Table of ContentsIntroductionThesis and OutlineAn Introduction to Video Games and CopyrightVideo Games: What Are They?Legal Protections Intellectual Property on Video GamesThe Role of ModificationsThe Importance of Video Games in Intellectual Property LawPerspectives on Intellectual Property Law and Video GamesTwo PerspectivesAcademic PerspectivesPerspectives on ModdingCase Studies on Intellectual Property Law and Games videoConclusion “Modding culture can be considered a type of participatory culture, in which fans play an active role in restructuring and adjusting storylines. and story arcs for their favorite media products. »Say no to plagiarism. Get a tailor-made essay on “Why Violent Video Games Should Not Be Banned”? Get the original essay ~ Hector Postigo, First MondayIntroductionIn the modern world, where new media content is created every second of every day, intellectual property rights can be a tricky issue. The problem becomes even more complicated when aspects of intellectual property law such as software, code language, images, and full video games are introduced into the mix. As with any area of ​​law, the legal code surrounding intellectual property is constantly evolving – and rightly so. If litigants, businesses, and individuals want to stay abreast of developments in software, technology, and the way media is consumed, the law must change and adapt accordingly. One of the clearest examples is the intellectual property laws surrounding video games. Video games seemingly fall somewhere between speech, artwork, and intellectual property, and are therefore more difficult to approach (and protect) from a legal perspective than other, more difficult pieces of intellectual property. clear. More specifically, the culture of “modding” found in the video game industry poses an interesting problem for anyone concerned with intellectual property rights. Do modifications to existing video games constitute fair use or do they violate copyright? This research paper seeks to answer these questions, as well as the intellectual property implications of video game modding. Video games have been on the rise ever since the first invention of software and code. This has been particularly true in the current century: video game sales nearly tripled (from $5.5 billion to $15.4 billion) between 2000 and 2014 and continue to rise (Statista 2014). . This statistic alone makes it clear that video games (and their associated modifications) are an important point to consider when talking about intellectual property. Specifically, user modifications (“mods”) in video games have posed a unique problem for the legal code of intellectual property. Simply put, a mod occurs when a user makes an unauthorized modification to the video game's source code and changes either the gameplay, visuals, or outcome of a game. These modifications currently fall into a "gray" legal area " and their validity depends entirely on the perspective of the owner owner (i.e. Blizzard Entertainment). As of now, there appears to be no legal consensus regarding the status of video game mods in relation to intellectual property. The main question of this research paper is therefore: video game modsdo they inherently violate intellectual property rights, or is there case law and legal perspective allowing for their legal inclusion? Thesis and Outline Based on a review of case law, literature and contemporary perspectives, this article concludes that modding represents the future of the interaction between video games and copyright (intellectual property). This research article takes a ludological perspective on intellectual property as it relates to video games, focusing on the potential for interaction rather than the limitations of copyright laws. In addition to supporting this main thesis, this research paper will address the topic as it relates to derivative works, fair use doctrine, and how the implications of this thesis could enable integrated and regulated activity for mods. Before discussing the legal implications, the article will discuss the history of the interaction between video games and copyright. This will serve as the basis for the rest of the document. Second, the article reviews the existing literature on the subject – including so-called narrative and ludological perspectives on video games and intellectual property. Third, the article will turn to three specific case studies directly related to video games and intellectual property. Finally, the research paper conducts its own analysis of the subject, drawing on history, a literature review and case studies on video games and intellectual property. Ultimately, the article argues that video game modding falls under the interactive perspective – and therefore fair use. Introduction to Video Games and Copyright Law The history of the interaction between video games and copyright law is fascinating, to say the least. As Greg Lastowka writes: “The main copyright problem with video games is that they are, like all games, interactive processes. Video game players experience games as creative works and perform these works during their play” (Lastowka 2013, np). This statement practically sums up the unique interaction these two legal elements have with each other. Even the legal definition of video games proves difficult. Kent (2001) acknowledges that historians and academics have had some uncertainty over the appropriate definition of "video game" – some include "any form of electronic, interactive graphic entertainment", while others limit it to "technologies of computer entertainment” (Kent 2001, 73). The most literal definition covers any game in digital format. Regardless, the variety of definitions often makes legal and academic discussions of this medium slippery. Video games: what are they? One thing is clear: video games are quite different. any other textual or audiovisual medium. One scholar has stated that the “key appeal and aesthetic potential” of video games lies in their participatory nature: “the highest and most complete form of representation is interactive representation. Games provide this interactive element, and this is a crucial factor in their appeal” (Crawford, 2011, 214). These interactive features are what have made the relationship between video games, their own players, and intellectual property law such a contentious issue in recent years. So, what is considered a video game in this current research paper? For the purposes of the thesis, the most compelling aspect of a video game, in terms of definition, lies in its interaction and participation – much like the quote above highlights. It's thisinteractive component that differentiates video games from other media and other types of intellectual property. As Lastowka (2013) states: “From the perspective of copyright law, the interactive nature of video games makes players somewhat like authors and undermines the authorship of the game creator” (n.p.). In fact, much of the case law in the history of video games and intellectual property supports this perspective. Some have even gone so far as to say that because video game design is not "traditionally" copyrighted, video games in this manner are "not fully protected by copyright law." author” (Lastowka 2013, np). Therefore, from a jurisprudence perspective, traditional copyright laws do not sufficiently protect game designers as authors, nor sufficiently consider the role of players. This may seem counterintuitive, even oxymoronic, but the discussion below should explain it. Intellectual Property Law Protections on Video Games In some ways, traditional copyright law may limit certain intellectual property rights of the game's author, while simultaneously limiting the right to a player to fully participate or even create authorship within the gaming platform. On the one hand, current copyright law only protects the code behind video game interaction. This means that aspects such as gameplay, avatars and even screenshots are often not protected (Crawford 2011). On the other hand, video games are becoming more social and interactive and often offer the opportunity to create or build within the game platform. The way video games are designed, these creations (media) often belong to the creators or owners of the game (Lastowka 2013), rather than the players themselves. In this way, copyright law is insufficient for both gamers and video game creators. The Role of Modifications This becomes increasingly evident when we consider the advent of modifications – or mods – to video games. Because this is the main topic of this article, it merits an initial discussion before discussing the legal and intellectual property implications. As Hector Postigo (2010) says, “Modding is an important feature of participatory culture in video games” (np). Although this academic's discussion of modding is primarily cultural, it is an important consideration even within the legal framework. As the author continues, “Modding culture can be considered as a point of articulation between the industry and participatory cultural practices”; Furthermore, modding culture is not simply a process of deceiving the industry, but rather places "a high emphasis on modding for fun or out of love for a particular community or game" (Postigo, 2010, np ). In this way, modding is not a simple case of copyright infringement; instead, it represents the fine line in the participatory nature of modern media. From a technical point of view, modding is simply the act of modifying – or altering – existing video games: it is “modifying the code of a game to change it in one way or another. 'another one. » (JIPEL, 2016, np). One researcher defines modding as when “savvy fans delve into the back-end of their favorite games to fix bugs, update graphics, or introduce new elements” (Letzer, 2015, np). Some games and companies integrate the ability to modify into their games, such as with MineCraft or Steam's Community Workshop (Letzer, 2015). Other companies and creators ofgames actively fight against the modding community. As a result, there isn't even a consensus within the gaming industry on how to treat the modding community; that is, whether they represent a threat to intellectual property or a means of innovation in existing games. Regardless, the modding community uses existing video games as a base, building the "house" (or mod) on top of it. The major question of this article is whether this is valid (or legal). The importance of video games in intellectual property law Now that the relationship between video games and intellectual property has been established, accompanied by a brief discussion on the role of modifications in these games, a question remains: why this Is the subject inherently crucial to the field of copyright and intellectual property? The answer is quite simple: video games' controversial position on intellectual property will only get more complicated as video games become more participatory and more complicated. Therefore, addressing this issue now (and continually) is essential to ensure that the interests of video game creators and the modding community are met. Additionally, this is an important topic to address because, as noted above, there is no clear consensus among relevant parties regarding the appropriate protections of video game copyright law . However, there are certainly opinions on the subject, as this review of the literature will show. Perspectives on Intellectual Property Law and Video Games There are a wide range of views – legal, personal and professional – on the question of how copyright can (and cannot) protect video content. video games and, more particularly, modifications made within the framework of existing video games. There is certainly case law on the subject, as we will see in the case studies discussed below. However, due to the elusive nature of video games as defined above, this case law can often provide varying degrees of support for copyright protection. Historically, courts have been slow to protect even the simplest video games under copyright law (Lastowka, 2013). . For example, Atari wanted to protect its game Breakout in the 1980s. Essentially a variation of Pong, the Copyright Office initially rejected the company's copyright registration, "stating that the game was not sufficiently creative to constitute a work of authorship” (Lastowka, 2013, np). This set the tone – and the strict rubric of originality, creativity and authorship – for video game copyright protection for the next two decades. On the other hand, a report found that “courts view user-generated works as derivative content owned by the copyright owner” (JIPEL, 2016, np). Two Perspectives These early court decisions also marked the beginning of two different legal perspectives on copyright protection. of video games: the so-called perspectives of narratology and ludology. The narratologist perspective views video games as no different from any other creative or authored work, while the ludological perspective views video games as inherently participatory and therefore calls for a different standard of review. These two perspectives summarize not only the existing video game copyright jurisprudence, but also the views expressed in the relevant literature. More precisely, the narratologist's point of view considers thevideo games similar to other forms of media, and therefore inherently protected by copyright law. In contrast, the ludologist view views video games as sufficiently different from other forms of media to require a different set of protections. Both perspectives are best represented in the Supreme Court's decision in Brown v. EMA,131 S.Ct 2729 (2011), which directly addressed the question of whether "video games are fundamentally different from books, films, works of art, and other forms of traditional content." media." In the decision, Just Scalia wrote: "As for the argument that video games enable participation in violent action, this seems to us more a question of degree than of nature." He was thus referring to other forms of media that can also be considered participatory In contrast, Justice Alito wrote that reading a novel is a very different experience from reading a book: “When all the characteristics of video games. are taken into account. Given this, there is certainly a reasonable basis for thinking that the experience of playing a video game may be very different from the experience of reading a book, listening to a radio show, or watching a motion picture” (2751) Although this case deals primarily with First Amendment rights (rather than copyright law), these opinions accurately reflect both perspectives relevant to the discussion in this article. used as underlying assumptions regarding this topic in the remainder of this topic. Academic Perspectives Most academic perspectives regarding copyright law and video games fall into the two perspectives described above. Some have even gone so far as to say that video games are not protected by copyright law because they are systems rather than content. The Copyright Act states that copyright protection does not apply to "any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such a work.” (US Code 102). From the ludologist's perspective, "certain elements of video game design may also be barred from copyright protection" because games are often "primarily systems and procedures that guide player behavior" (Lastowka, 2013, np). One scholar, Boyden, particularly defends this perspective: "Imagine there is a rule that 'novels are not copyrightable,' but the plot, the characters, the setting of a novel ,the dialogue and the cover art all were. What would be the point of such a rule? (Boyden, 2011, np). In other words, Boyden compares the integral parts of video games to the integral parts of a novel or other work of authorship to emphasize that all games (including video games) are abstract systems. Because of this comparison, Boyden and others argue that gaming should be excluded from copyright law altogether. Boyden goes into more detail to defend this perspective, and is worth quoting at length: The gaming experience is provided by the players, not the game designer. Even video games, although they are composed of software , audiovisual elements, plots, graphics and characters, nevertheless have a core not protected by copyright: the very flow of the game. Systems are shells into which users pour meaning (Boyden, 2011, 479). Therefore, the ludological perspective of this subject considers that video games are in a category tohand, while the narratological perspective follows the traditional line of copyright. Despite this perspective, it currently appears that "disclaimers that players agree to when creating content will likely be enforced by the courts and limit any potential copyright claims for players" (JIPEL, 2016, np). Therefore, the mainstream seems to follow the narrative line. But what does the existing academic literature say about video game modifications themselves? Perspectives on Modding Within the modding community, there are also a variety of opinions regarding the potential benefits of modding for game creators and players (or consumers). As Letowska (2013) puts it, "Critics of the rise of video game co-creation point to the fact that video game companies retain the majority of the economic value produced by the labor of free gamers", while on the other hand "those who have a more optimistic vision of the co-creation of video games" "Creativity in video games generally puts forward arguments which are essentially consistent with those put forward by the first supporters of Web 2.0" ( np). In other words, proponents of cooperation and modding in video games argue that this interaction will benefit both the innovation of game companies and producers, as well as those who play – and interact intrinsically with – the game. More precisely, some authors have asserted that “Player participation in video games occurs in a non-market cultural sphere that is normatively superior to the realms of commodified culture” (Benkler, 2006, 271; Burri -Nenova, 2010). Therefore, while game creators may own intellectual property rights to the software in their games, content produced by users and players must also be protected by those who created it. Although this may seem "pie in the sky" and not directly relevant to a legal debate, this perspective fits within the ludological perspective of video games in relation to copyright law. Any discussion regarding copyright law should include both the interests of the gaming (and modding) community and those of the video game industry. Tyler Ochoa (2012) points out that "if we put aside the contractual issues surrounding player authorship in the context of video games, there seems to be no reason why players cannot be considered authors under copyright law when using robust creative tools provided by video games” (959). The scholar compares video game software to that of a word processor to make his point. Another researcher supports this view, stating that "even in cases where players do not have authoring tools, many players today use third-party software and technologies to copy and reproduce material particularities of video games” (Scacchi, 2010, 17). This view of video games as authorial tools, rather than consumable media, poses an interesting problem for copyright and the intellectual property debate. To further highlight this discussion, the paper can now turn to specific examples from the topic. Case Studies in Intellectual Property Law and Video GamesIn order to fully understand the underlying issues from intellectual property to modern video games , it is necessary to look at specific cases of intellectual property law and the ideas explained above at work. Therefore, this article turns to two case studiesspecific regarding the subject: the first is a legal matter and supports a narratological perspective, while the second is an example of how modern video games can be interactive (and why this can be beneficial for all parties involved ). The first deal is Midway Mfg. c. Arctic International, while the second is a discussion of the popular game MineCraft. The first court case was between Midway Manufacturing (the maker of the popular games Pac-Man and Galaxian) and Artic International, which allegedly created games that violated Midway's intellectual property rights. The defendant's argument was largely that arcade games were not a "fixed" medium, but rather something that players interacted with to create their own content. In this way, more than thirty years ago, this case is relevant to the modern debate. The opinion written by Chief Judge Cummings (for the Seventh Circuit Court of Appeals) in Midway Mfg. versus Arctic International functions as a sort of antithesis to the perspective presented above. In the 1983 opinion, Cummings wrote: "Playing a video game [is] a bit like arranging words in a dictionary into sentences or painting on a palette in a painting." The question is whether the creative effort required to play a video game is sufficient, like writing or painting, to make each depiction of a video game the work of the player and not the inventor of the game. game” (999). In response to this question, the court ruled that it was not sufficiently creative. Instead, Cummings wrote that "playing a video game is more like changing the channel on a television than writing a novel or painting a picture" (999). This case therefore sets the tone for those who adopt a narratological vision of video games, by maintaining traditional intellectual property rights and copyright for video games as for other media. The other case study relevant to this discussion is much more contemporary: the very popular game called MineCraft. Simply put, the game gives players the building blocks to build their own world, as well as interact with it and other players as they wish. As Lastowka writes in another article, MineCraft aims to “allow people to discover their own creativity, even if they do not initially intend to be creative” (Lastowka, 2016, np). In this sense, the game is the complete antithesis of the narratological vision of video games. While there is some inherent gameplay, the vast majority of interactions in MineCraft are created by the player. This change alone can challenge the idea that all video games fall under the narratological perspective. As Lastowka (2016) writes, "most developers in the industry have been steeped in the logic and culture of intellectual property", which asserts that "game developers should create content and players should consume. In this way, MineCraft stands in stark contrast to this logic. The game involves user participation and even suggestions from the players themselves. The game works more like the proverbial word processor described above than almost any other video game. In short, MineCraft realizes the potential of players and users to act as game creators and developers, rather than remaining one-sided. In this way, gaming represents at least one way for game developers and players to circumvent intellectual property issues. Lastowka issues an important caveat: “Intellectual property has been and will continue to be essential to the development of video games as an art form” (Lastowka,2016). However, games like MineCraft can satisfy both the intellectual property rights of the owner and the creativity of the players. Based on the above discussion, this research paper can draw several conclusions, as well as its own argument. Firstly, by considering the history of video games and intellectual property, as well as analyzing relevant literature and case studies on the subject, it becomes clear that there are divergent opinions on the role of intellectual property in video games and associated media. However, it is also clear that these opinions most often fall into one of two camps: narratology or ludology. Although these words may seem too specific, they essentially describe the view we have of video games in relation to other media. Either video games are inherently based on interactivity and participation (the ludological perspective), or they are simply advanced plots with clearly defined authorship (the narratological perspective). While there are certainly other perspectives on the subject, these two perspectives represent the primary legal and business approaches to managing intellectual property in video games. This dichotomy has been highlighted through the discussion above. The second conclusion that can be drawn from the above discussion is that the interaction between intellectual property and video games is not an absolute certainty, legal or even moral. Instead, one's opinion on how video games are protected (or not) by copyright law depends entirely on one's adherence to one or the other perspective. presented above. Particularly when it comes to the legality (or even appropriateness) of modding in the video game industry, opinions vary widely depending on one's primary interest. However, what can be determined is that modding should at least receive the same scrutiny as other works that fall under derivative works and the fair use doctrine (Stim, 2013). Using these legal guidelines, a research paper reveals that video game modding fits into the interactive/ludological perspective for three main reasons. First, video games are interactive by nature. As the literature review above and the MineCraft case study show, video games are entirely dependent on participation. To put it succinctly, there would be no game without players. This is the main argument of the ludological perspective, and one that this author finds quite compelling given the levels of participation in modern video games. Second, overall there is no money to be made in modding, which is more about passion and creativity. in the gaming community. While video game companies certainly have the right to protect their copyright interests, modding generally poses no financial or branding threat to the game's creators. Instead, modding often offers opportunities for innovation, growth and even free marketing. Finally, video games are clearly a type of media in their own right and should be treated as such, rather than being put in a box with other works of authorship. While some elements of video games certainly bear similarities to other media, the interactive nature and ever-changing environments of video games mean that they cannot simply be lumped in with films or musical compositions. Instead, video games deserve their own level of legal scrutiny. In,.