Creators, Consumers & Users: Introduction to contractual Conundrums Part B Connecting | Talk 4 Video Game Law 2013 UBC Law @ Allard Hall Jon Festinger.

Creators, Consumers & Users:Introduction to contractual Conundrums

Part B “Connecting” | Talk 4Video Game Law 2013 UBC Law @ Allard Hall

Jon Festinger Q.C.Centre for Digital MediaFestinger Law & Strategy LLP@[email protected]

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/does-solitude-enhance-creativity-a-criique-of-susan-cains-attack-on-collaboration/

• “All Creative Work is Derivative” – Nina Paleyhttp://blog.ninapaley.com/2010/02/09/all-creative-work-is-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-brilliant-wendy-macnaughton-you-know

A Correct Answer?• Video Games as proof of mutually reliant and

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_Intellectual_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/20120420/10560418585/to-read-all-privacy-policies-you-encounter-youd-need-to-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-digital-games-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-11-what-are-digital-locks-and-why-should-you-care/#.UKVU4-Oe-OU

Related Issue 5

• Backlash?

• SDK’s• Creative Commons • Open Source• Crowdsourcing

• But all are Contracts!

Other Possible Answers• Consumer protection laws• International Law “standard forms”• “Anonymous” & “Hacktivism”• “Changing the Rules of the Game: How

Video Game Publishers are Embracing User-Generated Derivative Works” – re. Machinima http://jolt.law.harvard.edu/articles/pdf/v21/21HarvJLTech567.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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