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Law of the Game on Joystiq: Used to be Fair

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


Based on the comments to the last few copyright-oriented columns, it seems like everyone wants to talk about fair use. In fact, fair use is one of the most misunderstood aspects of intellectual property law, even though it's popular to play the "fair use" card in response to alleged infringement. Much of the confusion stems from the fact that there are different fair uses of copyrights and trademarks; still, other confusion stems from the fact that many of the tests for what qualifies as fair use are not terribly clear -- but I'll be clearing much of this up for you today ... hopefully.

For the most part, trademark fair use is far simpler to understand than copyright fair use, so trademarks will be our first stop. Simply put, it is fair to use a trademark nominatively or for identification. That means if you re-sell a BMW, you are allowed to refer to it as a BMW. If you're writing a book or game dialog, you are allowed to refer to brand names. You are also allowed to refer to brand names in comparative advertising too; for example: "Our console has more games than the PlayStation 3!" or "Our hardware is more powerful than the Nintendo Wii!" or "Our system is more fun than the Xbox360!" Now that I've angered all the fanboys, that's pretty much the entire universe of trademark fair use. Copyright fair use, on the other hand, is far more complicated.



Copyright Fair Use stems from Section 107 of Title 17 to the US Code. To summarize the complete text, what would ordinarily be infringement when done for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is not infringement. However, these are not hard line rules, as the determination of infringement depends on: the purpose or character of the use, the nature of the work, the amount of copying, and the effect on the market. Of course, this is a fairly ambiguous standard and was drafted to accomplish that goal: ambiguity. Why? So that the fair use rules could be adapted as technology and media moved forward.

"Rule #3: Just because something is on the internet doesn't mean it's fair game."



Of course, 17 USC 107 doesn't represent the complete picture. The Digital Millennium Copyright Act added the so-called "anti-circumvention" provisions, which limited the "fair use" of technology to circumvent copy prevention systems to a list managed by the Library of Congress. That list is updated on a three year cycle, with the next update slated for 2009. The other major part of the fair use picture is the case law, the most famous of which is likely the "Betamax Case" from 1984, which made home recording of television broadcasts a "fair use," so long as it was for personal use only. The newer entrant to the picture is the "Creative Commons" concept. Basically, if you create something, you can opt to have it protected under creative commons rather than under traditional copyright. CC licensing has its own rules, but in general, it's less restrictive on those using the work than traditional copyright. Of course, it is also customizable with respect to a number of rights, so use of CC material needs to be done per the author's chosen rules.

Needless to say, there is a lot of material on fair use, and there is, unfortunately, a lot of misinformation floating around about the concept. It's actually so deep an issue that I really can't provide an end-all, be-all description in one, or even one hundred columns. Instead, I will try to lay down a few ground rules to keep in mind about fair use, and then address some of the bigger myths with respect to certain scenarios that generally result in a "fair use" discussion. When dealing with any material, it is important to keep the following rules in mind:
  1. Assume everything is copyrighted unless explicitly stated otherwise. Everything created in the US after April 1, 1989 is automatically copyrighted by virtue of the Berne Convention, and many other countries also subscribe to this philosophy. It's far safer to assume anything you run across is copyrighted unless it says otherwise.
  2. You don't have to charge for something to be infringing. A lot of people assume if they distribute whatever their infringing use is for free that it isn't an infringement. That's simply not the case. Whether it's free on YouTube or sold on DVD, an infringing recording is still an infringing recording.
  3. Just because something is on the internet does not mean it's fair game. Publishing online is no different, in a copyright context, than publishing in a more traditional "print" medium. Online content is protected by copyright. The assumption that everything on the internet is public domain is simply incorrect.
  4. Simply acknowledging the source does not make the use fair. Fair use only applies in the circumstances roughly outlined by 17 USC 107. If what you're doing is a far cry from that outline, I would be wary of trying to claim fair use.
  5. Fair use is a legitimate defense against infringement when it is used properly. If you are truly exercising a fair use, be that for a parody or a criticism or a news report, then you really do have a protection from a copyright holder. The problem generally arises from the use of a fair use defense when the activity doesn't actually fall into the fair use realm. If you're worried about fair use, it may be in your best interest to consult an attorney.
Bearing this all in mind, there are a few common copyright fair use misconceptions pertaining to video games I see on a regular basis. I think going through these misconceptions will help further explain fair use as a whole.

Misconception 1
Since the NES is obsolete, I can download ROMs of the games as fair use. It's even in the DMCA!


This is, despite the wishes of many people, dead wrong. If you look to the Digital Millennium Copyright Act's exceptions, as put out by the Library of Congress, the exception in question reads:

"Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace."

I've bolded two portions of the rule. First, circumventing copy protection technology (i.e., the NES cartridge) is only valid for libraries or archives for the purpose of preservation. Second, that use is limited to when the system is no longer reasonably available. Given that you can get an NES on eBay for a few dollars, this provision isn't yet applicable to NES games. Even if it were, the average user wouldn't be considered a "library or archive" by the courts.

Misconception 2
If my machinima is a parody, then it's completely fair use.

The finer points of machinima intellectual property are enough for a column in and of themselves. Because there are so many varied elements to a machinima, it's difficult to determine whether any particular machinima is truly a "fair use." As a general rule, it's far safer to operate under a license or under the rules set out by the developer. Even Red vs. Blue, which is arguably a pure satire/parody of the Halo series, operates under a license rather than trying to point to fair use.

Misconception 3
Posting videos of a video game on YouTube is a fair use.

Remember that fair use is limited to the uses and subject to the analysis I summarized a few paragraphs ago. In this case, not all videos on YouTube would be fair use. For example, if I posted a 5 minute clip of dialog from a game in order to criticize the dialog from a literary perspective, that would more likely be fair use since it would be for one of the stated purposes, the amount of the copying is minimal, and the impact on the market isn't likely to be much. In fact, a video showing a glitch may be much the same, as it's generally a criticism of the work. On the other hand, posting a video revealing a major plot point or showing a substantial portion of the game with little other purpose wouldn't likely be seen as fair use. Another common point is speed runs. They don't really affect the market for the game, even though the copying is pretty substantial. Should that issue ever go to trial, the critical point may be whether the use falls into that list, which really could be argued different ways.

Of course, there are still a lot of areas of fair use that haven't been definitively determined. For example, while most people would assume it's a fair use to copy a CD you bought in a store to your computer and/or MP3 player, that point is undecided. In fact, even the RIAA has both acknowledged and then denied this is a fair use. As I said at the outset of this column, fair use is a complicated topic, and I could probably write a whole series of columns on fair use alone. Hopefully, this has given you some basic understanding of the fair use concept, its origins, and its ultimate application to some of the copyrights you encounter in your daily gaming lives.


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.

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