Works in progress: Bruce Boyden

Bruce Boyden, Copyright’s Middle Ground: The Role of the Player in Creating Video Game Audiovisual Displays. Players control what they look at, what they do (sequence of events), and the like. If the game developer wants to fight knockoff games which don’t reproduce the underlying code but do reproduce sight and sound, can it claim copyright ownership of the display?

Arguably, the display wasn’t fixed by the developer because it changes with play. Also, it isn’t original to the developer because of the player’s contribution. The relevant law was developed in the early 1980s for arcade games, and it was totally favorable to the game developer. There were enough constants and constraints determined by the developer that were the same in any play that the player didn’t have much affect on the display. The court treated them as essentially cartoons with minor player-controlled features. Judge Newman noted that future games might be different, but refused to draw any lines.

We have arrived at Newman’s future. Most games aren’t simple repeating sequences any more. Now players control camera angles and can change the display at any time.

Twenty years ago, Pam Samuelson went through the possibilities: (1) Player ownership of the display (weird result, because the player is more of a performer/athlete attempting to achieve some sort of goal, not an author). (2) Developer ownership of the display, despite conceptual problems. Samuelson argues that ownership of all the possibilities, even possibilities the designer hasn’t imagined – Red v. Blue, anyone? – overcompensates the developer. (3) Joint ownership – fails for the same reason (1) fails, since mostly the player doesn’t intend to act as an author. (4) No one owns the AV display. Samuelson criticized that result as underincentivizing distribution of works resulting from playing the game. Boyden thinks this is the most promising answer. It reveals something about what it means to play a game. Games are different from ordinary copyrighted work because players’ actions form an integral part of the work. Play is functionally equivalent to real-time perceptual experience of a book or film.

Games are meant to be played in the same way that books are meant to be read and films meant to be watched. Such activities are all outside copyright’s scope. Boyden analogizes gameplay and the thought that occurs when a person watches or reads a different type of work. His resolution explains the puzzle noted by some that imagination seems to allow people to infringe the derivative works right just by holding story variants in their own brains. Either copyright law is ridiculous, or there’s some sort of implied exception here – Boyden thinks it’s the latter. An ad hoc exception for brains. The user’s experience, which is outside the scope of copyright, is taking place in the brain for films and books; with games, there’s a feedback loop and the user’s experience is manifested outside as well.

Q: To what does the initial property right attach? What can the game developer claim as works of authorship?

A: Boyden got into the question by playing Counterstrike and recording demos. He wondered whether he owned the recordings. The answer he came to was that the game developers’ rights are not rights in an AV work. The only solution: they are some unclassified work under §102. They’re interactive works. The developer has a right in the setting, the scenario, like a set for a play or for an improvisational performance. Music, any scripted sequences, props, etc. – that’s what gives them a right to go after knockoffs. But they don’t have a right in the AV display per se. They may still have rights in the appropriation of the materials that appear in the background.

Q: So if someone makes a greatest hits CD of Halo and sells it, can Microsoft sue?

A: Microstar v. Formgen, with mod files, which are different – they’re add-on code. The hypo is different. Maybe it’s like a form of fan fiction. Cases involving movies might apply here (e.g., the 12 Monkeys case, where putting a chair in one scene leads to an injunction). Boyden finds those cases highly troubling.

Q: Is playing the game the same as playing the work? Aren’t you playing “with” the game, which conceptually separates you from the work? The developer is mixing the expression with functional features that allow it to work as a game. That might help us think about allocating rights and who’s generating the value.

A: He agrees there’s an accidental overlap between uses of the word “play” for DVD movies versus games. You can’t infer from the fact that games are being played that they’re being performed. Developer gives an implied license to play by sending the game out, and perhaps to play it publicly if it’s an arcade game. This was missed by an earlier court decision which found that playing a game was an infringing public performance.

Comment: Julie Cohen’s work on degrees of freedom and freedom to play and how they’re outside of the uses copyright owners should control is relevant here.