Series Info...Trials, Triumphs & Trivialities #176:

Online Games & The Law: More Latest Cases

by Shannon Appelcline

Over the last two years I've written a series of articles about law & the online gaming world, to help elucidate & point out various issues for the online game designer:

The digital frontier is, however, constantly changing. Week-by-week and month-by-month new precedents are getting set that are going to affect us game publishers & designers in the years to come. So this week I'd like to follow up on my article from this March and look again at some of the most recent legal cases that center on the digital medium and that cover the legal areas that I've discussed thus far in this column: IP and community.

Unlike my previous law update, this one doesn't specifically focus on game cases. However, it does look at interesting uses of patent and copyright on the Internet and elsewhere, which will ultimately be of interest to all of us.

As before: I'm not a lawyer.

Knight v. Common Sense

One of the most confounding stories of recent months is that Andrew Knight, a registered patent agent (for what that's worth, which isn't a lot) has decided to start patenting story ideas and in fact has started an agency to help other gullible personswould-be authors to get their storylines patented as well.

The explanation of why Knight decided to start patenting storylines is quite humorous:

Recognizing that fierce competition for publication and financial reward focused on the quality of storytelling, as opposed to the quality of the underlying storyline itself, and further recognizing that even the world’s most skilled storytellers (of which he is clearly not) rarely turn a profit, his unique fictional storylines have matured into pending patent applications instead of novels or screenplays. He thus seeks reward on the true value of his innovations—the underlying storylines—instead of forced, sub-par expressions of these underlying storylines.

However the description of the storyline that Knight submitted for patent suggests that it's not just the "expressions" of his storylines which are going to be subpar:

The fictitious story, which Knight dubs "The Zombie Stare," tells of an ambitious high school senior, consumed by anticipation of college admission, who prays one night to remain unconscious until receiving his MIT admissions letter. He consciously awakes 30 years later when he finally receives the letter, lost in the mail for so many years, and discovers that, to all external observers, he has lived an apparently normal life. He desperately seeks to regain 30 years' worth of memories lost as an unconscious philosophical zombie.

As I mentioned in my description of copyright, story ideas are worthless; it's only the concrete embodiment of a story that can be copyrighted. What Knight, a "registered patent agent", should already know is that the same holds true for patents. Patents cover inventions or if you prefer, ideas that are "reduced to practice".

Scrivener's Error covers this better than I can, but the basic idea is that neither Knight or anyone else is likely to ever be issued a "storyline patent" because they can't reduce their hackneyed stories to practice any more than they could suddenly invent a perpetual motion machine, even if they had the "idea" for the same.

So, probably not something for any of us to worry about any time in the near future, but nonetheless an interesting look at the intricacies of patent & copyright.

Google v. the Publishing Industry

It's been a year since Google announced their plan to digitize every book in the world. Their idea is to scan and OCR every book ever, and make them available via their search engine. You type in a phrase, you choose their "book search engine", and poof you get images of the pages where the phrase appeared.

Google has stated that they have strong plans to restrict how many pages you can actually see from a book, even through multiple searches at different times. They're trying to make sure that they fall into the "fair use". Here's what I said about fair use in my first discussion of the topic:

The general idea is this, though: it's only fair use if you're copying a small part of a whole; if it doesn't affect the value of the original; and if it's used in a "fair" way (non-profit, reviews, etc.).

If Google follows through on their logic they'll only be copying a small part of the whole (at any one time). However publishers clearly think it'll affect the value of the originals, because they're raising holy hell over the possibility. (But then, never was there a more reactionary group than the publishing & media industries.) Even *I* think that Google is pushing the heck out of the idea of the publishers' content being used in a "fair" way. Google say they're just creating a meta-index, but it's hard to argue that they don't have a profit motive too.

There's a good recent discussion of this in Spiegel Online, which argues that what Google's doing is probably illegal, but that it points out flaws in the US Copyright System, not in Google's plans.

Is a Time-Warner v. Google lawsuit in the making? I think it's possible, and if so it'll really light up the Internet landscape and ultimately have repercussions on what copyright means for every one of us in the digital medium.

MGM v. Grokster

I've written before about the "betamax decision", Sony Corp v. Universal City Studios. It's one of the single most important copyright decisions of the last century. It said that you can make devices usable to copy copyrighted materials as long as there are other, legal, uses for the devices:

[There must be] a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes.

Unfortunately this protectional of technological advance was potentially weakened this year in the MGM v. Grokster case. Grokster is (was) a P2P file-transfer network. They were sued because their services were being primarily used to subvert copyright. Lower courts agreed with the statement that Grokster had non-infringing uses, and thus was protected by Sony.

Ultimately the Supreme Court decided that Grokster could be held liable for their users' copyright infringement because they encouraged it:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

There was some disagreement on whether this affected the original Betamax decision or not. Some judges seemed to think that Grokster should have been liable, even if they didn't encourage copyright infringement. Ultimately, however, this was written in one of the footnotes on the decision: the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.

Nonetheless, it's a dangerous slippery slope, and as community minders & leaders it's a liability that we ultimately need to consider.

Grokster, by-the-by, was ultimately shut down and forced to pay $50 million in damages.

Legal Updates

My general experience is that most legal cases eventually disappear off the face off the Earth, with no paper trail on what happened. They're either settled out of court, thrown out of court, or someone just runs out of money.

Thus, for example, I've never been able to find anything decisive on the infamous case of Hallisey and William v. AOL, a class-action volunteer-based lawsuit which sent a chill through the whole industry in 1999. (If you Google for the lawsuit, my article comes up top nowadays, which isn't helpful for my doing research; a 2004 white paper also on the search page suggests that the case may still be pending.)

But I do have a few updates on stuff from my last legal news article:

It looks like Marvel v. NCSoft, on the topic of players having the ability to infringe copyright & trademark within a game (in the same way that they can use crayons to infringe copyright), continues its slow trudge through the legal system. EFF has the most up-to-date info on the suit, though nothing interesting has happened to date.

In Hasbro v. RADGames, on the topic of creating expansions for other peoples' games, Hasbro's temporary injunction was apparently lifted in April, and RADGames appears to be selling their Monopoly supplement following an October ship date.

And that it's for the legal world this November.

[ <— #175: Skinner Boxes & Socializer Gameplay | #177: How to Cheat at Online Games, Part Two —> ]

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