re-structuring and tweaking story lines and narrative arcs for their favorite media products.”
~ Hector Postigo, First Monday
In the modern world, where new media content is being created every single second of every single day, intellectual property rights can be a sticky issue. The issue becomes even more complicated when aspects of intellectual property law like software, code language, imagery, and full video games are introduced into the mix. Just as with any area of law, the legal code surrounding intellectual property is constantly in flux – and rightly so. If litigators, companies, and individuals are to stay abreast of the changes in software, technology, and the way media is consumed, the law must change and adapt accordingly. One of the clearest examples of this is with the intellectual property laws surrounding video games. Video games are ostensibly somewhere in between speech, artwork, and intellectual property, and therefore are more difficult to address (and protect) from a legal perspective than other, more clear cut, items of intellectual property. More specifically, the ‘modding’ culture found in the video game industry poses an interesting problem for anyone concerned with intellectual property rights. Do modifications to existing video games fall under fair use, or do they violate a copyright? This research paper seeks to address these questions, as well as the intellectual property implications of video game modding.
Video games have constantly been on the rise since the first invention of software and code. This has proven especially true in the current century – video game sales have nearly tripled (from $5.5 billion to $15.4 billion) from 2000-2014, and continue to rise (Statista 2014). This statistic alone makes it obvious that video games (and their associated modifications) are an important point to consider when discussing intellectual property. More specifically, user-led modifications (‘mods’) in video games have posed a unique problem for the intellectual property legal code. In simple terms, a mod is when a user makes an unauthorized change to the video game’s source code, and changes either the game play, visuals, or outcome of a game. These modifications currently fall in a legal ‘grey’ area, and their validity is entirely dependant on the perspective of the proprietary owner (i.e. Blizzard Entertainment). As of now, there does not seem to be a legal consensus regarding the status of video game mods in relation to intellectual property. The main question of this research paper, then, is as follows: Do video game mods inherently violate intellectual property rights, or is there some case law and legal perspective that allows their legal inclusion?
Based on a review of case law, existing literature, and contemporary perspectives, this paper finds that modding represents the future of the interaction between video games and copyright (intellectual property) law. This research paper takes the ludological perspective on intellectual property in regards to video games, focusing on the potential for interaction rather than on the limitations of copyright statutes. In addition to supporting this main thesis, the present research paper will discuss the topic as it relates to derivative works, the fair use doctrine, and how the implications of this thesis could allow an integrated, regulated business for mods. Before delving into the legal implications, the paper will discuss the history of the interaction between video games and copyright law. This will be used as a foundation for the remainder of the paper. Second, the paper reviews existing literature on the subject – including both so-called narrative and ludological perspectives on video games and intellectual property. Third, the paper will turn to three specific case studies that have direct relevant to video games and intellectual property. Finally, the research paper makes its own analysis of the topic, using history, literature review, and case studies of video games and intellectual property. Ultimately, the paper argues that video game modding falls under the interactive perspective – and therefore fair use.
The history of the interaction between video games and copyright is fascinating, to say the very least. As Greg Lastowka writes, “The primary problem that video games pose to copyright is that they, like all games, are interactive processes. Players of video games both experience the games as creative works and perform those works during the course of their play” (Lastowka 2013, n.p.). This statement all but sums up the unique interaction that these two legal elements have with each other. Even the definition of video games in legal terms has been difficult. Kent (2001) acknowledges that historians and academics alike have had some uncertainty in the proper definition of “video game” – some include “any form of electronic and interactive graphical amusement”, while others limit it to “computer-based entertainment technologies” (Kent 2001, 73). The most literal definition covers any game in a digital format – either way, the variety in definitions often causes slipperiness in legal and academic discussions of the medium.
One thing is clear: video games are quite unlike any other text-based or audiovisual medium. One scholar has stated that the “key appeal and aesthetic potential” of video games are in their participatory nature: “the highest and most complete form of representation is interactive representation. Games provide this interactive element, and it is a crucial factor in their appeal” (Crawford, 2011, 214). These interactive features are what have made the relationship between video games, their owns, their players, and intellectual property law such a contentious issue in recent years.
So what is considered a video game in this current research paper? For the purposes of the thesis, the most convincing aspect of a video game by way of definition is in its interaction and participation – much like the quote above highlights. It is this interactive component that differentiates video games from other media and other types of intellectual property. As Lastowka (2013) states, “From the perspective of copyright law, the interactive nature of video games makes players somewhat like authors and undermines the authorial status of the game creator” (n.p.). In fact, much of the case law in the history of video games and intellectual property supports this perspective. Some have even gone as far as to say that, because video game design is not “traditionally” authorial, video games in this way are “not fully protected by copyright law” (Lastowka 2013, n.p.). Therefore, from a case law perspective, traditional copyright law may not sufficiently protect game designers as authors, nor sufficiently account for the role of players. This may seem counterintuitive, or even oxymoronic, but the discussion below ought to explain.
In one way, traditional copyright law may limit certain intellectual property rights for the game author, while simultaneously limiting a player’s right to fully participate or even create authorship within the game’s platform. On the one hand, current copyright law only protects the code behind the interaction of video games. This means that aspects like gameplay, avatars, and even screen captures are often not protected (Crawford 2011). On the other hand, video games are becoming increasingly social and interactive, and often offer the ability to create or build within the game’s platform. The way that video games are set up, these creations (media) are often owned by the game’s creators or owners (Lastowka 2013), rather than to the players themselves. In this way, copyright law is insufficient for both the players and creators of video games.
This becomes increasingly apparent when one considers the advent of video game modifications – or mods. Because this is the main topic of this paper, it bears some initial discussion before jumping into the legal and intellectual property implications. As Hector Postigo (2010) states, “Modding is an important characteristic of participatory culture in video games” (n.p.). While this scholar’s discussion of modding is primarily cultural, this is an important consideration even within the legal framework. As the author goes on to say, “Modding culture can be though of as a point of articulation between the industry and participatory cultural practices”; furthermore, modding culture is not simply a process of cheating the industry, and instead puts a “high premium on modding for fun or out of love for a particular community or game” (Postigo, 2010, n.p.). In this way, modding is not a cut and dry case of copyright infringement; instead, it represents the fine line in the participatory nature of modern media.
From a technical standpoint, modding is simply the act of modifying – or altering – existing video games: it is “altering the code of a game to change it in some way” (JIPEL, 2016, n.p.). One scholar defines modding as when “Savvy fans dive into the back-end of their favorite games to fix bugs, update graphics, or introduce new elements” (Letzer, 2015, n.p.). Some games and companies integrate the ability to mod within their games – such as with MineCraft or Steam’s Community Workshop (Letzer, 2015). Other companies and game creators actively fight against the modding community. Therefore, there is not even a consensus within the gaming industry on how to treat the modding community; that is, whether the represent a menace to intellectual property or a means of innovation in existing games. Either way, the modding community uses existing video games as a foundation, building the ‘house’ (or mod) on top. Whether this is valid (or legal) is the major question of this paper.
Now that the relationship between video games and intellectual property have been established, along with a brief discussion of the role of modifications in these games, one question remains: why is this topic inherently crucial for the realm of copyright law and intellectual property? The answer is quite simple: the contentious position that video games have in relation to intellectual property will only become more complicated as video games become more participatory and complicated. Therefore, addressing the issue now (and continuously) is key to ensuring that the interests of both video game makers and the modding community are met. Furthermore, this is an important topic to address because, as has been stated above, there is no clear consensus from any concerned party regarding the proper protections of copyright law over video games. There are, however, certainly opinions on the subject, as this review of literature will show.
There are a wide range of perspectives – legal, personal, and professional – on the issue of how copyright law can (and cannot) protect video game content and, more specifically, mods made within the context of existing video games. There is certainly case law relating to the topic, as will be seen in the case studies discussed below. However, because of the slipperiness of video games as defined above, often this case law can give varying degrees of support for copyright protection.
Historically, the courts have been slow to protect even the most simple video games under copyright law (Lastowka, 2013). For instance, Atari wanted to copyright its Breakout game in the 1980s. Basically a Pong variant, the Copyright Office first rejected the company’s registration for copyright, “stating that the game was insufficiently creative to constitute an authorial work” (Lastowka, 2013, n.p.). This set the tone – and the strict rubric for originality, creativity, and authorship – for the copyright protections of video games over the next couple of decades. On the other hand, one report found that “courts consider user-generated works as derivative content belonging to the copyright owner” (JIPEL, 2016, n.p.).
These early court decisions also marked the beginning of two differing legal perspectives in copyright protection of video games: the so-called narratology and ludology perspectives. The narratologist perspective sees video games as no different than any other creative or authorial work, while the ludological perspective sees video games as inherently participatory, and therefore calls for a different standard of scrutiny. These two perspectives encapsulate not only the existing case law on video games on copyright law, but also the opinions expressed in relevant literature.
More specifically, the narratologist perspective sees video games similar to other forms of media, and therefore inherently protected under copyright law. In contrast, the ludologist perspective considers video games as sufficiently different than other forms of media as to require a different set of protections. The two perspectives are best represented in Supreme Court decision in Brown v. EMA,131 S.Ct 2729 (2011), which directly addressed the issue of whether “video games were fundamentally different than books, films, artwork, and other forms of traditional media.” In the decision, Just Scalia wrote “As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind.” By this, he was referring to other forms of media which can also be considered participatory.
In contrast, Justice Alito wrote that reading a novel is a much different experience than reading a book: “When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie” (2751). While this case primarily deals with First Amendment rights (rather than copyright law) these opinions accurately reflect the two perspectives relevant to this paper’s discussion. The definitions will be used as underlying assumptions regarding this topic throughout the remainder of this topic.
Most academic perspectives regarding copyright law and video games fall within the two perspectives described above. Some have even gone as far as to say that video games are unprotectable under copyright law because they are systems rather than content. The Copyright Statue states that copyright protection is not applicable for “any idea procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it described, explained, illustrated, or embodied in such work” (US Code 102). Under the ludologist perspective than, “certain elements of video game design may also be barred copyright protection” because games are often “primarily systems and procedures that guide player behavior” (Lastowka, 2013, n.p.). One scholar, Boyden, defends this perspective in particular: “Imagine there were a rule that ‘novels are not copyrightable,’ but that a novel’s plot, characters, setting, dialog, and cover art all were. What would be the point of such a rule?” (Boyden, 2011, n.p.). In other words, Boyden compares the integral parts of video games to the integral parts of a novel or other authorial work to point out that all games (including video games) are abstract systems. Because of this comparison, Boyden and others argue, game play ought to be excluded from copyright law altogether. Boyden goes into even more detail to defend this perspective, and is worth quoting at length:
The experience of play is supplied by the players, not the game designer. Even video games, despite being comprised of software, audiovisual elements, plots, graphics, and characters, nevertheless have an uncopyrightable core: the actual play of the game. Systems are shells into which users pour meaning (Boyden, 2011, 479).
Therefore, the ludological perspective of this topic holds that video games are in a category of their own, while narratological perspective holds the traditional line of copyright law. Despite this perspective, it currently seems as though the “disclaimers that players agree to while creating content will probably be enforced by courts and limit any potential claims of copyright for players” (JIPEL, 2016, n.p.). Therefore, the mainstream seems to tow the narrative line. But what does the existing academic literature have to say about video game modifications themselves?
Within the modding community, there is also a variety of opinions regarding the potential benefits of modding for both game makers and game players (or consumers). As Letowska (2013) states, “Critics of the rise in video game co-creation point to the fact that game companies retain the majority of the economic value produced by free player labor,” while in contrast “those with more optimistic views of co-creativity in video games generally make arguments that are essentially consistent with those made by early proponents of Web 2.0” (n.p.). In other words, those in favor of cooperation and modding in video games say that this interaction will benefit both the innovation of game companies and producers and those who are playing – and intrinsically interacting with – the game.
More specifically, some authors have claimed that “player participation in video games operates in a non-market culture sphere that is normatively superior to domains of commoditized culture” (Benkler, 2006, 271; Burri-Nenova, 2010). Therefore, while game makers may have intellectual property rights over their games’ software, content produced by users and players also ought to be protected for the ones that created it. While it may sound ‘pie in the sky’ and not directly relevant to a legal discussion, this perspective fits within the ludological perspective of video games in relation to copyright law. Any discussion regarding copyright law ought to include both the interests of the gaming (and modding) community and those of the video game industry.
Tyler Ochoa (2012) points out that “if we put aside the contractual issues surrounding player authorship within the context of video games, there seems to be no reason that players cannot qualify under copyright law as authors when they use robust creative tools provided by video games” (959). The scholar compares the video game software to that of a word processor to make his point. Another scholar backs up this perspective, stating that “Even in cases where players are not provided with authorship tools, many players today use third-party software and technologies to copy and reproduce particular elements of video games” (Scacchi, 2010, 17). This view of video games as authorial tools, rather than consumable media, poses an interesting problem to copyright law and a discussion of intellectual property. To further highlight this discussion, the paper can now turn to specific examples of the topic.
In order to adequately understand the underlying issues of apply intellectual property to modern video games, it is necessary to look at specific cases of intellectual property law and the ideas explained above at work. Therefore, this paper turns to two specific case studies in regards to the topic; the first is a legal case, and supports a narratological perspective, while the second is an example of how interactive modern video games can be (and why that can be beneficial for all involved parties). The first case is Midway Mfg. v. Arctic International, while the second is a discussion of the popular game MineCraft.
The first court case was between Midway Manufacturing (the maker of the popular Pac-Man and Galaxian games) and Artic International, which allegedly created games that infringed on Midway’s intellectual property rights. The defendant’s argument was largely that the arcade games were not a “fixed” medium, but rather something that players interacted with to create their own content. In this way, even more than thirty years ago this case bears relevance to the modern discussion.
The opinion written by Chief Judge Cummings (for the Seventh Circuit Court of Appeals) in Midway Mfg. v Artic International works as a sort of antithesis to the perspective presented above. In the 1983 opinion, Cummings wrote, “Playing a video game [is] a little like arranging words in a dictionary into sentences or paints on a palette into a painting. The question is whether the creative effort in playing a video game is enough like writing or painting to make each performance of a video game the work of the player and not the game’s inventor” (999). In answer to this question, the court found that it is not sufficiently creative. Instead, Cummings wrote that “Playing a video game is more like changing channels on a television than it is like writing a novel or painting a picture” (999). Therefore, this case set the tone for those who take a narratological view on video games, maintaining traditional intellectual property rights and copyright law for video games as for other media.
The other case study relevant to this discussion is much more contemporary: the very popular game called MineCraft. In simple terms, the game gives players the basic building blocks to build their own worlds, as well as to interact with it and with other players in whatever way they want. As Lastowka writes in another piece, MineCraft is all about “letting people discover their own creatvitiy, even if they have no initial intention of being creative” (Lastowka, 2016, n.p.). In this way, the game is the complete antithesis to the narratological view of video games. While there is some inherent gameplay, the vast majority of MineCraft’s interactions are created by the player. This change alone can challenge anyone’s view that all video games fall under the narratological perspective.
As Lastowka (2016) goes on to write, “Most developers in the industry have been steeped in the logic and culture of intellectual property,” which contends that “game developers should make content and players should consume.” In this way, MineCraft stands in stark contrast to this logic. The game embraces user participation, and even suggestions from players themselves. The game works more like a the proverbial word processor described above than nearly any other video game. In short, MineCraft realizes the potential for players and users to act as game creators and developers, rather than keeping it one sided. In this way, the game represents at least one way that game developers and players alike can work around intellectual property issues. Lastowka has an important caveat: “IP has been and will continue to be essential to the development of video games as an art form” (Lastowka, 2016). However, games like MineCraft can satisfy both the intellectual property rights of the owner and the creativity of the players.
Based on the above discussion, this research paper can make several conclusions, as well as its own argument. First, considering the history of video games and intellectual property, as well as the review of literature and relevant case studies to the topic, it is apparent that there are varying opinions on the role of intellectual property in video games and its related media. However, it is equally clear that these opinions most often fall into one of two camps: narratology or ludology. While these may seem overly specific words, they essentially describe one’s view of video games in relation to other media. Either video games are inherently based on interactivity and participation (the ludological perspective), or else they are simply advanced storylines with clear-cut authorship (the narratological perspective). While there are certainly other perspectives on the subject, these two perspectives represent the main legal and business approaches to dealing with intellectual property in video games. This dichotomy has been made apparent through the above discussion.
The second conclusion that can be reached from the above discussion is that the interaction between intellectual property and video games is not a cut and dry, legal or even moral certitude. Instead, one’s opinion on the way that video games are protected (or not protected) under copyright law depends entirely on one’s subscription to one or the other of the perspectives presented above. Particularly when considering the legality (or even desirability) of modding within the video game industry, opinions vary widely based on where one’s primary interests lie. However, what can be determined is that modding ought to be at the very least given the same scrutiny as other works that fall under derivative works and the fair use doctrine (Stim, 2013).
Using these legal guidelines, research paper finds that video game modding falls under the interactive/ludological perspective for three main reasons. First, video games are interactive by their very nature. As the above literature review and case study of MineCraft show, video games are entirely dependent upon participation. To state it succinctly, there would be no game play without game players. This is the main argument of the ludological perspective, and one that this author finds quite convincing considering the participation levels in modern day video games.
Second, by and large no money is to made in modding, which instead is focused on a passion and creativity in the gaming community. While video game companies certainly have the right to protect their copyright interests, usually modding poses no financial or branding threat to the creators of the game. Instead, modding often offers the opportunity for innovation, growth, and even so far as free marketing. Finally, video games are clearly their own kind of media, and should be treated as such, rather than being fit into a box with other authorial works. While elements of video games certainly bear similarities to other media, the interactive nature and ever-changing environments of video games mean that they cannot simply be lumped in with motion pictures or music compositions. Instead, video games deserve their own level of legal scrutiny.
In addition to the thesis outlined above, the discussion in this research paper creates an additional question that bears a future dialogue: if modders were to sell their mods for profit, how could this business be properly regulated, as well as meet the interests of video game makers? While this paper cannot address the answer to this question, the question in and of itself helps guide a discussion of how intellectual property concerns video game modding.
This research paper has looked into the concerns that intellectual property right owners (such as video game producers) have over video game modifications and its community. The paper ultimately presented the perspective that video game modding represents the future of the interaction between video games and copyright law. The paper took the ludological perspective on intellectual property in regards to video games, focusing on the potential of interaction between interested parties rather than on the limitations provided in copyright statutes and lawsuits. The paper argued that this protection extends to video games because they are participatory in nature, because modders do not stand financial gain, and because video games are inherently a different form of media. In order to back up this contention, the paper utilized an overall history of video games and intellectual property, an overview of relevant literature, and two specific case studies.
Considering this discussion, what can the future look like for the interaction between intellectual property and video game modifications? This paper’s perspective is that it is in the best interest of all parties to explore the ways in which video game modifications can benefit (both intrinsically and financially) video game creators, players, modders, and the community as a whole. This does not mean doing away with intellectual property rights for video game creators; rather, it simply implies being willing to explore the ways in which video game modders and players can have ownership, rather than only video game creators and producing companies. The specific ways in which this can be accomplished is certainly a relevant question for another research paper.
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