Beware the Berner Convention: Terms of Use and Social Media

Nearly everyone uses social media. It is difficult find people who do not. There are many platforms with different concepts and target audiences. But across them all, there are questions about privacy, copyright, and contracts. This arose when a makeshift legal declaration recently trended on Facebook:

In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version.

There are so many things wrong with that. It is a remarkable word to red ink ratio. But, this is an opportunity to think about social media from different angles. So many sites are “free". What’s the real cost of use? We will look at some of the legal issues.

First, there is no Berner Convention. There might be a Bernie Convention where people do this dance and wear cool sunglasses. No Berner Convention. There is a Berne Convention covering copyrighted works, and the United States and many other countries are parties. It is relevant to Facebook, but differently than the statement suggests.

“Declaring" your copyright to the world is meaningless. The Berne Convention directs that copyright exists when an idea takes form. Whenever a creative work becomes fixed, so do rights in the creator, regardless of any “declaration." However, there are things creators can do to improve the protection that copyrights grants. For example, filing for a registered copyright can be a great investment for something that shows a potential to generate revenue (and might be taken by someone else for that purpose): a video game, a book, a movie, a song. Vacation photos might not be worth the fee, since there’s likely no value to third parties.

Second, things like this come far too late, and don’t change the basic proposition of Facebook. Facebook’s easily accessible Statement of Rights and Responsibilities makes clear that, “you own all the content and information you post on Facebook," and:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

As long as your things are up on Facebook, Mark Zuckerberg is free to do what he pleases based on that license, but you still own the rights to the work in question. This is one of the click-wrap licenses we mentioned before. As long as the agreement is not unreasonable or unconscionable a court is unlikely to strike it down. If you are uncomfortable with this, you are not alone. But deciding whether these agreements are fair should happen before you click “I Agree". Moreover, without the clickwrap license, Facebook would be unable to function. They would have no legal ability to share the photo you uploaded with anyone, be that friends, family, random strangers, or that ex you’re trying to make jealous.

When you join Facebook or any other social media site, you enter a contract. A contract needs an offer, acceptance and consideration. Facebook offers to let you use their platform to connect with friends, share photos, and so on: those services are consideration. In return, you offer the consideration of letting them use your intellectual property. It is important to be realistic about how they might use it. Maybe one of your photos ends up in an ad. But what is much more valuable is information about you.

By tracking your behavior, sites get an idea of who you are and what you like. They turn to advertisers with this information and sell the opportunity to reach consumers who are apt for certain products. Some companies have figured out how to turn this into a sustainable business models, but many observers remain skeptical on its long-term viability. Warren Buffet’s investment partner Charlie Munger said pointedly, “I don’t invest in what I don’t understand. And I don’t want to understand Facebook."

The challenge of developing a new kind of business is risk. Facebook became ubiquitous rapidly. It remains to be seen whether that growth means they will be profitable in the future. No matter the era or the business, there is no free lunch. Money does not change hands when you sign up for sites like these, but they would not make the service if there was no cash involved. On balance, most people would probably decide that they are OK with sites using their information, provided it stays within certain bounds.

If you are not OK with it, take your profile and your content down. You cannot alter your agreement with Facebook by just saying so. Contracts can be modified, but both parties need to consent. The Facebook Terms of Use were unacceptable to the federal government, so the Government Services Administration negotiated different parameters with Facebook and many other sites. Like a copyright application for your vacation photos, this would probably not be worth your time and money. Even if it were, it seems unlikely you would be able to compel Facebook to negotiate these points.

This hoax did some good: it created a conversation about where these platforms fit in our lives. We share deeply personal things in ways that were not possible fifteen years ago, accessible around the globe. This convenience has its price. Is it right for you? Maybe, maybe not. Whatever you do, do not expect the Berner Convention to bail you out.



Zack Bastian is an official contributor to Law of the Game. A a recent graduate of George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

Your Nostalgia, While Charming, Is Illegal: the Problem with Fan Remakes

Some experiences are hard to reproduce. Things come along at a unique moment in your life and make an indelible mark on your brain. They become a standard by which you measure every other piece of art in that genre. There are albums that will always remind you of a wonderful summer, books that evoke the magic of new ideas, or paintings that give you life changing beauty. Revisiting art of this caliber can fuel you. It can inspire new creations, or place others in context. Truly special work is flexible, durable, and available for appreciation across generations.

Great video games are no different. Among RPG fans, there is a contingent that pines for the mid-to-late 90s, a golden era of console gaming. The genre was moving away from card tables in basements and into living rooms. The development art was incredible. Storytelling shifted from standard fantasy templates, to nuanced epics. Plots touched on mature themes like religion, corruption, and death. This reverence inspires animated adaptations, sequels, and re-releases.

Some take their fandom further. When it comes to fan-fiction, (writers using the original games’ plots to create sequels, alternate realities, and etc.,) rights-holders generally look the other way. (The Wikipedia article on the topic is not authoritative, but gives a good broad look at the issues.) First, fan-fiction is traditionally free. The writers do not make money. They just want to share their appreciation for the source material with others. The other problem with legal action against fan fiction is public relations. Someone who takes the time to write because of your work will be one of your biggest supporters, until you sue them.

Attempting to port, update, or create your own version of an existing game is not similarly tolerated. 1UP posted last week about an HD remake of Chrono Trigger. (Mark previously covered the related issue of fan sequels on Joystiq.) A group of programmers previously attempted to publish Chrono Resurrection in 2004. Everything was going fine, until they received a cease and desist letter from Square Enix. 1UP reached out to Mark and asked about Chrono Trigger HD. They wanted to know, what type of legal difference does it make if the programmers do not attach their names to the project or make a website? As he said, none, it is illegal. We will discuss this type of creation, a derivative work, and the options available for fans to keep things on the up and up.

Derivative works are an important branch of copyrightable material. They are based upon one or more already existing copyrightable works, and can include “translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted." That was a mouthful, so why not check out an example? If Halo is the copyrighted work, then the (late, lamented) film version is derivative, as is Red vs. Blue.

Protecting this class of copyrighted works provides a powerful incentive for people to create, because the rewards from creating are not limited to the work itself. If you find an audience, you have the option of expanding your creation into different genres, or continuing your story or universe in sequels. On the other hand, you can choose to not expand. Some people want to make a game and brand it on everything from paper plates to mobile apps. Some people do not. If you own a copyrighted work, it is your choice, and no one else’s. The absence of a lunchbox displaying your creation does give people the right to fill that hole in the market.

Since Chrono Trigger HD would be a derivative work, we will look at a case where the concept was applied to the gamespace, Lewis Galoob v Nintendo. Nintendo was unhappy with Galoob’s very popular Game Genie. For our younger readers, the Game Genie was a cartridge made for the Nintendo and other systems with a slot to insert another game. Once you turned on your console, the game would be ‘unlocked,’ allowing you to skip levels, gain invincibility, and so on. Previous cases had established that video games were copyrightable, so Nintendo hoped they could nip this type of modification in the bud, and maintain tight control over their products.

The Ninth Circuit disagreed, and concluded the Game Genie did not violate Nintendo’s copyrights. The court compared it to someone buying a book and then reading ahead to the end, or skipping to the credits of a movie. Just because your work is copyrightable does not give you unlimited control over how your customers use it. As Judge Fern M. Smith put it, “Having paid Nintendo a fair return, the customer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work." Since Nintendo had received a preliminary injunction banning sales of the Game Genie during the lawsuit, Galoob received $15 million along with legal fees.

While this gave some breathing room for the Game Genie, it is not a green light for Chrono Trigger HD. Galoob’s product allowed end-users to tweak their console titles without permanently altering the game. That is fundamentally different than releasing an upgraded version of an old title with better graphics. Nor does it help that the would-be programmers will not be selling their work at retail. Allowing that to be determinative of liability would be unfair to the creators. If they ever decided to release an HD port, their market would be harmed by the existence of a free version.

Keeping things anonymous and not building a website does not change the situation. It would certainly slow down the process of enforcement. But as Mark pointed out, Square Enix has other options available to protect their work. Cease and desist letters could be served on hosting companies, catching innocent users in the crossfire. That brings up a larger point about the direction of gaming culture and the internet at large. Torrents are a clever, 21st century solution to the challenge of mass file distribution. They, like the cloud, have many incredible legal uses.

They can be abused, and everybody gets hurt when that happens. Yes, it is frustrating to feel a company has let a title you love lie fallow. Many gamers have daydreamed about how they would make their favorites better. But trying to sidestep the law by torrenting an illegal derivative version shows why many rights holders are queasy about new file sharing techniques. The internet went crazy over the Stop Online Privacy Act. You could not go anywhere without being told, in all caps, that the law would turn the web into a police state or break the Internet completely.

If you think those types of laws are heavy handed, then please do not use torrents to share an illegal game. Every time we see BitTorrent and unlawful activity associated in the same sentence, it is a step backward for the technology. If you miss the golden era of 16-bit gaming, why not get together with some friends and make a title of your own? The market is there, as Xbox Live Arcade and the Playstation Store have shown. Legitimate distribution options are reasonably open; from Steam, to iOS and Android, to the Xbox Live Arcade Indie Marketplace, there is no shortage of ways to get a creation out there. To be blunt, if you are talented enough to make Chrono Trigger HD, you are talented enough to make an original game.

Many share your frustration that developers have not taken full advantage of their old games or localized every game overdue for translation. Using means that highlight the unsavory uses of useful technology is not a solution. In fact, recent examples like The Last Story show that developers and publishers may be listening now more than they ever have been in the past. Move forward, not backward.



Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

Zynga vs Everybody: The Battle Over Online Game Intellectual Property

As we have pointed out before, it is always useful to examine any game industry lawsuits by considering what they say about the business of buying and selling games. The longer you have been playing, the more you know how much things have changed. As the pixel count climbs upwards, so have the costs of development. It used to be possible for a few friends in a basement to build a console-quality title from scratch. Now, if you want to take full advantage of the power of the PS3 or the Xbox360, this is not realistic. Big games are now big business, with million dollar budgets and advertising campaigns to match.

That does not mean that there is no more room for the little guy. One of the biggest cost barriers to market entry is distribution, and the explosion in broadband has whittled down that block, bit by bit. Also, people have gradually figured out that a game does not need to knock your socks off with incredible graphics and effects to be popular. If people enjoy playing it, the design can be a throwback and still do quite well. The smaller development costs make such games ideal for slim, streamlined teams of programmers. And if it becomes a hit, the lower overhead means you could see a profit much quicker. The growing popularity of social media games gives you another venue to reach potential customers.

But where there is opportunity, there is bound to be competition. With competition comes conflict. At the center of many of these conflicts has been Zynga. The company has published popular games for social media and mobile phones, including Mafia Wars, FarmVille, and Words with Friends. Along the way, they have also amassed their fair share of critics, particularly smaller studios who argue that Zynga has ripped off their work. For example, see this graphic depicting similarities between NimbleBit’s Tiny Tower and Zynga’s Dream Heights. Or, this one from Buffalo making similar complaints about Zynga Bingo. But is what Zynga does illegal? Probably not. In this post, we will discuss why that is the case, and examine a pending cases with a stronger potential for success.

To understand the nature of copyright infringement, you first must grasp the difference between an idea and an expression. For example, an idea would be a “game about farming." The expression of that idea would be the game itself, complete with source code and unique graphics. Ideas are not available for copyright protection, but expressions are. (Ideas are protected by patents, which have been used to protect game designs in the past.)To summarize, you could not sue someone simply because they made a “game about farming" after you did, but if their game substantially copied your source code you would have a strong case. Our fearless leader Mark outlined a lot of these issues in interviews with Opposable Thumbs and Industry Gamers, along with a previous post on similarities between Dante’s Inferno and God of War. To put it bluntly, So many of the new social games have created their own “sub-genres" that are narrowly defined such that similarity is inevitable.

It is worth noting that copyright protects traditional board games as well as video games. Board game aficionados have created some legal resources on the issue, but the basic concept is the same. The copyright protects the expression (for example, the design of the board), not the game’s mechanics. Some of you may remember this issue in the Scrabble and Scrabulous dispute from 2008. The issue there was not only the trademark similarity, but the direct copying of the game board itself. Words with Friends avoided this design mistake, and therefore avoided an infringement suit.

Copyright law is far from perfect, but there are reasons to believe this level of protection is appropriate. Copyright is intended to serve twin goals that sometimes are in opposition. Ideally, it will reward creativity by protecting the right for creators to be compensated for their work. At the same time, it will encourage innovation, leaving room for people to experiment using work that has come before as inspiration. A great example of this dichotomy is the mechanical license. Over the history of music, one of best ways for a new artist to reach a large audience is by playing a popular song the listening public already knows, called a “cover". Some of the best covers are not direct reproductions of a classic, but instead add their own quirks and sounds to the mix. For instance, compare Pavement’s original Spit on a Stranger with Nickel Creek’s more folky take.

Where does the mechanical license come into play? Imagine you are a young, developing artist with only a little money in the bank, and the song you want to cover is by an established band. If you tried to negotiate with them directly, the bigger band would be at a huge advantage. They could either refuse to let you use their work, or make the license prohibitively expensive. The mechanical license solves this problem by allowing you to cover a copyrighted song provided you pay a set statutory rate per copy, distributed by the Harry Fox Agency. While there is not a parallel concept in the gamespace, the theme of encouraging innovation crosses into both formats. As Mark pointed out in his interview, if a game company had received intellectual property protection (patent) for the concept of a “platform game" in general, games today would be much less rich and diverse. That basic concept has been repeated (or “covered") millions of times, and the successful titles that borrowed that concept added their own innovations bit by bit.

So where could Zynga be in trouble? First, there is the case of Personalized Media Communications suing for patent infringement. A patent is very different animal, as noted above, protecting an actual idea. The subject of a patent must be the invention of a “new, useful, and non-obvious process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof, and claims that right in a formal patent application." So, for Personalized Media Communications to succeed, they would need to show that Zynga treaded on their inventions that use “control and information signals embedded in electronic media content to generate output for display that is personalized and relevant to a user." We here at Law of the Game love engineers, but we are not engineers. So all we can do at the moment for this particular case is pledge to monitor it and pass along information once it has been translated for our liberal arts educations. Another case was filed by GameTek, LLC, and Mark offered some commentary on this case on Ars Technica, which you may want to take a look at. Generally speaking, as he notes, there will be a question of fact as to whether this patent was filed before the invention was used in the real world, and there is some question about the patent’s validity for this reason. More importantly, as the claims in the patent go beyond the games space, there is a potentially big impact for a victory by GameTek. It presents an interesting situation where the idea of FRAND licensing may be applied outside of the standards setting process based on the potential impact for the whole mobile app ecosystem, not to mention the potential antitrust issues, either of which may lead to compulsory licensing.

Another case that could spell trouble for Zynga is the lawsuit by SocialApps LLC. This involves the enormously popular Farmville game. SocialApps alleges that after releasing their title myFarm on Facebook in November 2008, they were approached the following spring by Zynga, apparently interested in acquiring the intellectual rights and code to their work. As part of the negotiations, SocialApps shared their source code, at which point they claim Zynga became non responsive. Zynga then released Farmville in June of 2009. In early February, the suit survived an attempt by Zynga at dismissal. If it progresses further, Zynga may be faced with the choice of either settling out of court to cut their losses, or letting it go to trial with the risk of extended bad publicity and potentially greater damages. Obviously, taking source code would likely be an infringement, and the facts of this case present that as a real possible finding.

For the indie developers without such complex claims, their best option may be exactly what they have done so far – call attention to the issue through publicity. Zynga has an enormous infrastructure and large audience in their corner, but the internet has had a long history of championing the little guy. You may draw customers your way by pointing out that you believe your work has been borrowed. As long as Zynga does well it would be unrealistic to expect their business model to change. Even in new markets with easy opportunities for entry, it is inevitable to see one party become the 800 lb gorilla. Whether Zynga has actually done anything that could hurt their status remains to be seen.



Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

More on Kim Dotcom and the Fight Over Cyberlockers

In late January, Law of the Game took a look at Kim Dotcom and Megaupload. Bloomberg Businessweek released a superb profile of the file-sharing baron. It is worth checking out. The authors fill in Dotcom’s back story, and what a story! For example, the piracy bug bit him young: he was selling copies of computer games to friends before he reached junior high school. This was also not his first encounter with the wrong side of the law: he was convicted in 2002 of insider trading.

The article does not limit the narrative to Kim Dotcom’s, brazen, bizarre antics, although there are enough for a novel. They also include a discussion of whether or not the shutdown was overboard. The parties take the positions you would expect. Cary Sherman, Chairman & CEO of the RIAA calls the story a “powerful message” to infringers. Julie Samuels of the EFF says that creators are seeking to “stem the growth of new business models instead of using their time and energy to compete. They’re working to harm innovation and consumers and artists who are trying to find new ways to connect with those fans.” The authors also point out that there has never been a case of inducing copyright infringement reaching the level of criminal liability. To dig deeper, we will begin by examining one of the most famous inducement liability cases, consider how the available facts compare, and then comment on whether this case really is an attack on cyberlockers.

In 2005, the Supreme Court considered inducement liability for copyright infringement in MGM v Grokster. Grokster was a file-sharing utility, but unlike its predecessor Napster, it was built on a decentralized architecture where no central list of the files was kept. The software acted as a link between you and the user with the songs you wanted. Grokster, playing this passive role, did not have actual or constructive knowledge that infringement was taking place, nor did they materially contribute as users searched for the files. Grokster attempted to claim the Betamax defense, arguing that if the product was capable of substantial non-infringing uses, it could not give rise to contributory liability. Grokster is capable of non-infringing uses, and so the developers claimed they were not liable.

In rejecting that argument, the Court discussed inducement liability. If you distribute a product promoting that it can be used to infringe copyrights, it can be enough to show liability. Promotion of infringement has to be by either clear expression or other steps showing you meant to encourage it. Considering Megaupload, the indictment provides plenty of emails and more that scream inducement, like the incentive program. People have pointed out, that there is a big difference between civil and criminal cases. Jennifer Granick notes that secondary liability has never been enough to create criminal liability. [The pending Rojadirecta case has the Second Circuit considering that very issue. Can linking to an infringing stream be enough for a criminal offense?] The counterpoint to Ms. Granick, Derek Bambauer, says the principals look very guilty, but agrees an expansion of criminal liability is troubling. Ms. Granick also admits that there may be enough proof that Dotcom and his compatriots directly infringed enough to make secondary liability less of a problem.

We also must remember, a money laundering count was included in the indictment, but not fleshed out. The federal government has repeatedly (online poker shutdown, new pre-paid access rules, etc.) made clear they are concerned about technology supporting criminal enterprise. There may be evidence not yet public showing Megaupload “washing” dirty cash, providing heavy ammunition for the prosecution. Beyond that, there is no indication that the government has the intention or appetite for a broad offensive on cyberlockers. It is safe to assume that most companies offering cloud storage are not an insane, self-aware scam run by a James Bond villain. It is good that people are concerned and talking. Emphasizing the civil liberties at play is very important. The issue of what happens to the non-infringing files still on the Megaupload servers raises legitimate questions about the rights of people who were not using the service improperly.

It is possible that this is part of a large push against cloud services. But there is still a great deal we do not know about the Megaupload case. Until things become clear, we will be following closely.


Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

More on Social Game Cloning

I was interviewed for a piece on Ars Technica, which went up this afternoon.  It's another good read.

Check it out!

Piece on IndustryGamers

I was recently featured in an interview on IndustryGamers regarding the recent social games "infringement" issues (Zynga/Nimblebit, SpryFox/LOLApps, etc.).

Check it out!

Megaupload Shut Down, Provides Basic Lessons on Bad Business

It’s been a crazy week with many crazy stories. Fears about the Stop Online Privacy Act created a massive online response, thrusting copyright reform into the national conversation. But while people were speculating on the future of intellectual property, the Department of Justice shut down Megaupload. Over the last five years, Megaupload had grown in popularity as an online “cyberlocker”. As broadband use explodes, the value of these companies is obvious. They are a user-friendly FTP where anyone can place files on a central server, to access them from a different locations or share them with others. When use a cyberlocker to store your baby photos or send a song you wrote to friends, there is no legal issue.

There might have been pictures of a two-year-old’s birthday party or basement demos somewhere on Megaupload, but review of the indictment made public this week shows the site knew their bread and butter was piracy. Although they had disclaimers on their site that users could be punished for uploading copyrighted content, the indictment claims that there was little, if any, enforcement. Instead, Megaupload acted to encourage infringement, primarily by creating an Uploader Rewards program that offered cash payments to the users who provided the most popular files. This, along with many more bad decisions detailed in the indictment, made the shutdown seem like an inevitable event.

There are many layers to this situation. It is a fascinating and frequently entertaining story, complete with outsized characters. One of the defendants Kim Dotcom (formerly Kim Schmitz) was living in China and New Zealand, and drove luxury cars with “GOD” license plates. Megaupload had an internal search engine to pluck whatever they liked from the servers, and one exec e-mailed another complaining his stolen copy of the Sopranos was in French. Employees described themselves as a modern day shipping service for pirates. In the wake of the shutdown, many have expressed concerns that this might signal an aggressive stance towards other sites that serve as cyberlockers. While it is unclear if that is the case, there are some lessons we can take to heart.

The federal government is very serious about delivering heavy blows to electronic money laundering, and are out to discourage anyone (including foreign companies) supporting it. Poker Stars, Full Tilt Poker, and Absolute Poker all tried to avoid the Department of Justice by operating offshore, but were sunk last year. The Treasury’s new Prepaid Access rules have enhanced company obligations to verify customer data, collect information, and comply with law enforcement. This is a sustained pattern that has continued with Megaupload, as the third count in the indictment is for money laundering. It appears it has again been proven that doing your due diligence on your customers and making sure that you do not let suspicious transactions go unnoticed will always be a good investment of money and time.

This case seems uniquely egregious, and it may be that worries about a wider crackdown are exaggerated. Most companies are not going to present such an obvious case for prosecution. Megaupload’s border hopping executives built a business model around attracting stolen content by offering cash incentives to users whose uploads produced traffic. They reveled in their criminality and invited the attention of law enforcement. There is a push to address copyright law and make broad, substantive changes, but most companies offering cyberlockers are not going to be waving a giant flag saying “SHUT US DOWN” like Megaupload did.

As we recently discussed on BitTorrent, the struggle of the government and the courts with file-sharing is part of a broad pattern. There is no widespread agreement on how to deal with these issues, as the hue and cry over SOPA proved. But it is hard not to be encouraged by the emergence of technology law in the national conversation. Last week, the two biggest stories were a piece of legislation that had yet to make it to a vote, and the shutdown of Megupload. If it gets people thinking critically on how to help the law catch up with modern technical realities, everybody benefits. Except Kim Dotcom. He is (probably) in big trouble.

Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

The Ongoing Legal Battle Over Bit Torrent Gets More Interesting

Since the beginning of its existence, BitTorrent has been a lightning rod for controversy. Comcast choosing to slow down or “throttle” the service’s traffic was one of the first shots fired in the ongoing battle over Net Neutrality.

This is not just a problem here in the States. Canadian provider Rogers ”throttles more than any other internet provider in North America”. This issue is not going away. It speaks to many fundamental questions on the future of the internet, and also the future of video games. BitTorrent has exciting, perfectly legal applications. You can use it to quickly and easily transfer a homemade game to a friend, or share your own machinima. The downside is that, thanks to its ample capacity and dispersed load, pirates have thrived, distributing illegal versions of games for free. That bites into already precarious profits and reduces the incentive developers have to make the new games we love.

This profound problem got a new wrinkle when TorrentFreak recently claimed they traced BitTorrent downloads to the Recording Industry Association of America and US Department of Homeland Security. Using YouHaveDownloaded.com, TorrentFreak alleges they found that six unique IPs within the RIAA and more than 900 at DHS downloaded illegal materials from BitTorrent. TorrentFreak is undeniably partisan. The blogger who provided these claims uses an alias (presumably due to fears of reprisal). But, it is not hard to believe that employees at large organizations get copyrighted materials for free. To be fair, we don’t know why these files were downloaded or what was done with them. It’s possible it was for personal use as most coverage of this has implied, while it’s also possible it was downloaded as part of an investigation, which may have even been at the request of the rights holder. All we know is the files were likely downloaded by someone at those IP addresses.

There is no consensus on how to deal with the issue. RIAA abandoned the idea of suing individual downloaders long ago. Not so in Europe, where CD Projekt served settlement offers on Germans accused of pirating a copy of The Witcher 2. Others have chosen to focus on communities like the Pirate Bay in order to make a bigger dent in the infringement. Pirate Bay has been cited by supporters of the Stop Online Privacy Act as proof of how necessary the legislation is. (Legislation which, incidentally, may also ”break the internet.”)

TorrentFreak’s claim they have found foxes in the henhouse is interesting, it does not answer any questions. Is it embarrassing for the RIAA? Yes. Regardless of what the real reason may be here, the publicity’s implications have been negative in a pretty much universal manner. But, it does not solve the unresolved problem of how to confront the clash between copyright owners and the easy sharing the internet allows. Law of the Game will keep you updated of new developments as they become available.

Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

LGJ: Morrowind Mod Mayhem

The latest LGJ takes a look at the dust up over the Morrowind 2011 mod pack that surfaced briefly, only to be taken down.

Read on!

LGJ: Blizzard, Cheating, and Copyright Infringement

This LGJ looks at Blizzard's latest use of copyright infringement to thwart cheaters.

I did want to note, after a few comments about this, that I unfortunately haven't had a chance to play StarCraft II (other than the beta), so I didn't talk specifically about the cheats built into that game. The end is more a big picture analysis of inclusion of cheats, not a condemnation of Blizzard as some have taken it.

Read on!

LGJ: Dante's Infringement (or lack thereof)

This week's LGJ addresses the ongoing forum debate on whether Dante's Inferno actually infringes on God of War.

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LGJ: Wait, it's not a derivative?

This week's LGJ takes another look at NBA Jam and examines a rare example of a sequel potentially not being a derivative.

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LGJ: IP Police, Arrest this man, He talks in torrents

This week's LGJ goes into the reported 'Pirate Finder General' in the UK and what could follow in the US.

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LGJ: 3D Dot Game Infringement

In this LGJ, I talk about the allegations of 'copyright infringement' in 3D Dot Game Heroes.

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LGJ: If 24 songs = $1.9 million, then 1 game = ?

On this week's LGJ, a discussion of the RIAA's recent victory and what it may mean for statutory damages across the board.

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