Like several other Terra Novans, I'm a fan of City of Heroes and am quite concerned about Marvel's suit against NCSoft. The Complaint[1.7MB pdf] raises some very strange issues at the level of legal doctrine, but it's a particularly troubling claim with regard to the policy of virtual worlds. Marvel is claiming that NCSoft is vicariously and contributorily liable for copyright and trademark infringement--which means that it must be claiming that players are infringing Marvel's copyrights and trademarks by making avatars resemble superheroes in the Marvel portfolio (the X-men, the Hulk, etc.).
Fred von Lohmann (who argued [16MB mp3] the Ninth Circuit appeal in the Grokster case, btw) has an excellent essay today in law.com on what a bad idea this is in terms of law and policy. After he tells the legal audience what in Sam Hill an MMORPG is, Fred points out that the players are really at the heart of the claim:
Yes, you read that right -- Marvel's claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law. Since when is it illegal to pretend to be your favorite superhero? Should parents be policing their kids, lest they be caught "pretending without a license"? Were all those drawings of the X-Men on grammar school notebooks evidence of infringement? And what about all those homemade superhero Halloween costumes? <ed: snip> Why are everyday expressive activities in the real world -- such as joining some neighborhood kids in the backyard for a bit of superhero role playing -- suddenly exposed to the depredations of copyright and trademark lawyers when they move online?
The big point here is that this suit isn't just about private contractual arrangements between two major companies. The rights of the player, and the nature of player creativity in MMORPGs generally, are implicated by Marvel's claims.
Those who want to appropriate characters and objects from their favorite movies, comics, games or television shows will be limited to virtual worlds either operated or licensed by the corporations that own those cultural objects. If they want to mix and match characters and genres, they will be hunted down and deleted, either by the rightsholders themselves or by MMO operators deputized by fear of secondary liability. In essence, the open-ended universe of MMOs would be reduced to a limited set of tightly controlled theme parks. All this, thanks to the censorial side of copyright and trademark law.
So let's recognize Marvel's lawsuit for what it is -- not just a tussle between competing corporations, but as an assault on the basic expressive rights of the fans that have supported the comic book industry for decades. Be prepared when your children, heading out into the virtual backyard of the future, ask, "Mom, I want to play Spider-Man with my friends today. Did we pay for the Marvel license this month?"
Really couldn't have said it better. Constance pointed out that Henry Jenkins and Kurt Squire have a critical column in Computer Games this month. It references Kavalier & Clay -- a book people keep telling me I have to read, since I used to draw comics myself in a former life. The discussion on the big boards seems generally displeased (Warcry, Stratics, MMORPGDot).
Note: If you're a CoH player and feel strongly about your right to pretend without a license, Fred would be interested in talking with you -- the domain is "eff.org", and the handle is "fred".
Update: Check out this story about Cryptic's origins on Forbes.
Recent Comments