Index IntroductionThesis and outlineAn introduction to video games and copyright lawVideo games: what is it?Intellectual property law protections on video gamesThe role of modificationsThe importance by Video Games in Intellectual Property LawPerspectives on Intellectual Property Law and Video GamesTwo PerspectivesAcademic PerspectivesPerspectives on ModdingCase Studies on Intellectual Property Law and Video GamesConclusion“Modding culture can be seen as a type of participatory culture, in which fans assume an active role in restructuring and modifying plots and narrative arcs for their favorite media products. Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an original essay~ Hector Postigo, First MondayIntroductionIn the modern world, where new media content is created every single second of every single day, intellectual property rights can be a complicated issue. The issue becomes even more complicated when you introduce aspects of intellectual property law such as software, code language, images, and full video games into the mix. Just as with any area of ​​law, the legal code relating to intellectual property is constantly changing – and rightly so. If litigants, businesses and individuals want to keep pace with changes in software, technology and the way media is consumed, the law must change and adapt accordingly. One of the clearest examples of this is the intellectual property laws surrounding video games. Video games are seemingly somewhere between speech, art, and intellectual property, and are therefore more difficult to address (and protect) from a legal perspective than other, clearer pieces of intellectual property. More specifically, the culture of "modding" present in the video game industry poses an interesting problem for anyone interested in intellectual property rights. Do modifications to existing video games fall under fair use or violate copyright? This research paper seeks to answer these questions, as well as the intellectual property implications of video game modding. Video games have been steadily increasing since the first invention of software and code. This has proven especially true in the current century: video game sales nearly tripled (from $5.5 billion to $15.4 billion) from 2000 to 2014, and continue to grow (Statista 2014). This statistic alone makes it obvious that video games (and their modifications) are an important point to consider when talking about intellectual property. More specifically, user-made modifications (“mods”) to video games have posed a unique problem for intellectual property law. In simple terms, a mod is when a user makes an unauthorized modification to the video game source code and changes the game, graphics, or outcome of a game. These changes currently fall into a "grey" area from a legal perspective, and their validity depends entirely on the owner's (i.e. Blizzard Entertainment) perspective. At the moment, there appears to be no legal consensus regarding the status of video game mods in relation to intellectual property. The main question of this research paper, therefore, is the following: Do video game mods inherently infringe intellectual property rights, or is there a jurisprudence and legal perspective that allows for their legal inclusion?Thesis and Outline Based on a review of case law, existing literature and contemporary perspectives, this article finds that modding represents the future of the interaction between video games and copyright (intellectual property) law. This research paper adopts the ludological perspective of intellectual property in relation to video games, focusing on the potential for interaction rather than the limitations of copyright laws. In addition to supporting this main thesis, this research paper will discuss the topic in relation to derivative works, fair use doctrine, and how the implications of this thesis could enable an integrated and regulated business for mods. Before delving into the legal implications, the article will discuss the history of the interaction between video games and copyright. This will be used as the basis for the rest of the document. Second, the article reviews existing literature on the topic, including so-called narrative and ludological perspectives on video games and intellectual property. Third, the article will cover three specific case studies that have direct relevance to video games and intellectual property. Finally, the research paper carries out its own analysis of the topic, using history, literature review and case studies on video games and intellectual property. Ultimately, the article argues that modding video games falls within the interactive perspective and therefore of fair use. An Introduction to Video Games and Copyright Law The history of the interaction between video games and copyright is nothing short of fascinating. As Greg Lastowka writes, “The main problem that video games pose for copyright is that they, like all games, are interactive processes. Video game players experience games as creative works and perform those works in the course of their play” (Lastowka 2013, np). This statement simply summarizes the unique interaction that these two legal elements have with each other. Defining video games in legal terms has also been difficult. Kent (2001) acknowledges that historians and academics have had some uncertainty in the correct definition of “video game” – some include “any form of electronic and interactive graphic entertainment,” while others limit it to “computer-based entertainment technologies” (Kent 2001 , 73). The most literal definition covers any game in digital format: however, the variety of definitions often causes slippage in legal and academic discussions of the medium. Video games: what are they? One thing is clear: video games are quite different from any other textual or audiovisual medium. One scholar has argued that the “key appeal and aesthetic potential” of video games lies in their participatory nature: “the highest and most complete form of representation is interactive representation. Games provide this interactive element, and it is a crucial factor in their appeal” (Crawford, 2011, 214). These interactive features are what have made the relationship between video games, their owners, their players, and intellectual property laws such a contentious issue in recent years. So, what is considered a video game in this current research paper? For the purposes of the thesis, the most convincing aspect of a video game by definition is in its interaction and participation – just as the quote above highlights. It is this interactive component that differentiates video games from other media and other types of intellectual property. As Lastowka (2013) states, “From the perspective of copyright law, the interactive nature of video games makes players somewhat similar to authors and undermines the authorial status of the creator of the game.game” (np). Indeed, much of the case law in the history of video games and intellectual property supports this perspective. Some have even gone so far as to say that because video game design is not “traditionally” authorial, video games in this way are “not fully protected by copyright law” (Lastowka 2013, np). Therefore, from a jurisprudential perspective, traditional copyright law may not sufficiently protect game designers as authors, nor sufficiently take into account the role of players. This may seem counterintuitive, or even an oxymoron, but the following discussion should explain. Intellectual Property Law Protections for Video Games In some ways, traditional copyright law can limit certain intellectual property rights for the game's creator, while at the same time limiting the player's right to full freedom to participate or even create authorship within the game platform. On the one hand, current copyright law only protects the code behind video game interaction. This means that aspects such as gameplay, avatars, and even screen captures are often unprotected (Crawford 2011). On the other hand, video games are becoming more social and interactive and often offer the ability to create or build within the game platform. The way video games are set up, these creations (media) are often owned by the creators or owners of the game (Lastowka 2013), rather than the players themselves. In this way, copyright law is insufficient for both players and video game creators. The role of modifications This becomes increasingly clear when you consider the advent of video game modifications – or mods. Since this is the main focus of this document, an initial discussion is needed before moving on to the legal and intellectual property implications. As Hector Postigo (2010) states, “modding is an important feature of participatory culture in video games” (np). While this scholar's discussion of modding is primarily cultural, this is an important consideration within the legal framework as well. As the author continues, “modding culture can be thought of as a point of articulation between the industry and participatory cultural practices”; furthermore, modding culture is not simply a process of industry cheating, but instead places a “high premium on modding for fun or for the love of a particular community or game” (Postigo, 2010, np). In this way, modding is not a pure and simple case of copyright infringement; rather, it represents the fine line in the participatory nature of modern media. From a technical point of view, modding is simply the act of modifying – or altering – existing video games: it is “altering the code of a game to change it in some way”. ” (JIPEL, 2016, np). One scholar defines modding as when “skilled fans dive into the backend of their favorite games to fix bugs, update graphics, or introduce new elements” (Letzer, 2015, np). Some games and companies integrate modding into their games, such as with MineCraft or Steam's Community Workshop (Letzer, 2015). Other companies and game creators actively fight against the modding community. Therefore, there is not even a consensus within the gaming industry on how to treat the modding community; that is, whether they represent a threat to intellectual property or a means of innovation in existing games. In any case, the modding community uses existing video games as a base, building the "house" (or mod) on top of them. Whether this is valid (or legal) is themain question of this article. The Importance of Video Games in Intellectual Property Law Now that the relationship between video games and intellectual property has been established, along with a brief discussion of the role of modifications in these games, one question remains: why is this topic inherently crucial to the field of copyright and intellectual property rights? The answer is quite simple: the controversial position that video games have in relation to intellectual property will only get more complicated as video games become more participatory and complicated. Therefore, addressing the issue now (and continually) is critical to ensuring that the interests of both game makers and the modding community are met. Furthermore, this is an important topic to address because, as has been stated previously, there is no clear consensus from any of the stakeholders regarding whether video game copyright law is adequately protected. There are, however, certainly opinions on the topic, as this literature review will show. Perspectives on Intellectual Property Law and Video Games There is a wide range of perspectives – legal, personal, and professional – on the question of how copyright law can (and cannot) protect video game content and, more specifically, modifications made in the context of existing video games. There is certainly case law relating to the topic, as will be seen in the case studies discussed below. However, due to the elusiveness of video games as defined above, this case law can often provide varying degrees of support for copyright protection. Historically, courts have been slow to protect even the simplest video games under copyright law (Lastowka, 2013). . For example, Atari wanted to protect its Breakout game in the 1980s. Basically a variant of Pong, the Copyright Office initially rejected the company's copyright registration, "stating that the game was not sufficiently creative to constitute a work of authorship" (Lastowka, 2013, np). This set the tone – and the rigorous criterion of originality, creativity and authorship – for video game copyright protection for the next two decades. On the other hand, one report found that “courts consider user-generated works to be derivative content belonging to the copyright owner” (JIPEL, 2016, np). Two Perspectives These early court decisions also marked the beginning of two different legal perspectives in video game copyright protection: the so-called narratology and ludology perspectives. The narratologist perspective sees video games as no different from any other creative or authorial work, while the ludological perspective sees video games as intrinsically participatory, and therefore requires a different standard of control. These two perspectives encapsulate not only the existing video game copyright case law, but also the views expressed in the relevant literature. More specifically, the narratologist perspective views video games as similar to other forms of media, and therefore inherently protected by copyright law. In contrast, the ludological perspective views video games as sufficiently different from other forms of media that they require a different set of protections. The two perspectives are best represented in the Supreme Court's decision in Brown v. EMA,131 S.Ct 2729 (2011), which directly addressed the question of whether “video games are fundamentally different from books, films, works of art, and other forms of traditional entertainment.” media." In the decision, Just Scalia wrote: "With respect to the argument that ivideo games allow participation in violent action, it seems to us more a question of degree than kind." By this he was referring to other forms of media that can be considered participatory. In contrast, Justice Alito wrote that reading a novel is a experience very different from reading a book: “When all the characteristics of video games are taken into account. Considering this, there is certainly a reasonable basis for believing that the experience of playing a video game can be very different from the experience of reading a book, listen to a radio broadcast, or watch a movie” (2751). Although this case is primarily about First Amendment rights (rather than copyright law), these opinions accurately reflect the two perspectives relevant to this paper's discussion definitions will be used as basic assumptions regarding this topic in the remainder of this topic Academic Perspectives Most academic perspectives regarding copyright law and video games fall into the two perspectives described above. Some have even gone so far as to say that video games are not protectable under copyright law because they are systems rather than content. The Copyright Statute states that copyright protection does not apply to “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work ” (US Code 102). From a ludologist perspective, “certain elements of video game design may even be excluded from copyright protection” because games are often “primarily systems and procedures that guide player behavior” (Lastowka, 2013, np). One scholar, Boyden, defends this perspective in particular: “Let's imagine that there is a rule that 'novels are not protected by copyright,' but that a novel's plot, characters, setting, dialogue, and cover they all were. What would be the point of such a rule?” (Boyden, 2011, np). In other words, Boyden compares the integral parts of video games to the integral parts of a novel or other work of authorship to emphasize that all games (including video games) are abstract systems. Because of this comparison, Boyden and others argue, the game should be excluded from copyright law entirely. Boyden goes into even more detail to defend this perspective, and it's worth quoting at length: The game experience is provided by the players, not the game designer. Even video games, despite being made up of software, audiovisual elements, plots, graphics and characters, still have a core that is not protected by copyright: the actual game. Systems are shells into which users pour meaning (Boyden, 2011, 479). Therefore, the ludological perspective on this topic argues that video games fall into a category of their own, while the narratological perspective maintains the traditional line of copyright law. Despite this perspective, it currently appears that the “disclaimers that players agree to when creating content will likely be enforced by courts and limit any potential copyright claims by players” (JIPEL, 2016, np). Therefore, the mainstream seems to be driving the narrative line. But what does the existing academic literature have to say about video game modifications themselves? Perspectives on Modding Within the modding community, there is also a variety of opinions regarding the potential benefits of modding for both game makers and players (or consumers). As Letowska (2013) states, “Critics of the rise of video game co-creation point to the fact that companiesof video games retain most of the economic value produced by the free labor of the players", while on the contrary "those with a more optimistic vision of co-creation - creativity in video games generally advance arguments substantially consistent with those advanced by the early supporters of Web 2.0 ” (np). In other words, those in favor of cooperation and modding in video games argue that this interaction will benefit both the innovation of game companies and producers, and those who play – and intrinsically interact with – the game. More specifically, some authors have argued that “Player participation in video games operates in a non-market cultural sphere that is normatively superior to the domains of commodified culture” (Benkler, 2006, 271; Burri-Nenova, 2010). Therefore, while game producers may have intellectual property rights in their game software, content produced by users and players should also be protected for those who created it. While it may seem like a no-brainer and not directly relevant to a legal discussion, this perspective fits into the ludological perspective of video games in relation to copyright law. Any discussion regarding copyright law should include the interests of both the video game (and modding) community and those of the video game industry. Tyler Ochoa (2012) points out that "if we put aside the contractual issues surrounding player authorship in the context of video games, there appears to be no reason why players cannot qualify as authors under copyright law when they use robust creative tools provided by video games” (959). Another scholar supports this perspective, stating that “Even in cases where players do not have authorship tools, many players today use third-party software and technologies to copy and reproduce particular elements of video games” (Scacchi, 2010, 17). This view of video games as authorial tools, rather than as consumable media, poses a problem Interesting to copyright law and intellectual property discussion further highlight this discussion, the document can now move on to specific examples of the topic. Case Studies in Intellectual Property Law and Video Games In order to adequately understand the underlying issues of applying intellectual property to modern video games, it is necessary to examine specific cases of intellectual property law and the ideas explained above the work. Therefore, this article focuses on two case studies specific to the topic; the former is a legal case and supports a narratological perspective, while the latter is an example of how modern video games can be interactive (and why this can be beneficial for all parties involved). The first case is Midway Mfg. v. Arctic International, while the second involves the popular game MineCraft. The first court case involved Midway Manufacturing (the maker of the popular Pac-Man and Galaxian games) and Artic International, which allegedly created games that infringed Midway's intellectual property rights. The defendant's argument was largely that arcade games were not a “fixed” medium, but rather something that players interacted with to create their own content. In this way, even more than thirty years ago this case has relevance to modern discussion. The opinion written by Chief Judge Cummings (for the Seventh Circuit Court of Appeals) in Midway Mfg. v Artic International functions as a sortof antithesis to the perspective presented above. In his 1983 opinion, Cummings wrote: “Playing a video game [is] a bit like arranging words in a dictionary into sentences or painting on a palette into a painting. The question is whether the creative effort in playing a video game is as sufficient as writing or painting to make each performance of a video game the work of the player and not the inventor of the game” (999). In response to this question, the court found that it was not creative enough. Instead, Cummings wrote that “Playing a video game is more like changing the channel on television than it is like writing a novel or painting a picture” (999). Therefore, this case sets the tone for those who take a narratological view on video games, maintaining traditional intellectual property rights and copyright law for video games as for other media. The other case study relevant to this discussion is much more contemporary: the hugely popular game called MineCraft. In simple terms, the game provides players with the basic elements to build their own world, as well as interact with it and other players in the way they want. As Lastowka writes in another piece, MineCraft is about “letting people discover their own creativity, even if they have no initial intention of being creative” (Lastowka, 2016, np). In this way the game is the complete antithesis to the narratological vision of video games. While there is inherent gameplay, the vast majority of MineCraft interactions are player created. This change alone can challenge anyone's view that all video games fall under the narratological perspective. As Lastowka (2016) writes, “Most developers in the industry are immersed in the logic and culture of intellectual property,” which holds that “game developers should create content and players should consume it.” In this way MineCraft is stark contrast to this logic. The game involves user participation and even suggestions from the players themselves. The game works more like the proverbial word processor described above than almost any other video game and users to act as game creators and developers, rather than keeping it one-sided. In this way, the game represents at least one way that game developers and players can get around intellectual property issues. Lastowka has an important caveat: “ Intellectual property has been and will continue to be essential to the development of video games as an art form” (Lastowka, 2016). However, games like MineCraft can satisfy both the intellectual property rights of the owner and the creativity of the players. Based on the above discussion, this research paper can come to several conclusions as well as its own arguments. First, by considering the history of video games and intellectual property, as well as by reviewing relevant literature and case studies on the topic, it is evident that there are divergent opinions on the role of intellectual property in video games and related media. However, it is equally clear that these opinions most often fall into one of two camps: narratology or ludology. While these may seem like overly specific words, they essentially describe viewing video games in relation to other media. Either video games are intrinsically based on interactivity and participation (the ludological perspective), or they are simply advanced plots with clear authorship (the narratological perspective). While there are certainly other perspectives on the topic, these two perspectives represent the,.