Xbox Live 360.com. Games and Games.

This week's LGJ addresses the ongoing forum debate on whether Dante's Inferno actually infringes on God of War.

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In this LGJ, we look at the issues created in cross-licensing, specifically related to music games.

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This week's LGJ goes into the reported 'Pirate Finder General' in the UK and what could follow in the US.

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In this LGJ, I talk about the allegations of 'copyright infringement' in 3D Dot Game Heroes.

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This week's LGJ talks about fan sequels, fan art, fan fiction...basically a ton of different kinds of derivative works.


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On this week's LGJ, a discussion of the RIAA's recent victory and what it may mean for statutory damages across the board.

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In discussions I’ve had with various others in all aspects of the intellectual property realm, I’ve continually run across points where the law has lagged behind the practicality of intellectual property management. This has been an ongoing problem in the IP realm with respect to issues created by technology, but issues do extend into other areas as well. In order to outline some of these issues and possible solutions, I will be occasionally posting articles in my Intellectual Property 2.0 series.

I can’t imagine that those who created our copyright and trademark laws envisioned the world we live in today, where the entertainment industry has become a megalith dominated by ongoing brands as much as it is by individual works. It is to this end that we have seen some unforeseen consequences. Copyright continues to be extended, negating much of the original intent that works pass to the public domain. However, should these works ever pass into the public domain, a new issue would immediately be born. To the extent that many of these works are also the matter of trademark for the company, they are, in essence, still not in the public domain. By the same token, should Congress continue to extend copyright, they never will be. But is there a solution? Within the practical bounds of intellectual property as we know it, not exactly. However, if the legal system is willing to move forward into a more modern intellectual property scheme, then we can solve both issues simultaneously.

This new idea is something I would refer to as ‘Copymark.’ In short, to the extent a copyrighted work is also the subject of a registered trademark, the copyright remains intact until the trademark lapses. By creation of this new category of intellectual property, you resolve two issues. One, copyright need never be extended for a concern related to the ‘brand.’ Two, those with copyrights that overlap with their trademarks no longer need to be concerned with the fate of the brand once the copyright expires. In order to balance rights, though, there would of course be a catch. To register for copymark, one must forego traditional copyright and trademark filings, and as a result, should the copymark lapse, the work would go immediately into the public domain regardless of the ‘life of the author plus 70 years’ or other expiration provisions of copyright law. More than likely, copymark status would be a filing once both the trademark and copyright are established, and the filer would have to forego their existing copyright and trademark rights in order to secure the new registration.

The concept would really only have appeal or application to those within the entertainment realms. After all, the IP is only applicable to instances when both copyright and trademark to the same IP. Unless you are already in an industry which deals in copyrighted works, then the copymark would never even be an issue. Conversely, unless you develop products and a brand that associate with a copyright, then copymark would never be available. Whether or not a ‘famous’ element would be a consideration is yet to be seen. In short, this is more or less a solution for the Disneys, the Microsofts, the Nintendos, and other big players whose copyrighted characters are also synonymous with the brand itself.

Taking a practical example from the world of gaming, let’s look at Mario. Mario is the subject of many of Nintendo’s trademarks and is more or less synonymous with the Nintendo brand, much like Mickey Mouse and Disney. Well into the future, is there any major benefit for the original Super Mario Brothers to pass into the public domain when the original Mario 8-bit sprite is still the subject of trademark? Similarly, would it be practical for Steamboat Willie to enter the public domain while Mickey Mouse is such a closely protected trademark? From a practical standpoint, not really. Assuming the rights holder is looking to aggressively protect the brand, use of the public domain character would be attacked on trademark grounds, and potentially with good reason. Any game you encounter with Mario in it is expected to be a Nintendo creation. Brand identity has moved beyond traditional trademark notions with respect to entertainment properties. Copymark resolves the incongruity of copyright and trademark with respect to entertainment products.

I can only imagine that many on the intellectual freedom side would, on principal and face value, oppose this idea. However, it is worth pointing out that much like the source intellectual properties, copymark would require fair use provisions. What exactly those provisions would entail would likely be the subject of a lengthy debate, however, elements of both copyright and trademark fair use theory would need to be present. Elements like critique, news reporting, and brand identification would be easily preserved under a copymark regime. In fact, it may even be an opportunity to introduce newer fair use provisions that are appropriate to these IPs.

It may be expecting a lot to see a tectonic shift in well established intellectual property regimes, but it is inevitable that new problems will require new solutions. The entertainment brand as we know it did not exist decades ago, but it is a near certainty that it will continue in this manner for decades to come. The printing press gave rise to copyright, and the guild system gave rise to trademark. It only seems to follow logically that the changes to the entertainment ‘brand’ would give rise to a new intellectual property regime, since intellectual property is the backbone of the industry itself. I can only imagine that companies like Microsoft and Disney might jump at the opportunity to see some of their most prized IPs protected throughout their useful life, rather than having to re-lobby Congress before certain copyrights are set to expire. It's difficult to predict whether an idea like this might ever truly be implemented, but unless people are willing to think outside the traditional intellectual property box, problems like these will be perpetual.

This week's LGJ keeps up the user content trend, but examines it from the developer's side.

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In the newest LGJ I discuss user content and Little Big Planet in the wake of Sony changing the PSN TOS.

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On this week's LGJ, some talk of the First Sale doctrine and a video game re-sale model that I'm surprised no one has picked up yet to compete with GameStop.

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This week's LGJ is on the PRO-IP Act, which is awaiting a Presidential signature. Be sure to check out the column as well as the followup here on Law of the Game.

This week's Law of the Game on Joystiq (link) covers the new PRO-IP Act as it applies to video games. As a sidenote to that column, I wanted to discuss my thoughts on the PRO-IP Act as it applies to movies and music, where I also think the Act is as much a detriment to producers as it is to consumers. I would again like to reiterate that the Act has not been signed into law as yet, but has been passed by both the House and Senate at this time. The final text of the Act is here.

In short, the PRO-IP Act does the following three things:

1. It increases the penalties for infringement by expanding what is considered a ‘work;’
2. It broadens the ability of the government to permanently seize goods; and
3. It creates an Intellectual Property Enforcement Coordinator, a new cabinet position whose sole job is to increase intellectual property enforcement.

This bill was passed based on the theory that intellectual property is under a drastic attack in the US by, seemingly, everyone. There is an element of truth to this, as CD sales have certainly been down, and it's clear the music industry is trying to find a new model, though I'm not sure it's truly broken, or at least waiting for digital sales to catch up. On the other end, the movie industry is certainly losing something to campus piracy, but there is still growth, even if it's short of the gaming industry as of late. In fact, the gaming industry, which is experiencing the most growth, also takes a much different stance on piracy, rarely going after the customers rather than professional pirates. It should also be noted that the biggest dent in piracy could likely be made if enforcement on piracy of physical copies were greater in certain countries outside the United States that I won't name, as tourists have been bringing back stacks of VHS tapes, audio cassettes, VCDs, DVDs, and CDs bought for next to nothing from street vendors for decades. You can even find these pretty easily in many major cities in the US.

Movies

The MPAA is newer to the anti-online piracy front than the RIAA, but online piracy is a convenient scapegoat for box office sales not living up to all expectations. Campus piracy was one of the convenient ones that was eventually brought back to reality from the absurd estimates of 40% of revenue loss (linked above). While there is still sales growth, I expect many executives are concerned about the sudden rise of game sales. I have often wondered if that is, in part, driven by the economics of entrainment hours per dollar spent, as so many games offer a much greater amount of entertainment per dollar spent than a movie ticket.

The movie really has three potential downsides to the PRO-IP Act. The first and most obvious being the negative publicity that the RIAA has enjoyed, which could lead to a further alienation of Hollywood and the general public. The second is what I discuss for game developers in the Joystiq piece, specifically the issues that arise under the new definition of a 'work' and how the overlap may play out and 'force their hand' on suits they don't wish to file. Finally, there's an issue that all media shares with respect to enforcement: many of the people who are sued don't have anywhere near the resources to pay these fines. The end result is you've successfully entered a judgment someone can't pay, had property seized that is at most tangential to the actual piracy, and received a large amount of negative press in the process. Not to mention, you've likely lost a customer, as I can imagine people who are sued by the MPAA aren't likely to head down to the movie theater on a regular basis anymore.

Music

From what I understand from many reports, the music industry, more specifically the RIAA, was one of the key backers of this legislation, but in my opinion, it seems they are the least likely to see any benefit from it. In fact, the enforcement strategy utilized by the RIAA to date has probably done more to alienate their own customers than it has to reduce piracy.

What sets the music industry apart from movies and games is there's no way to experience a song at little to no cost without risk. I think most people would love the opportunity to listen to a song or album one time before deciding whether to purchase it or not. There's no way to rent an album, and those 20 second samples on iTunes or Amazon don't do the full piece justice. Some might say that's changing, as more subscription services become available, but there isn't yet one that offers a complete catalog across all labels. Then there's the simple fact that there are other, potentially larger sources of income for musicians than record sales. The video game industry has no equivalent to a concert; disk sales are more or less all there is to it other than cross-licensing. Movies have more in common, between the box office, DVD, showings on TV, etc., but music is even far more ubiquitous than movies are, as they're in the background of pretty much every other medium, as well as most all venues and events.

And that's why the RIAA's strategy of going after the average Joe who downloads an album once in a while to try to find something new to listen to doesn't make sense. That average Joe probably has spent quite a bit on music over the course of his life, be it buying CDs or merchandise or concert tickets. And I'm sure there are many artists who would rather have people download their album in order to determine if they want to be a fan of the work rather than have no exposure as a result of their label or the RIAA suing their customer.

Ultimately, the way this hurts the music industry isn't in practical enforcement. They backed this bill because it helps their enforcement. It's an issue of image, and as the bad publicity keeps falling on the RIAA, more and more consumers are taking their entertainment dollars elsewhere. It's insulting to the consumer that the RIAA would even suggest that ripping a CD you purchased so you can put it on your iPod is illegal, even though they haven't tried to enforce that idea at this time. Ultimately, this only hurts the artists, which only serves to hurt the development of music in the US, especially for artists who can't or don't get radio time or for listeners who don't listen to what's played on the radio.

Solution?

I've long held the theory that attacking the supply is far more effective than attacking the demand in piracy situations, especially given that the demand are also often the customers you rely on to keep your business going. I'm not saying ignore every consumer. If a consumer is also sharing thousands of files that have been downloaded millions of times, then they're a distributor as much as anything else. But it seems obvious that the thresholds for enforcement need to be well above downloading one work once. The court has imposed reasonableness standards on many other areas of the law, and perhaps a reasonableness standard needs to be used here.

The goal of intellectual property rights was the balance the interests of producers and consumers so that the arts would grow and artists could prosper, and in many ways many people have lost sight of that goal. As we move further into the future, we all need to be prepared to change with the times, and acts like the PRO-IP Act attempt to bind us to business models and methodologies that don't make sense in the digital reality. By the same token, those decrying all intellectual property rights need to understand that without them, much of the media you enjoy today simply would not exist because those who produce it would have no means by which to profit from it. In a perfect world, we would have no need for intellectual property rights because there would be no piracy but there would also be unlimited exposure to new media. In our imperfect world, we need to keep sight of the balance between what both consumers and producers need to coexist in the most reasonable way. It's unfortunate that the PRO-IP Act takes a step backward rather than a step forward in achieving that balance.

This week's Law of the Game on Joystiq talks about enforcement and intellectual property.

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This week's Law of the Game on Joystiq covers having a 'game night' at your local library, church, or other such public place. It also touches on whether shrink wrap contracts are enforceable.

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This week on Law of the Game on Joystiq: Machinima.

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In this week's Law of the Game on Joystiq, fair use. Need I say more?

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On this week's Law of the Game on Joystiq, a little chat about derivative works. Read on!


Coming soon to a Law of the Game on Joystiq near you: Fair Use and Machinima. Check back in coming weeks for those two exciting topics.

In this week's Law of the Game on Joystiq, I get back to that always complex copyright issue.

Interested in what a copyright protects in the game you just released? Read on.

There's a lawsuit in progress that all consumers of entertainment media need to know about, and it's covered in this week's Law of the Game on Joystiq.

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This week's Law of the Game on Joystiq deals with End User License Agreements.

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