LGJ: The PRO-IP Act and Gaming

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Congress has recently passed the Prioritizing Resources and Organization for Intellectual Property Act (the "PRO-IP Act"). While it has not been signed by the President yet, it seems as it's only a matter of time before the Act has the force of law. The PRO-IP Act does three things, generally: 1) it increases the penalties for infringement by expanding what is considered a 'work;' 2) it broadens the ability of the government to permanently seize goods; and 3) it creates an Intellectual Property Enforcement Coordinator, a new cabinet position whose sole job is to increase intellectual property enforcement. In short, it's a load of bad news for consumers, but really, it's not that much good news for many intellectual property owners either, as I'll explain. Because this act is so broad and will be applied in so many ways, I'm actually writing two articles about it. Here on Joystiq, I will be covering the PRO-IP Act as it relates to gaming while on Law of the Game, my blog, I've (shameless plug) posted an article discussing the act as it applies to other media.

I consider myself to be in a pretty neutral position with respect to weighing the pros and cons of various IP regulations. I'm a consumer, I represent producers, and as a writer, I'm a producer myself. Being in that position, I've always admired the game industry for typically not being in favor of or enforcing the most draconian regulations to their fullest extent. In that respect, many game companies and gamers seem to understand that their relationship is symbiotic. Without one, the other would not be able to function. And with that understanding, the majority of gamers and game producers see the need for some intellectual property protection but also see the need for reasonable protection to balance the interests of the producer and consumer. And in that respect, the PRO-IP Act starts to shift the balance in ways that aren't necessarily desirable for either, but are certainly not desirable to the consumer.

The impact to the consumer is obvious. The simple fact of the matter is that I doubt there is a consumer anywhere in the US who has never downloaded or otherwise acquired a single thing in violation of someone's copyright. What this now means is that, for consumers, more or less anything that has come into contact with that pirated item can be seized by the government. The statute is worded in such a broad manner that it would be theoretically possible to seize all of the computers in a home or office if one pirated MP3 or piece of software was present. More importantly, the penalties have changed so that individual elements are now imputed as works. For example, before it was considered to be downloading a 'work' to download an entire CD. Now, each individual track would be considered a 'work,' so one CD is now ten or more times the penalty that it once was. Similarly, if you copied a magazine with 100 photographs in it, you would now be liable for each copywritten photograph and article separately.

It's this clause that actually presents a potential problem for the producers of mixed media works, like games. It will be up to the courts to draw the appropriate lines, but based on this new definition of 'works,' a game with a licensed soundtrack may be multiple works, and older games of this nature likely haven't contractually dealt with this idea in a way to account for the PRO-IP Act. For example, let's say someone is pirating Madden 2002. It might not be worth EA's time or trouble to go after those pirates, since their real concern at this point is Madden 2009, but the piracy of that game could now also potentially be considered the piracy of that music. It's unclear whether the musicians would be able to pursue this separately or whether they would have to work with EA as the owner of the overall 'work.' Assuming the action has to be brought by EA on their behalf based on the license, it's possible EA could be sued for failing to do so. By expanding the definition of a 'work,' a quagmire has been created that will impact many producers, at least until the court irons out the default rignts in these cases.

This could also take the publicity decisions out of the hands of the game publishers. Typically, the game companies haven't used the tactic of suing 8 year old Timmy who downloaded one ROM of an NES game. However, depending on who has the power to sue based on the noted issue above, it's possible the RIAA could start forcing the hand of game developers when licensed music is involved depending on how the license is drafted or depending on how the court interprets who has what rights under the PRO-IP Act.

As you can imagine, this could also cause all sorts of problems in the Machinima world. As you keep moving downstream and adding elements, more and more people have potential interest in enforcement. I hesitate to think what might happen if a machinima is made from a game using the licensed soundtrack in absence of a Machinima Rule from the developer. Not only could the machinima maker be looking at issues from both the game developer and the musicians, but so could anyone who downloads the video.

Of course, it's entirely possible the courts will substantially limit what is written into the act, making most or all of these points moot. In that case, we'd be more or less where we are today, except with higher potential penalties for piracy.

I've always admired the game industry for its generally reasonable stance on piracy, despite the fact that demos and readily available game rentals make piracy nearly inexcusable. For their part, they have largely followed the strategy that I've long believed provides the best answer to piracy: Pursue the large scale distributors of pirated material, not your own customers. That strategy, in general, keeps the IP balance of rights in check. The PRO-IP Act hasn't been signed by the President yet, and may very well be ignored until the new President is sworn into office in January.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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