Creators, Consumers & Users:
Introduction to contractual Conundrums
Part B “Connecting” | Talk 4
Video Game Law 2013
UBC Law @ Allard Hall
Jon Festinger Q.C.
Centre for Digital Media
Festinger Law & Strategy LLP
@gamebizlaw
jon_festinger@thecdm.ca
Talk 3 Recap
• Bait: Right to Mod/Right to CREATe
• Switch:
1. Copyright’s relationship to (derived from?) free speech rights.
2. LEVELLING UP: Video game interactivity a level (video game
humor) beyond other remix’s/uses owing to fundamental nature of
gaming as interactive?
3. Symmetry of personal interactivity in a creative
environment (VIDEO-GAMES) with personal creativity in an
interactive environment (WEB, SOCIAL MEDIA) means right to
mod, machinima & remix?
4. Perhaps copy “right” regime ok for non-interactive
mediums – e.g. records, film, television)
Leading to ….
• Sacredness of personal creativity -----SHARED.
• Moral Rights (as opposed to economic property rights) as a tool
protecting the creative..
*
*Art by Allan Switzer
NOW …From “Creating” to “Connecting”
• “If you wish to make an apple pie from scratch, you must first invent the
universe.” – Carl Sagan
• “There is no doubt that creativity is the most important human resource of all.
Without creativity, there would be no progress, and we would be forever
repeating the same patterns.” - Edward de Bono
• Creativity is just connecting things. When you ask creative people how
they did something, they feel a little guilty because they didn't really do it,
they just saw something. It seemed obvious to them after a while. That's
because they were able to connect experiences they've had and synthesize
new things. And the reason they were able to do that was that they've had
more experiences or they have thought more about their experiences than
other people.” - Steve Jobs in a Wired Magazine interview (Feb. 1996)
“http://www.wired.com/wired/archive/4.02/jobs_pr.html
• “Creativity is contagious. Pass it on.” – Albert Einstein
Contrast to the “Hollywood model”
* “The creative is the place where no one else has ever been. You
have to leave the city of your comfort and go into the wilderness of
your intuition. What you’ll discover will be wonderful. What you’ll
discover is yourself.”
* View that creativity is uniquely personal (or not) impacts
beliefs about copyright & IP (e.g. film & music business – T.V.
more flexible?) – consequences of “specialness” (and
entitlement?)
* Personal creation mythology deeply rooted in our psyches’:
“And G-d said: ‘Let us make man in our image, after our
likeness;”(Genesis, Chap. 1 Verse 26)
* Role and consequences of copyright law aligning along
according to personal belief: Copyright literalists’ adopt “self”
generated model of creativity? “Connection-ists” adopt open
source model?
The More General Question (sources)…
• Current debate revolves around the “power of introverts.” See
for e.g. “Does Solitude Enhance Creativity?” - Dr. Keith
Sawyer http://keithsawyer.wordpress.com/2012/01/16/doessolitude-enhance-creativity-a-criique-of-susan-cains-attackon-collaboration/
• “All Creative Work is Derivative” – Nina
Paleyhttp://blog.ninapaley.com/2010/02/09/all-creative-workis-derivative/
•
“The great driver of scientific and technological innovation [in the last 600
years has been] the increase in our ability to reach out and exchange ideas
with other people, and to borrow other people’s hunches and combine them
with our hunches and turn them into something new.” – Steven Johnson
“Where Good Ideas Come From: The Natural History of
Innovation”(book)..also see:
http://www.youtube.com/watch?feature=player_embedded&v=
0af00UcTO-c#!
A reconciliation (sort of)…
• From “Exp.lore.com”
http://exp.lore.com/post/41546671840/the-ever-brilliantwendy-macnaughton-you-know
A Correct Answer?
• Video Games as proof of mutually reliant
merged
creativity?
• Player’s creative input is necessary to the game & game
designer. Game designer’s creativity is (obviously)
necessary for the game to exist.
• Video-games: Either exception where all creativity is
connected (by design) or more proof that all creativity is
connected generally???
… The Legal Fly in the Ointment
• “Personal Genius” theory of creativity undermined by low
level of originality in copyright and ease of differentiation
in patent.
• See “The Innovation Dilemma: Intellectual Property and
the Historical Legacy of Cumulative Creativity” - Graham
M. Dutfield and Uma Suthersanen (U.K.):
“The downside of having a wide capacity to protect, however, is that
copyright law does manage to ensnare essential information and
elements that form a part of the knowledge base, which in turn
impedes the progress of follow-on innovators who must build upon
such vital building blocks.”
http://www.academia.edu/860340/The_Innovation_Dilemma_Intellec
tual_Property_and_the_Historical_Legacy_of_Cumulative_Creativity
Conclusion of “The Innovation Dilemma
“Under protection of works is a cause for concern since
it can reduce incentives for future innovation. However, as
we have argued, overprotection is currently a more serious
problem.
We conclude from our analysis that one solution to
overprotection and its perverse consequences, including
the lack of access and use of works by subsequent
innovators, may be to tweak the patent and copyright
systems. This may be done in two ways. The first is to
raise the creativity bar. The second is to expand the
limitations. There are two means by which limitations may
be expanded:(a) specific defences targeted at a certain
activity or type of user, or (b) the general defence which is
not targeted at specific activities but rather sets down a list
of parameters or guidelines that a court must take into
account when considering the scope of protection.”
Why Trademark gets it “right”
• “USE IT OR LOSE IT”
• Trade-marks Act, RSC 1985, c T-13
• “trade-mark” means (a) a mark that is used by a person for
the purpose of distinguishing or so as to distinguish wares or
services manufactured, sold, leased, hired or performed by
him from those manufactured, sold, leased, hired or
performed by others,..”
• Declaration of Use
• Cancellation for Non-use
• Aligns with commerce NOT TROLLING
• Suggest at minimum all IP law should be “use it or lose
it” per Trademark? Minimize trolling, encourage
“connecting”.
Mode(s) of Connecting
(& Legal Consequences)
1. Are “Creators, Consumers & Users” in fact the same?
If so should they be treated equally in law?
2. Asymmetry or A Symmetry (?)
• CREATION goes with COPYRIGHT/IP LAW
• CONNECTING goes with CONTRACT LAW ??
• BUT first….
ARE WE Already IN THE POST IP WORLD?
• In todays world….In real
terms….It is possible that…
• Has IP has become
VIRTUALLY*
MEANINGLESS?
mean·ing·less/ˈmēniNGlis/
Adjective: Having no meaning or significance.
Having no purpose or reason.
Synonyms:
pointless - senseless - unmeaning - insignificant – inane
*no pun intended
IP Law Swept Away By?
• Privity of Contract; AKA Licensing
Agreements (EULA’s, ToS etc.)
• Privacy Agreements
• Broadcast &Telecom Regulation
• Anti – Trust Law
• Consumer Protection
A Question….
• Why don’t you sign a EULA when you store-buy an
album but you do when you buy the same album on
iTunes???
Some reasons…
• 1: Evolution of Software: Licensing grew out of the early
computer software consulting (e.g. enterprise
accounting)…never intended for mass entertainment.
• 2: Slicing & Dicing IP:
*IP is infinitely slice-able & dice-able: Allows for rights to be given
based on geography, time, character of right AND any other
variable you can think of. As long as rights are NOT DUPLICATED
* “You may copy this work only in Moncton N.B. between 7 & 9
P.M. on the 2nd Tuesday of every odd numbered month and only
distribute it for $346 per copy between 8 & 10 AM on the 1st
Monday of every even month in Detroit Michigan.”
• Note: EA for years followed the CD model…no EULA…just
Copyright Law default….Online seemed to galvanize the
industry to licensing by contract EXCLUSIVELY….
Result: All of which makes IP….
• ….very, very CONTRACT FRIENDLY.
• And thus we get>>>
• End User License Agreements & Terms of Service & all
the rest…
Related Issue 1: The chasm of contracting out
• No one reads EULA’s, ToS’s & Privacy Policies:
• “To Read All Of The Privacy Policies You Encounter, You’d
Need to Take A Month Off From Work Every
Year”http://www.techdirt.com/articles/20120420/105604185
85/to-read-all-privacy-policies-you-encounter-youd-needto-take-month-off-work-each-year.shtml
• @gamerlaw: Amazing study by @nyulaw: "overall average
rate of readership of EULAs is on the order of 0.1 percent
to1 percent"- http://t.co/DFcF0mx0
• For review of “click-wrap” authorities see: Century 21 v.
Rogers Communications 2011BCSC 1196 (upholding ToU)
Related Issue 2: Digital re-sale
• First Sale Doctrine v. common EULA
prohibition of re-sale
• First Sale Doctrine limits right of copyright holder –
enables distribution chain of reselling books, CD’s etc.
• BUT how does it apply to the digital world?
• “EU court rules it's legal to resell digital games, software”
http://www.joystiq.com/2012/07/03/eu-court-rules-its-legal-to-resell-digitalgames-software/
• “US court to rule on ReDigi's MP3 digital music resales:
A US court is to consider a case that could determine
whether digital media files can be
resold.”http://www.bbc.co.uk/news/technology-19842851
• “Can you legally re-sell your digital music
files?”http://www.mondaq.com/unitedstates/x/218142/music+arts/Can+You
+Legally+ReSell+Your+Digital+Music+Files
Related Issue 3: The “kitchen sink” effect
“You may not purchase, sell, gift or trade
any Account, or offer to purchase, sell,
gift or trade any Account, and any such
attempt shall be null and void. Blizzard
owns, has licensed, or otherwise has
rights to all of the content that appears in
the Game. You agree that you have no
right or title in or to any such content,
including without limitation the virtual
goods or currency appearing or
originating in the Game, or any other
attributes associated with any Account.
Blizzard does not recognize any
purported transfers of virtual property
executed outside of the Game, or the
purported sale, gift or trade in the “real
world” of anything that appears or
originates in the Game. Accordingly, you
may not sell in-game items or currency
for “real” money, or exchange those items
or currency for value outside of the
Game.”
Related Issue 4: Death
• What happens to your digital library of games when you
die?
• Real library is bequeathed as property…digital property
tends to be personal license to user only.
Related Issue 5: Non-circumvention
•
•
•
•
•
EULA’s usually prohibit of reverse engineering
Remember “Blizzard/BnetD”
“Digital Locks” v. IP right to “reverse engineer”
DMCA non-circumvention provisions
New Copyright Act (Canada) criticized for too broad
empowerment of “Technological Protection Mechanisms” …“
Unlocking Bill C-11: What are Digital locks, and Why Should
You Care?” http://thefulcrum.ca/2012/02/unlocking-bill-c-11what-are-digital-locks-and-why-should-you-care/#.UKVU4-OeOU
Related Issue 5
• Backlash?
•
•
•
•
SDK’s
Creative Commons
Open Source
Crowdsourcing
• But all are Contracts!
Other Possible Answers
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Consumer protection laws
International Law “standard forms”
“Anonymous” & “Hacktivism”
“Changing the Rules of the Game: How Video
Game Publishers are Embracing UserGenerated Derivative Works” – re. Machinima
http://jolt.law.harvard.edu/articles/pdf/v21/21Harv
JLTech567.pdf
• But ref. Isabelle Arvers;
http://www.isabellearvers.com
Machinima still living in a complex contractually
restricted world
• [your suggestions here]
Next Class: “Fictions & Frictions”
• 10 Contractual CLAUSES
• 10 Video Game Law CASES
Digging into contracts in digital space...
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