Jon Festinger, Professor, Center for Digital Media, University of British Columbia
History with Grand Prix—fell in love with a game that wasn’t successful but that had a passionate fandom and built a multiplayer version, changed the art. Community was creative, sometimes crazy—300-page threads on the accuracy of a race track and mini-mods to ensure the signs’ accuracy along the entire racetrack.
Think about education as modding: building on and citing the work of others. The common law is also modding: building on the work of others. Series of precedents where people have tried to argue that their submissions to courts should be protected—that their argument should be protected against copying. That copying by a law library should be infringement. Canadian courts: user rights prevail.
Two notions of creativity: the first is deeply built into our society—uniquely personal, special, undiscovered country, wilderness, discover yourself by going where no one has gone. Bible: “Let us make man in our image, after our likeness” G-d said—creativity as very personal (but notice it’s also very much copying!). The second: everything is a remix, not uniquely personal. Carl Sagan: “If you wish to make an apple pie from scratch, you must first invent the universe.”
However, we don’t actually accept each other’s creativity and abilities, or at least not that easily. Everyone here thinks they’re creative, and that’s true. Because that’s at the heart of being human. But honestly, you have a hard time acknowledging the creativity of your neighbor, which is also human. Just shouldn’t build legal principles around that.
Does the law allow modding? He thinks the case law doesn’t bar fair use. iRacing v. Robinson, (Mass. 2007); Blizzard v. BnetD case is the most difficult. The advocate for Blizzard there said that the case didn’t involve new creation—since they were just making the game playable on another server.
What should be done? Raise thresholds for IP protection, allowing for more reuse? Follow Canadian SCt and broaden user rights. His particular favorite: imagine if Sony v. Universal didn’t exist and everything digital was seen as a form of tool-enabled time-shifting—context-shifting in the digital age. Right to create/mod as a creative/expressive right rather than as an IP right/protection. A right to create, rather than a right in the output.
Mark Methenitis, Corporate Counsel, MetroPCS
Copyright was designed in an analog, high copy costs environment; infinite replicability with no loss of quality didn’t exist before digital. Storage and distribution were the next dominoes to fall. True double-edged sword for both producers and consumers—lots more content, but high lure of piracy.
Another problem: first sale. Software not subject to first sale in Autodesk case. Will Kirtsaeng be any help? (Probably not.) Barriers to entry are at an all time low—ease of distribution and ease of creating a professional quality product are at an all time high, but so is ease of infringement. Statutory damages remain unchanged and perhaps need to be revisited.
What is a prosumer—consumer who is a producer—to do? Work within content usage rules; Microsoft did these with Red v. Blue, and others followed. Open ended noncommercial license with some restrictions. Not perfect, but better than a C&D. Reality: few commercial content creators will loosen reins on rights to derivative commercial works. It’s an opportunity for exposure, but not for a flat licensing fee to create derivative works for sale.
Reform: source code is independently copyrightable from the end work. This makes sense in music, where one sheet of music may result in 3 different performances by 3 different performers. By contrast, source code will be the same no matter who compiles it. Software copyright needs some level of protection, but maybe a shortened term for people using, say, Mario Bros. to create something new and different.
Copyrighted works no longer exist in isolation: TM and copyright are intertwined especially in games, movies, and TV. The franchise/derivative work are the key rather than individual works. Term extension is also increasing the risks. There are no differences between the registered marks and the copyrighted works—so you’re still at risk using Mickey Mouse if he ever enters the public domain. (Dastar would be your defense, I’d think.)
He suggests some sort of hybrid: copymark, requiring some sort of fame but also subject to abandonment. Solves term extension issues for stuff that isn’t presently in use. (This seems like a bad idea to me, especially if courts continue to be aggressive in applying Dastar.)
It’s not just Mickey—many things are 25 years old and have lots of cultural meaning—Mario, Simpsons, Star Wars, James Bond, the Simpsons, Batman/Superman. Time will tell what else moves in that direction—video games, Harry Potter, Toy Story.
Moderator: Greg Lastowka, Professor, Rutgers School of Law
Is there something special about videogames lending themselves to user-generated content?
Festinger: thinks so, because there is no game without the gamer. (Seems to me also true of movies—if a screener shows in a forest and there’s no one around to hear …?)
Methenitis: Interactivity: consumer is doing something creative in playing the game, and it’s become easier to share that over time. You can’t create your own film in response. (Really?)
We will never get to the utopia of total freedom, but we can find a middle ground that is more palatable to everyone with some nudging.
Festinger: It’s not just a balancing act. Even the user rights that you might have can be wiped out with no recourse under BnetD by an end user license agreement/terms of service. Notion in Europe/Canada of moral rights, not commercially based but which follows abuses and misuses of creativity and deals with it that way—he’d like to see that used for gamers.
Lastowka: a moral right to access?
Festinger: yes, and also a moral right to block—an artist sold some ducks to the Eaton Center, which put little Santa caps on the duck mobile, and the artist successfully sued. He has less objection to saying “that’s not what my art is for” than to saying “you’re making money and that’s wrong.”
Methenitis: not the US tack. Batman movie included an image of a sculpture attached to a building; author lost his infringement/moral rights claim.
Lastowka: some companies do offer broad licenses for noncommercial creativity. If the market supports this, why not make that a default rule? Why not commercial?
Festinger: TwitchTV: walkthroughs of games showing all the game elements; money is being made. His instinct is that noncommerciality is a good line for default. Game companies often don’t want to shut down the fans. Microsoft Flight Simulator: allowed mods to be commercialized; industry evolved around modding MFS. Microsoft shut it down; the modding community reorganized around the remaining.
Methenitis: the ones that seem to get by with commercialization are ones doing more than showing the game—criticism or commentary is required, unless a news organization with a preexisting relationship with the game companies is reporting on the game. Microsoft moved towards noncommercial/commercial divide with Red v. Blue.
Q: should modders have rights against commercialization if they don’t want that?
Festinger: Duke Nukem case: yes, they should.
Methenitis: credit is important; the question is how the game/mod was released, under what license?
Q for Methenitis: why is your idea a good one?
Methenitis: because being in the public domain doesn’t mean you’re free to use it, because of trademark. For users, there is the ability to make high quality stuff, and there is a potential for confusion/tying the company to the new creation—dilution, tarnishment that harms the brand—what if it’s obscene? Could be hard to disprove connection to someone else’s work. (If only there weren’t dilution exceptions for expressive works.) Would need a defined fair use regime that would also have to be a copyright/trademark hybrid.
Lastowka: Minecraft has tons of mods. Is that a sign of the future?
Methenitis: hard to tell. Note that, like Lego, you could create infringing content with Minecraft.
Festinger: does think Minecraft is part of a shift about how to think about gaming. The amount of content from the original developer v. amount of content out there really favors right to mod. Minecraft has changed how he teaches law—provides a territory in an environment that students can build things in.