I guess we should get back to basics, though I'll skip the intellectual property primer this time around. When users create content for games, they're creating intellectual property that would likely qualify as a derivative work. After all, what good is the content outside of the game? Some types of mods are more derivative than others, depending on how much is taken from the original work. But the point remains, it's at some level a derivative work. In this case, however, there is at least an implicit authorization for the user to create the work based on the virtue of the developer giving the user the tools to do so. In this way, we're not dealing with a situation identical to, say, machinima.
"This is basically an extension of the model Second Life has been using for quite some time: you create it and we distribute it."
So, what's the big deal, then? Well, user created content isn't worth much to anyone unless it's distributed, and developers are realizing that integrating not only the user content creation tools but the means by which to share your work can be a critical point to developing a community around the game which keeps players interested, and therefore games selling from store shelves, for a longer period of time. Since this derivative work is, at least in part, someone else's intellectual property, the people distributing it need to have the right to do so. It's at this point where things start getting a little more contentious.
In the not too distant past, mod makers put their creations up on their own websites, as mods were, for the most part, in the PC realm. The few console games that had map maker were largely distributed among friends with memory cards, or similarly online via a creator's website or host. Given that it was the creator doing the distributing, no one had to be licensed. As the holder of the copyright, you can distribute the work as you please.
Fast forward to today, where maps and other creations are shared through integrated systems over networks such as Xbox Live and the PlayStation Network. This is basically an extension of the model Second Life has been using for quite some time: you create it and we distribute it. By 'distribute,' we're talking about the actual transmission of data. The Second Life model is about as minimally intrusive to the creator as possible. Quite literally, Second Life is nothing more than a medium, and their TOS says basically as much. Of course, the Second Life content isn't quite as rooted in the game's included assets, but the basic concept is the same.
Of course, the Second Life approach is by no means the only approach to this idea, as demonstrated by the recent changes to the PSN TOU. Section 10 of the revised TOU takes what I would consider the most restrictive approach, granting Sony more or less unlimited discretion over the distribution of and any possible payments for user created content. I want to say up front that it is entirely possible Sony's legal team included these terms purely to stake out legal territory without the intention of ever using them to their fullest, in line with previous statements. And some of those terms do speak to potential concerns with content, which they reserve the right to take down.
"This is yet another example of our digital reality stepping beyond the theoretical basis that created copyright."
However, using those terms to their fullest, Sony can use user content without restriction to advertise. They can also 'commercially exploit' your creations without permission, and if they do benefit 'commercially' (read: monetarily) from your creations, they owe you nothing. You're also agreeing to abandon your moral rights to the work. Most importantly, you're not allowed to commercially benefit from your creation without their permission. In short, they've taken the opposite stance to Second Life to the extend possible while allowing user content, at least based on the theoretical stretch of those terms. What will occur in practice still remains to be seen.
It's this user content that may very well spur on legal disputes in the future, as the application of what were clearly defined areas of the law becomes disconnected with many of the intents of those laws. This is yet another example of our digital reality stepping beyond the theoretical basis that created copyright. It's really just a matter of time before either the courts or the legislature begins to address this issue, and the key conflict will be one of how far the boundaries of control can move between the user creating the content and the service distributing it.
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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