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.”
Idea/expression dichotomy.
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.
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