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



Between Guitar Hero: World Tour and Little Big Planet, user content is king going into this holiday season. Last time on LGJ, we talked about the issue of the rights of the user. This week, I wanted to take the opposite approach and hopefully outline the legal issues that make Microsoft and Sony's lawyers cringe. These are the reasons for the complex terms of use and mildly mysterious disappearances of some content from the sharing servers. While there are a myriad of potential legal theories that could be employed if someone wanted to sue based on user content, I'm going to focus on what I think are the more likely and/or more plausible ones.

In case you're still living in a dial-up world and haven't experienced user content, the basics are fairly simple: People who play the game create content and upload it for others to use. In the games I mentioned above, that content is put up on servers for the game maintained either by the network (PSN, Xbox Live) or by the developer/publisher. This content varies by game, but it may be new levels, scenarios, maps, or songs. The content is based on in-game editing tools, and has been really successful in games like Halo 3 with Forge. It can also help develop a community around the game and extend the shelf life of the title.

"There are really two places where concerns arise: Offensive content and Infringing content."

However, nothing is quite so simple, and setting up the kind of system for a game can lead to a lot of heartburn. There are really two places where concerns arise: 1) offensive content and 2) infringing content. Offensive content is simple enough, and has been the subject of a lot of webcomics related to Little Big Planet. Those people who are managing the content service want to be able to police user content for offensiveness for a variety of reasons.

Of course, there is the potential negative press, which could impact the long term viability of the community that is developing around the game. There's also the desired atmosphere they have planned for the community. For example, there are likely to be more people monitoring a game like LittleBigPlanet than one with a higher ESRB content rating, like Halo 3.

Of course, this seems pretty obvious. No game wants to be 'the game with the bad content that made the news.' But is there a potential for a legal problem for offensive content? Surprisingly, yes, but it's a bit of a stretch. If someone could actually create content that rose to the level of pornography, then the game company may be at risk based on the fact that it's potentially being distributed to minors through their system. While I don't think any content system on any console could rise to this level at the current time, it's at least something to be aware of.

Copyright infringement via user content, on the other hand, is a much more realistic concern. Just to make sure you understand, I would absolutely love to be able to play some classic retro gaming tracks interpreted into, say, Guitar Hero, but unless the game has licensed the tracks, they really shouldn't be there. However, I may be getting ahead of myself. A short copyright refresher is probably in order.

As we've discussed before, there are a number of rights in what it commonly called 'copyright.' The copyright holder has the sole ability to control how their copyrighted item is distributed, performed, etc., through the use of licenses. In the context of something like reproducing a song in Guitar Hero, the infringement may be on reproduction of the song by the user as well as distribution through the software and arguably also through performance through use of the game. I'm sure many people are wondering about whether it's still infringement when not using the original recording or when stylizing the song. Music is protected both as a recording and as sheet music, so the argument that you're recording a 'new version' doesn't negate the protection for the song as sheet music being performed by you. Even stylizing the song is arguably a derivative work rather than an original one, meaning it's still withing the rights of the copyright holder.

I'm sure many of you are thinking, 'then what's the point of song creation then, if I can't translate my favorite song to Guitar Hero and upload it?' Well, if you're wanting to share tracks online, they should be original or a copyright you hold. So, while it can be just a fun tool to make up some tunes with, it could theoretically be a tool for unsigned bands to get a track or two out to the masses in a new, popular media. A popular track on Guitar Hero may not be as much exposure as being the free song of the week on iTunes, if well done it might be played by far more people than something posted on MySpace.

The idea of replicating levels is a little more abstract, whether that's in Little Big Planet or elsewhere. Copyright, as we've discussed before, protects the expression, not the idea. A song is an expression, and the music theory is the idea, so those cases are more clear cut. A level, on the other hand, is an expression, but would have to be pretty faithfully recreated to go beyond simply re-creating the idea of the level. If a level is like a chapter in a book, copying it word for word is copying the expression, but re-writing it to have the same theme in different context would be copying the idea. It's a little more complex to explain in game terms, but I'll give it a couple of tries.

Say you're making a map for a FPS game. If you copied the Complex map from Goldeneye with an identical floor plan but different textures, that would likely be copying the expression. If, however, your map changed the layout but kept the idea of a high point with multiple downward views that could be taken and defended, then that would be copying the idea. As another example, if you wanted to try to recreate the first level of Kid Icarus in Little Big Planet (which, I have to admit, would be pretty awesome), and did so by copying the level exactly, then that would be copying the expression, although it's more borderline because the media's constraints prevent it from being as exact of a copy. On the other hand, if you made a level in the style of Kid Icarus, it's likely more copying of the idea, but you would have to be careful that trademarked elements weren't included. In these respects, level design is kind of a gray area.

"Even if not infringement, and therefore distribution isn't a problem, the developer could still be sued."



However, there's still risk for the developer. Even if it's not infringement, and therefore the distribution isn't problematic, they could still be sued. And the risk, as much as a bad verdict is a risk, is really the cost of defending the suit, not to mention the publicity. All of these financial factors are considered by people who plan the business.

In short, the idea of controlling content is as much about controlling the business model and business risk as it is about the legal concerns, even though there are real legal concerns involved with elements of user content. Much like user rights to content, there's a high probability that these issues will be presented before a court at some time and more concrete answers will be established in due time.



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.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

This article was originally published on Joystiq.