What does UK IP reform mean for the games industry?
This is a guest post by my friend and fellow lawyer, Jonny Mayner. IP law is pretty important to the games industry, since it governs the stuff that games are (legally) made of. Being a clever IP expert as he is, I thought I'd ask him to explain what the UK government is doing to update IP law...
Earlier this year the UK Government tasked a chap called Professor Ian Hargreaves with the unenviable job of reviewing the state of Intellectual Property law in the UK. The key question posed by the Government was "Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?".
Professor Hargreaves' answer ran to around 100 pages plus annexes, glossaries and extensive footnotes, but as he helpfully stated in his foreword "The short answer is: yes." [Jas: plus you can add to that the various shouting going on around the music, film and tech industries about whether IP law is fit for purpose anymore- like Larry Page's alleged claims to UK Prime Minister David Cameron that Google couldn't have been made in the UK due to its antiquated IP laws]
So what to do? Well, helpfully Professor Hargreaves made some recommendations on that front and in recent months the government, mostly through the agency of the Intellectual Property Office (IPO), has issued various consultations and reports on proposals for reform.
Read on for a summary of the current state of play and what they might mean for the games industry:
Copyright:
(1) Establishing a licencing and clearance system for orphan works – so that old IP can be put to further commercial and non-commercial use (orphaned works are copyright works where you can't work out who the owner is after a "dilligent search").
How useful is this going to be for games? We really don't know, but it seems less likely to be useful for games than it will for e.g. music or film. The reason for this is that, when it comes to an IP which could be turned into a game (eg a great classic book or a film) we'd guess you'll usually be able to work out who the owner is - so no issue of orphaned works arises. Plus, it's important to distinguish orphan works from abandonware: just because a title is no longer being commercially exploited (i.e. abandoned) by its copyright owner does not mean that it has been orphaned.
That said, maybe we're wrong. If any of you devs have wanted to make a game from an existing IP but couldn't find the owner, email us!
(2) Creating a private copying exception in copyright law – so you can e.g. carry on burning your CDs to iTunes without fear of being sued for it. Given that games tend to be platform-specific, allowing for format shifting of this type is not likely to impact the games world too much. That said, depending on how broadly the reform is drafted it may provide consumers with wider rights to copy their games than before. With that in mind it may be important for the games industry to make its voice heard in the consultation period lest the new law bring any nasty surprises.
(3) Creating a parody exception in copyright law – so that po-faced rights owners who can’t see the joke can’t sue under copyright law (at the moment, if you create a parody of a copyright work, you can be sued for copyright infringement even though you're trying to make a point for parody value, not actually copy/make money from the original). That always seemed like a silly state of legal affairs, but this reform should sort it out.
This reform will be good news for comedians, but I'm not sure if it will have much impact on the games industry- mainly because games don't really involve much parody. Still, it's worth knowing if you did decide go incorporate parody into your game that- eventually- it'll be legally ok in principle (though, as always, there'll probably be legal complications, eg you might intend a parody by making Chronic the World's Slowest Hedgehog, but if you sell it for money you may still get caught out by trade mark law…)
(4) Preventing the use of contracts to overcome exceptions to copyright law – so that a publisher can’t restrict users' statutory rights (including any new private copying right) by imposing restrictions in an EULA. This has the potential to introduce several changes to the drafting of EULAs, so watch this space...
Patents:
(1) Examining patent thickets as a possible barrier to market entry for small and medium sized businesses - a patent thicket is described in the IPO's preliminary report on the issue as "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology". The report is sparse on specific proposals for reform and it raises more questions than it answers, but the fact that the government is looking at this at all may be of interest to games industry stakeholders of all sizes.
General: an evidence-based approach to future IP reform
One of the most important changes proposed by the Hargreaves review was a move to an evidenced-based approach to IP reform. On other words, we should only change IP law in response to issues that have been factually demonstrated to be real issues. Issues which people claim are issues, but which they can't factually prove to be issues, don't deserve legal change. Consider what that would mean for various changes to IP law to combat issues like content piracy in the past (answer: many of them would I suspect not become law, because demonstrating the financial impact of piracy and why it needs a LEGAL solution is infamously hard).
Professor Hargreaves clearly hoped the government would take this on board and therefore be cautious when it comes to future IP law change - here's hoping...
Next steps:
So what next? Well, the Government's consultation on copyright reform is open for responses until March 2012, so the games industry has until then to make its views known. On the patents front the IPO's report also moots the possibility of a consultation to gauge industry appetite for reform or views on any specific proposals.
What ISN'T being discussed:
The list is as long as your arm, but examples include:
- No general fair use defence to IP infringement
- No discussion of whether the current copyright term (generally 70 years after author's death)
- No proposals regarding cutting edge IP issues like legal treatment of user generated content or virtual goods
- No proposals to deal with patent trolls
- No proposed clarification regarding complicated issues like when a piece of content (eg a game)is a cloned from or 'inspired by' an original
Some of these matters aren't being dealt with because the UK government can't do it without accompanying EU legal change; others because the government just doesn't consider them sufficiently important yet. Some are more for courts than the government because they require interpretation of existing law, not new law. Unfortunately, these are some of the most important issues as far as the games industry is concerned.
As a result, our conclusion regarding the impact of the UK government's legal proposals on the games industry is: not that much, really. Which is a shame (although, given the games industry had by far the least involvement in IP reform compared to the other creative industries, that's maybe not a surprise).
Anyway, we're still at the consultation stage regarding these reforms, and there will be a lot more reform required over the next few years one way or the other. As always, watch this space for any developments that will affect the games world...
Earlier this year the UK Government tasked a chap called Professor Ian Hargreaves with the unenviable job of reviewing the state of Intellectual Property law in the UK. The key question posed by the Government was "Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?".
Professor Hargreaves' answer ran to around 100 pages plus annexes, glossaries and extensive footnotes, but as he helpfully stated in his foreword "The short answer is: yes." [Jas: plus you can add to that the various shouting going on around the music, film and tech industries about whether IP law is fit for purpose anymore- like Larry Page's alleged claims to UK Prime Minister David Cameron that Google couldn't have been made in the UK due to its antiquated IP laws]
So what to do? Well, helpfully Professor Hargreaves made some recommendations on that front and in recent months the government, mostly through the agency of the Intellectual Property Office (IPO), has issued various consultations and reports on proposals for reform.
Read on for a summary of the current state of play and what they might mean for the games industry:
Copyright:
(1) Establishing a licencing and clearance system for orphan works – so that old IP can be put to further commercial and non-commercial use (orphaned works are copyright works where you can't work out who the owner is after a "dilligent search").
How useful is this going to be for games? We really don't know, but it seems less likely to be useful for games than it will for e.g. music or film. The reason for this is that, when it comes to an IP which could be turned into a game (eg a great classic book or a film) we'd guess you'll usually be able to work out who the owner is - so no issue of orphaned works arises. Plus, it's important to distinguish orphan works from abandonware: just because a title is no longer being commercially exploited (i.e. abandoned) by its copyright owner does not mean that it has been orphaned.
That said, maybe we're wrong. If any of you devs have wanted to make a game from an existing IP but couldn't find the owner, email us!
(2) Creating a private copying exception in copyright law – so you can e.g. carry on burning your CDs to iTunes without fear of being sued for it. Given that games tend to be platform-specific, allowing for format shifting of this type is not likely to impact the games world too much. That said, depending on how broadly the reform is drafted it may provide consumers with wider rights to copy their games than before. With that in mind it may be important for the games industry to make its voice heard in the consultation period lest the new law bring any nasty surprises.
(3) Creating a parody exception in copyright law – so that po-faced rights owners who can’t see the joke can’t sue under copyright law (at the moment, if you create a parody of a copyright work, you can be sued for copyright infringement even though you're trying to make a point for parody value, not actually copy/make money from the original). That always seemed like a silly state of legal affairs, but this reform should sort it out.
This reform will be good news for comedians, but I'm not sure if it will have much impact on the games industry- mainly because games don't really involve much parody. Still, it's worth knowing if you did decide go incorporate parody into your game that- eventually- it'll be legally ok in principle (though, as always, there'll probably be legal complications, eg you might intend a parody by making Chronic the World's Slowest Hedgehog, but if you sell it for money you may still get caught out by trade mark law…)
(4) Preventing the use of contracts to overcome exceptions to copyright law – so that a publisher can’t restrict users' statutory rights (including any new private copying right) by imposing restrictions in an EULA. This has the potential to introduce several changes to the drafting of EULAs, so watch this space...
Patents:
(1) Examining patent thickets as a possible barrier to market entry for small and medium sized businesses - a patent thicket is described in the IPO's preliminary report on the issue as "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology". The report is sparse on specific proposals for reform and it raises more questions than it answers, but the fact that the government is looking at this at all may be of interest to games industry stakeholders of all sizes.
General: an evidence-based approach to future IP reform
One of the most important changes proposed by the Hargreaves review was a move to an evidenced-based approach to IP reform. On other words, we should only change IP law in response to issues that have been factually demonstrated to be real issues. Issues which people claim are issues, but which they can't factually prove to be issues, don't deserve legal change. Consider what that would mean for various changes to IP law to combat issues like content piracy in the past (answer: many of them would I suspect not become law, because demonstrating the financial impact of piracy and why it needs a LEGAL solution is infamously hard).
Professor Hargreaves clearly hoped the government would take this on board and therefore be cautious when it comes to future IP law change - here's hoping...
Next steps:
So what next? Well, the Government's consultation on copyright reform is open for responses until March 2012, so the games industry has until then to make its views known. On the patents front the IPO's report also moots the possibility of a consultation to gauge industry appetite for reform or views on any specific proposals.
What ISN'T being discussed:
The list is as long as your arm, but examples include:
- No general fair use defence to IP infringement
- No discussion of whether the current copyright term (generally 70 years after author's death)
- No proposals regarding cutting edge IP issues like legal treatment of user generated content or virtual goods
- No proposals to deal with patent trolls
- No proposed clarification regarding complicated issues like when a piece of content (eg a game)is a cloned from or 'inspired by' an original
Some of these matters aren't being dealt with because the UK government can't do it without accompanying EU legal change; others because the government just doesn't consider them sufficiently important yet. Some are more for courts than the government because they require interpretation of existing law, not new law. Unfortunately, these are some of the most important issues as far as the games industry is concerned.
As a result, our conclusion regarding the impact of the UK government's legal proposals on the games industry is: not that much, really. Which is a shame (although, given the games industry had by far the least involvement in IP reform compared to the other creative industries, that's maybe not a surprise).
Anyway, we're still at the consultation stage regarding these reforms, and there will be a lot more reform required over the next few years one way or the other. As always, watch this space for any developments that will affect the games world...
Posted on 31.12.11
The Internet v CD Projekt: a Legal Perspective
This is guest post by John Wrigley, a gamer and law student
As a law student and as an enthusiastic gamer, I can't help but have noticed the recent controversy surrounding CD Projekt. In case you haven't been following it, the story goes something like this: CD Projekt release The Witcher 2 without any DRM. Some people, as some people inevitably do, pirated it. Now CD Projekt are sending letters to people that they believe have pirated the game demanding a sum somewhere in the region of €750, with the backup threat of a legal suit if the person does not pay up. Many people are quite upset about this, including Mr John Walker at Rock Paper Shotgun, whose recent words on the subject you can find here and here. This post attempts to offer an insight into the legal position behind the events. What this article isn't about is creating solutions or settling the debate, its purpose is solely to try and raise awareness of the legal doings and beings and to maybe try to challenge some of the common misunterstandings about the way the law works.
The First Argument: CD Projekt are threatening the innocent
By far the most emotive argument that is often proffered is that CD Projekt are blackmailing people by saying “Pay up... OR ELSE!” and thereby are removing access to justice and denying due process and so forth. Sadly, from a legal perspective, the case seems to be slightly different. Granted, for CD Projekt to call this a “fine” (as they did in the posts linked above) is perhaps unwise. But the principle of what they are doing (and until we see an actual copy of their letters, we can argue over nothing else) is perfectly sound, at least within a legal perspective. One obvious problem is if people are intimidated by these letters, and that is obviously something to avoid, but again, without seeing any of the actual letters that have been sent, it seems far too soon to actually make any comments about it. What we do know about these letters is that what they are offering is an out of court settlement, something which is not only allowed but encouraged by the courts. When a case is open and shut (i.e. Person A says that Person B has done something and Person B admits to it) then there is absolutely no reason to go to court, no reason to waste time and money on lawyers, judges, buildings and so on and so forth. It is trite law that it is cheaper to settle out of court than to go into court and lose, especially since judges can (and almost always do) order the loser of a case to pay the costs of the winner. So if you haven't downloaded The Witcher 2 illegally and CD Projekt cannot prove that you have then actually the entire process won't cost you a single penny. You will only HAVE to pay if you are found guilty - if you are not guilty, it won't cost you anything to refuse to pay the initial settlement and if you are guilty, it'll be a heck of a lot cheaper if you do.
Of course, one problem with this is that people may wonder how they can convince a judge that they are not guilty. It should first be noted that if CD Projekt do take you to court, they have to prove that you downloaded the game, the only thing that you will ever have to try and prove is that their proof is wrong. This could actually be easier than anticipated, as IP tracing is far from a reliable source of evidence. It is entirely possible that someone has spoofed your IP or someone has downloaded using your insecure internet connection or someone in your household has used your internet connection to download it without your knowledge or consent. This last reason seems the least persuasive - by giving someone unrestricted access to your internet connection you accept liability for their actions - legally speaking there is no other workable system. It's the same with any service which you sign up for and which you give other people use of, at least from a civil perspective. The IP spoofing is much harder to get around and also much harder to prove and does provide a legitimate reason for concern.
The easy argument is that civil cases only require proof “on the balance of probabilities” (i.e. is it more likely than not that the accused did the thing he/she is accused of?) and if you think that this is wrong then we should be having a jurisprudential argument (the theory of law) rather than one about CD Projekt's practices. But that one is only convincing to a certain point and it certainly does us no help. Sadly, the evidential argument is out of the scope of this particular post and so I'm not going to try and offer any form of conclusive point about it. I will, however, say that I personally consider that the claims of thuggery and bullying are probably unfair (although of course this depends on the actual contents of the letters being sent), I would be loathe to accept the concept of a court accepting a simple IP trace from a torrent site as being conclusive. These cases will depend entirely on the facts that can be proved, particularly in relation to what method of proof CD Projekt actually have and it will certainly be interesting to see how they play out in court.
The Second Argument: The sum asked for is too high
Other comments being made are the fact that the money being asked for is considerably higher than the actual price of the game. This argument has been met in many different ways, all of which seem unconvincing. For the pros, people are saying “Well, it's something to dissuade people from pirating!” An argument can be made that this is outside the scope of what CD Projekt are entitled to do with their civil settlements. This argument has merit, but it IS within the scope of the court to issue compensation with this in mind and there is nothing against CD Projekt offering a settlement within that range. If the person being challenged thinks that a court will give a lower level of compensation, they are more than welcome to chase it all the way through the legal system.
Another argument is that the pirates should just have to pay the retail price of the game. This clearly doesn't make any sense because then you are punishing CD Projekt for demanding that they obtain a benefit for their burden - lawyers cost money, ya know. A more reasonable argument is that CD Projekt should ask for legal fees plus the cost of the game plus any reasonable damages that are due for the effort and whatnot that chasing them down costed. And actually, that's a brilliant solution. That is what they should be doing - that's the point of a settlement, after all. “This is the minimum amount of money that we KNOW we will get. Pay it and we won't bother trying to press for more - especially since we will probably get more.” Win win. Remember kids, compromising is fun!
The Third Argument: Piracy is not a lost sale
The third argument, and the most uncertain, is that a pirated copy does not equal to a sale lost. This is a huge topic and I don't want to do it injustice, so this discussion is simply a brief overview of the legal implications of this argument. On the face of it, it is true that piracy is a lost sale. There is absolutely no evidence to suggest that someone who has pirated a game would have actually bought the game. Indeed, I would be willing to suggest that actually, many people who pirate the game would not actually have bought the game - for whatever reason they have. This is where the law of equity (a particular branch of the law which deals with moral rights and prevents people from doing anything which might affect their conscience) steps in, which (in this particular instance) says that if the gain something for which you should have given something, you aren't allowed to argue that you shouldn't have to give what you owe. In other words, because you get to play their game, it's unfair that you refuse to pay for it. Obviously this is an extremely controversial topic, but it would seem hard to defend against this concept. Even if we argue that the equitable rule doesn't apply, the underlying principle that people should not be able to obtain someone else's intellectual property (indeed something that somebody has spent time, money and effort constructing) without giving something back is one which is hard to support.
One counter to this is the idea that piracy can actually lead to a sale. This situation is less clear cut - although you gain from playing the game, you do actually pay for it and so there is no equitable dillema. Maybe an answer to this is that if you can prove that you bought the game within some reasonable window (and you can prove it) then CD Projekt should be as happy to drop the case as they they are (or as happy as they claim they are) if you bought the game and then downloaded an alternative copy. Looking forward, maybe we should consider the return of the demo in some form or other. Ultimately, it's hard to find a good solution, and to attempt to do so would be out of the scope of this article, but it certainly seems reasonable for gamers to want a sample of a game before they sink money into it, especially as promotional material can only tell you so much.
Conclusion
This article is not a conclusive argument either for or against CD Projekt, but hopefully it offers a breakdown and analysis of the main arguments being offered and the responses to them, at least from a legal perspective. Regardless of if you think that this is a bad policy, please, Internet, please stop simply saying that CD Projekt are robbing people of due justice and perverting the course of legality. There is a legitimate case for CD Projekt to be claiming against these people, at least within our current legal system. People who pirate a game are obtaining somebody else's intellectual property without compensating them from it and the law says that this is wrong. A better place to argue would be if you think that, in a civil case, a person should have to prove something beyond all reasonable doubt, as they do in a criminal case, or if we should reform the way in which people are allowed to make or accept out of court settlements. Alternatively, there's a good discussion about if what Projekt CD are doing is good from a PR point of view or if they are doing the most constructive thing possible to combat piracy in the long run. There are lots of discussions that can be had surrounding this case, I just wonder if the one currently so predominent is slightly missing the point.
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Posted on 29.12.11
Happy Holidays from Gamer/Law
What you might expect a lawyer to say at Christmas:
Please accept with no obligation, implied or implicit, our best wishes for an environmentally conscious, socially responsible, non-addictive, gender-neutral celebration of the winter solstice holiday, practiced within the traditions of the religious persuasion of your choice, or secular practices of your choice (with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions at all). Furthermore, we offer our (non-binding) best wishes for the onset of the generally accepted calendar year of 2012 but not without due respect for the calendars of choice of other cultures whose contributions have helped create a diverse global community (which is not to imply that any local community, or combination of local communities are any less valuable than any other community or the global community). These wishes are offered without regard to race, creed, colour, age, physical ability, choice of computer platform or sexual preference of the wishes. Happy (if happiness is within your belief systems) Holidays (if you recognise them).
:) Instead I'll just say have a merry Christmas! There'll still be a post or two from Gamer/Law before the end of the year though, including Gamer/Law's ten games law predictions for 2012, so watch this space...
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Posted on 24.12.11
The ESRB mobile app rating system: is it missing some teeth?
The first move towards pan-mobile industry age ratings began last week - but I'm not sure it got off to a roaring start.
The move was made by two US bodies: the Entertainment Software Ratings Board (ESRB - the body responsible for the self-regulatory model of games age ratings in the USA) and CTIA ("The Wireless Association"). In a nutshell, they have introduced a mechanism by which developers can fill out a questionnaire and then get their app rated on all participating appstores.
So who's involved in this on the platform/carrier side? Answer:
A number of commentators, including me, contribueted to an analysis piece on Tech News World about this - have a look here.
Here's some additional thoughts from me:
Does this really matter? Do we need a pan-mobile content rating system?
I’m not aware of any studies so far into the impact of mobile content rating systems on consumers, but in general terms content rating in console and PC games has been a real issue in the games industry from time to time. Clearly mobile apps and content do raise at least some rating issues, both because mobile games are increasingly similar to ‘traditional’games in content and appearance, as well as the wide uptake of mobile games by children.
At present, there is no legally enforced pan mobile rating system in the US, the UK or Europe generally and as a result different carriers/mobile platforms have adopted different standards. It seems the move by CTIA/ESRB is to adopt a pan-industry standard, which could potentially have benefits for both the members (e.g. in terms of cost or industry perception) and consumers. It could also help mobile content creators, like games developers, because harmonised regulation is easier to comply with. In other words, a pan-mobile rating system could actually be quite helpful for everyone. Conversely, it's hard to see how it really helps anyone to help separate systems for Google, Apple, Microsoft, Vodafone etc etc.
However, at the moment it really depends on the carriers/platforms whether to join the system – presumably Apple and Google feel their own systems already protect their consumers adequately. Besides which, we're not seeing much move for them to cooperate more generally either (locked as they are in a war for control of the mobile industry!)
Is this the end or the start of something big?
The latter, I think. I think the issue of mobile content ratings, and of child protection regarding mobile content more generally, is definitely likely to become more prominent and to encompass related issues in the future. For example, there are already very early signs of regulators considering whether mobile apps that sell virtual goods or promote advertising should be subjected to scrutiny where children are involved. That said, the mobile apps market is truly global, so it may be a sufficient answers to have either country-by-country legal enforcement or each carrier/platform adopting its own standards. In other words, eventually mobile may have no choice but to agree pan-industry standards, although I don’t think we’re at that stage just yet.
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The move was made by two US bodies: the Entertainment Software Ratings Board (ESRB - the body responsible for the self-regulatory model of games age ratings in the USA) and CTIA ("The Wireless Association"). In a nutshell, they have introduced a mechanism by which developers can fill out a questionnaire and then get their app rated on all participating appstores.
So who's involved in this on the platform/carrier side? Answer:
- AT&T
- Microsoft
- Sprint
- T-Mobile
- USA
- U.S. Cellular
- Verizon Wireless
A number of commentators, including me, contribueted to an analysis piece on Tech News World about this - have a look here.
Here's some additional thoughts from me:
Does this really matter? Do we need a pan-mobile content rating system?
I’m not aware of any studies so far into the impact of mobile content rating systems on consumers, but in general terms content rating in console and PC games has been a real issue in the games industry from time to time. Clearly mobile apps and content do raise at least some rating issues, both because mobile games are increasingly similar to ‘traditional’games in content and appearance, as well as the wide uptake of mobile games by children.
At present, there is no legally enforced pan mobile rating system in the US, the UK or Europe generally and as a result different carriers/mobile platforms have adopted different standards. It seems the move by CTIA/ESRB is to adopt a pan-industry standard, which could potentially have benefits for both the members (e.g. in terms of cost or industry perception) and consumers. It could also help mobile content creators, like games developers, because harmonised regulation is easier to comply with. In other words, a pan-mobile rating system could actually be quite helpful for everyone. Conversely, it's hard to see how it really helps anyone to help separate systems for Google, Apple, Microsoft, Vodafone etc etc.
However, at the moment it really depends on the carriers/platforms whether to join the system – presumably Apple and Google feel their own systems already protect their consumers adequately. Besides which, we're not seeing much move for them to cooperate more generally either (locked as they are in a war for control of the mobile industry!)
Is this the end or the start of something big?
The latter, I think. I think the issue of mobile content ratings, and of child protection regarding mobile content more generally, is definitely likely to become more prominent and to encompass related issues in the future. For example, there are already very early signs of regulators considering whether mobile apps that sell virtual goods or promote advertising should be subjected to scrutiny where children are involved. That said, the mobile apps market is truly global, so it may be a sufficient answers to have either country-by-country legal enforcement or each carrier/platform adopting its own standards. In other words, eventually mobile may have no choice but to agree pan-industry standards, although I don’t think we’re at that stage just yet.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our email updates here
Posted on 8.12.11
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