Friday, July 6, 2007

Copyright 2: Electric Bugaloo

When last we discussed copyright, I evidently left more than a few issues up in the air, as evidenced by the number and length of comments on the Copyright issue. And, as promised, I finally have enough of a lull in the news to address all of the issues from those comments. So consider this What Everyone Needs to Know About Copyright Part 2.

Idea vs. Expression

One thing that, as was pointed out, is clear to some and not to others is the concept of idea vs. expression. As I stated previously, copyright only protects the expression. An easy way to examine this is to think of any fiction novel. That novel has many elements, the actual text, the plot, the characters, the theme, the tone, etc. Copyright certainly protects the word for word expression of the book. Copyright also protects the combinations of elements of the book to the extent that they are improperly appropriated (a good case for reference is Nichols v. Universal Pictures). It's a substantiality of the copied elements type test.

It is, unfortunately, extremely subjective and complex. But to give an example, if I took a book and changed the names of all the characters, but left the rest in tact, I would likely be improperly appropriating the book. On the other hand, if a book I write has a few character names in common with another book, and the rest is wholly unrelated, it would likely not be an improper appropriation.

Rights Attaching at Creation

Another issue that was brought up was when rights attach. This is, again, complex, especially in an international environment. In the US, common law copyright attaches at creation, and federal copyright protection attaches at registration. Other countries each have their own laws in this regard. However, certain treaties may revert back to the laws of the original creator's state as applied to other nations. I am specifically referring to the Berne Convention. To date, I haven't found a good international copyright law comparison chart, so I will unfortunately have to leave this issue unanswered to that extent.

Copyright, Licensing, and the EULA

The other major issue that was brought up was the issue of copyright, licenses and EULAs. This gets more than a little complicated, so I will try to break this down into smaller issues.

Backup Copies

The backup copy rule embodied by section 117 is very limited in nature. It allows you to make one backup copy of a piece of software that you own for backup purposes only assuming you either transfer it with the original or destroy it if you transfer the original. Where this becomes more questionable is with console games, as they are "computer programs" but they aren't for use in a personal computer. I would tend to think that no court would penalize someone for making a backup copy of a console game, so long as it is purely for archival purposes.

An interesting issue is that section 117 only authorizes backup of a program, not music or video. In the context of a game, I tend to think that the elements are inseparable. However, that does mean the section doesn't technically allow you to archive your, say, iTunes files. This presents a further peculiarity, since Apple tells you (ad nausem) to backup your iTunes files. I doubt the RIAA will be knocking down anyone's door to stop this practice, but it does demonstrate as least one element of the copyright law that still lags behind reality.


The concept behind buying a copy of a game is rather complex, so I think it can be more easily explained by comparing it to other mediums. When you buy a CD, you have physically bought a copy of the music. However, you can only use that music for personal enjoyment. In fact, even bars, hotels, and retail stores have to have a separate license to use that music in their establishment (and groups like ASCAP do police this heavily). The same goes for using music in, say, a TV show or movie. Taking another medium, when you buy a DVD, you have bought a physical copy, but its use is limited to personal watching. You can't then take the DVD and show it to an auditorium of 500, or take scenes and splice them into another movie you are making. On the other hand, if you want to use the disk, CD or DVD, as a coaster or Frisbee, you are free to because it is making use of the storage medium, not the copyrighted work itself.

A game is much the same as a CD or DVD. Yes, you have purchased a copy. But its use is limited to personal play on the system you bought it for. Machinima is a violation of that limited use without a separate license. The major difference is while the use of music and video is fairly well defined, the use of game software is more amorphous, and more analogous to computer software. Hence, rather than using well established warnings, a complete End User License Agreement (EULA) is included. I actually did an informal poll among some Xbox 360 and Wii games I had lying out. While none of the Wii games had them, some of the Xbox 360 games had the EULA (or a portion thereof) in the instruction manual.

The EULA, Copyright, and Machinima

The last big issue the table is a little more on the EULA as it relates to machinima. This is an area of the law that is rather murky as there is no case law I know of on the topic. A hypothetical similar to the following was posed:

If a machinima is made using a game engine but none of the games original maps, character models, etc., it would violate the non-commercial use of the EULA, but is it a derivative work?

Well, this is about the most unstable ground for a machinimist to be on. It could be considered a derivative work, but there is no firmly established framework to look to on this matter. Think of it this way, using the underlying engine to create the game that is filmed is creating a derivative of the original. The machinima is then a derivative of the derivative.

Moreover, you can't avoid the EULA. Going back to the previous, you own a copy of the game and yet it can only be used legally in a limited scope. This is typically dictated by the EULA. By virtue of using the copy of the software, you have agreed to the EULA. Of course, those EULA terms still likely need to be reasonable to avoid being struck down.


Copyright is highly complex. It is moreso on newer mediums of expression than it is on more established mediums, and until the courts weigh in on the application of copyright to many of the issues I have covered, there may not be any real clarity. The best advice I can offer you is to try to use common sense, but if you are getting into a gray area (especially where commercial uses are involved), please consult an attorney. It's better to pay a few hundred or thousand in legal fees for advice than tens or hundreds of thousands in defending yourself in court and/or possible fines and judgments.


Alan De Smet said...

Perhaps I'm misunderstanding you, but the claim "But its [a game's] use is limited to personal play on the system you bought it for," seems wrong. So long as I'm not making copies or engaging in public performance (that is, making personal use, as you say) exactly how I make use of a book, a CD, a DVD, or a game is irrelevant. (Assuming we're sticking to pure copyright, mind you. Things get weirder when you have to consider the anti-circumvention parts of the DMCA.) I might play an audio CD in a CD player or in a computer. I might play a PlayStation game in an PlayStation, PS2, or an emulator.

Furthermore, you gloss over the validity of EULAs which aren't visible until after the user has purchased the product, can trivially be overlooked, and that a user does not explicitly agree to. For computer software there are court cases backing so-called "click wrap" EULAs in which a user has to at least click "YES" or "I AGREE" to indicate they have been presented with and they agree to the EULA. But I'm not aware of any cases supporting EULAs which are not actively presented to the user. The majority of console video games I have sitting around don't have any EULA, so it's clearly reasonable to assume that a given piece of game doesn't have one. Since I frequently don't even bother to open the manual, I often have no idea if a EULA is present or not. I've never had a console game specifically tell me about the EULA. As I don't need a license of any sort of engage in personal, non-copying use of a copyright protected work, what is the legal basis for my be limited by the EULA? By any reasonable interpretation, I'm only restricted by basic copyright law, and copyright law doesn't have implied licenses.

Anonymous said...

I'm not quite getting how Machinima that does not use any art assets from the game could be considered derivative. The only copyrighted material would be the software itself, that is the game engine. If you are only distributing a video, you are only distributing something made with the software, not any part of the software itself. I don't see how this is any different than distributing a document you made with Microsoft Word.