In the hopes of continuing the discussion from Wednesday’s guest lecture as well as Jon’s portion of the class, Brendan and I have outlined a few key topics below. If anyone has any additional thoughts or questions on these matters or anything else related to the class, please feel free to get involved here.
At the end of his talk, Ian discussed the double standard with which parody is permitted in media. From his experience developing games, and specifically a game based on a TV franchise, it seems that some things that might fly in consumption media (TV/film) may not be permitted in interactive media (video games). There does not appear to be any clear precedent from the courts on this issue, rather courts have recently been strong advocates of technological and media neutrality (i.e. these rights should apply uniformly regardless of the medium – see SCC decisions in CCH; ESA v SOCAN; Robertson v Thomson, etc.). Do you think this double standard is perhaps a risk averse strategy (i.e. overly cautious approach to an issue with uncertain rules)? Does it perhaps have something to do with the interactive nature of video games as compared to TV and film?
The Fair Use/Dealing exception of Parody also came up in the context of creativity. Specifically, how important is the right to parody to the developer when creating a game? With the growing popularity and success of indie game developers, there are many titles with clear similarities to classic large studio titles. Some examples that come to mind include Super Meat Boy which has several pop culture references and scenes clearly intended to imitate popular scenes from classic games; FEZ which uses various Tetris-shaped artwork; and Braid which incorporates a lot of Super Mario elements with modern graphics and some unique game mechanics. Patent/trademark/copyright in game code aside, at what point does the parody of other work become simply copyright infringement?
Right to Mod: User Generated Content
As it stands today, copyright law appears to recognize some right (or at least a lack of a competing right) for the user to modify game content (iRacing; Game Genie; Micro Star) but that the scope of any such right is dictated by the terms of the EULA/TOS as well as DMCA prohibitions (note also new Copyright Act provisions that prevent circumvention of digital locks). Absent any finding of unconsionability in these contractual terms, the right to mod will only exist when and where the developer permits. If, however, creating modified game content can somehow be protected by freedom of expression, would the user’s Constitutional right alter what the developer is capable of enforcing contractually? I think this is the point Jon was alluding to at the end of his lecture so please clarify if I missed the mark here.
What is also interesting is the trends in what developers permit the user to do with their software. From a personal perspective, I recall a time when map/level editors were standard features of any game and sharing your creations was not only permitted but encouraged (particularly in the RTS and FPS genre). It seems with the proliferation of DRM this has become less and less common or, at least, heavily regulated and controlled by the developer. If this is true, why do you think developers have moved away from a feature that provided free marketing and free programming for new content? Alternatively, do you feel this is an inaccurate observation?
This is a topic that unfortunately did not get much time for discussion on Wednesday but that has been touched on briefly in previous classes. The issue is whether a user has any right to claim ownership of virtual items. This is particularly relevant in the context of micro-transactions and the “pay to win” format of online games. Games like Family Guy Online and Mechwarrior: Tactics (Roadhouse Interactive) both have in-game shops where a player can spend real money on virtual items (weapons, skills, character archetypes, maps, etc.) to use in the game. This is an increasingly popular game modal in an industry that has had to adapt to the ubiquity of piracy. By providing the game for free, the developer makes their money from users’ in-game purchases. Keeping in mind the traditional justifications of property that already seem to have some application to virtual goods (recall Ken’s discussion of Locke’s labour theory, as well as the Utilitarian and Personality theories), does the direct payment of real world money for specific virtual goods further endorse the idea that the user somehow has property rights in these items? Is this claim (if one exists) irrelevant given that the EULA/TOS for any modern game vests these rights in the developer?