Lunchtime presentation by Wendy Seltzer, EFF
Read on for Wendy's interesting comments on EFF and their interest in games and online worlds. Shockingly, this even talks about Marvel v. NCSoft!
Started by discussing EFF's history, defense of Steve Jackson Games, principle that online world should be as protected as offline world. Points out how much more infringing minor game changes are in the online world versus offline.
Importance of games to law. Measuring games in $: $7 billion in games in 2003. Seminal lawsuits in IP law concern games, Sega v. Accolade, Sony v. Connectix. Sega all about reverse engineering and using copyright and TM as an anticompetitive measure. Sony was an emulation issue. Both have applied to consumer electronics in general.
Have the potential to run into copyright, patent, trade secret, trademark, and contract issues in video games.
Davidson v. Internet Gateway. Battle.net was often not working or made for a less-than-fun experience, so owners of the game decided to engineer their own online meeting world and play space, the BNETD project, an open source version of the battle.net service. All of this was done via the systems on the games that they purchased. Blizzard fought back on pretty much every level (from copyright and TM, to DMCA and EULA contract violation). They claimed that BNETD was infringing on battle.net, that the reverse engineering was a copyright violation, DMCA circumvention because they couldn't implement the CD key protocol (since Blizzard didn't hand over the protocols), and a EULA violation.
In the return, this would be like friends deciding to get together to play Scrabble and nobody tries to block that, but the clickwrap license seems to grant Blizzard the right to enforce their EULA. So far, courts have agreed with Blizzard, but EFF appealing to the 8th circuit.
Marvel v. NCSoft. Well covered here already, so you all know about this. Goes through "The Hulk" infringement idea. As Fred von Lohmann has pointed out, this is saying that the actions of the users is in fact infringing. Should Marvel be suing kids or players who put on the Christopher Reeves memorial? Points out that Magneto's mask looks a lot like some ancient armor which is borrowed from the public domain. Discussed the fact that some of the infringing characters were created by Marvel.
Nobody is suing individuals yet, but if the lawsuit is successful, then their creativity is clearly being squelched. NCSoft, while fighting the complaint, still changes characters when they create infringing characters. When they entered the game, people ask infringing characters to change their outfits (since it might endanger their play experience). EFF attempting to get involved on behalf on the side of the end users. Hearings on motion to dismiss at the end of the month.
Points out that EFF is defending the right to use and to modify the games that people have purchased, not to allow rampant copying. Unfortunately, these modifications can run into anticirumvention components of DMCA.
Points out that culture has always relied on borrowing from other sources. Silly that TM applies within digital worlds. Not what trademark is designed to do.
Trade secret issues appear in reverse engineering. Should be a lawful way of gaining access, not a misappropriation. Competitors should be free to use these methods against commercial products. Not OK to steal source or use illegal means. Some concerns about whether fan interest can cross the lines.
Patents can creep in, with software patents. Often granted to obvious and non-original things. See EFF's work on patents. For example, silly patent on online rankings. Again, parity should exist between real and virtual worlds.
XBox Live EULA, pointing out that Microsoft reserves the right to change the functionality of it at any time. Even though you purchased it, MS can change it, potentially reducing functionality. Again, this is a very different behavior from purchases of more conventional goods. It is important that we ensure the virtual world still has the freedoms of the real world and not a world of virtual walls.
Andy Zaffron (from the audience) asks whether online games should allow reverse engineering to allow shadow servers (and therefore bypassing the ability of the online game creator to recoup development cost via subscriptions). Wendy responds that reverse engineering is important enough that it shouldn't be sacrificed. "If you've invested in a sandcastle, I'm sorry if the law isn't protecting you."
Quick note: Christopher Reeves == Superman == DC. Not Marvel.
It's also important to note the whole publicity factor. Even if DC had the right to sue little kids who dressed up like their favorite superhero and play around town in costume pretending to be him or her, it wouldn't be a good idea for them to do so. (Note: Adults, on the other hand, who dress up as their favorite supehero and do the same are, I believe, regularly sued if they feel the person is damaging that character's image in the eyes of the public. But there's a legal distinction, I believe; one could argue that few would take the child's act seriously whereas people might think the adult was actually representing the company. Then again, what if the superhero in )question was a "kid" superhero, like Power Pack?)
Bruce
Posted by: Bruce Woodcock | Feb 12, 2005 at 04:04
Did Marvel not buy DC not too long ago?
Posted by: Jim | Feb 17, 2005 at 17:48