Developing Legal Issues in Gaming
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MDY argued that these "non-literal elements" did not constitute a distinct copyrighted work, and therefore could not trigger DMCA liability. The firm offered two arguments. First, the law only grants protection to works that are fixed in a tangible medium, and MDY argued that the "non-literal elements" were too ephemeral to qualify. The judge rejected this argument, holding that it was sufficient that the "non-literal elements" could be recorded by screen-capture software, even if Glider didn't actually do so. Second, MDY argued that the "non-literal elements" were not created solely by Blizzard, but by the interaction of Blizzard's software with the user. Hence, if the game experience was copyrighted, it would be the joint work of Blizzard and its users. The judge tersely rejected this argument as well.Next, on March 25 the Federal Trade Commission is going to discuss the need to change rules regarding Digital Rights Management to enforce full disclosure.
The other question Judge Campbell considered is whether Michael Donnelly, MDY's founder and Glider's author, should be personally liable for the infringing activities of his firm. Donnelly contended that because copyright is unclear in this area, and because he believed his conduct to be legal, that he should not be personally liable for the infringing activities of his firm. Judge Campbell rejected this argument, holding that Campbell was aware of his firm's actions and should have known that they were illegal.
2008 may become known as the year of digital rights management, thanks in no small part to EA's bringing the issue front and center with Spore and the ensuing backlash. These days gamers want to know what kind of DRM a game employs before they make a purchase, and for many people the inclusion of SecuROM means a lost sale. All of the sound and fury surrounding the issue has gotten the attention of the Federal Trade Commission, and the government agency is planning on holding a town hall meeting devoted to the subject of DRM on March 25.Next, Joystiq speculates that the FTC will not stop with the possible regulation of DRM but will take a close look at UELAs as well, sooner or later.
The official page describes the meeting and its aim. "Digital rights management (DRM) refers to technologies typically used by hardware manufacturers, publishers, and copyright holders to attempt to control how consumers access and use media and entertainment content," the FTC explains. "Among other issues, the workshop will address the need to improve disclosures to consumers about DRM limitations."
A few weeks back, I mentioned that the FTC was looking into regulating DRM. Well, in part on some discussions at the Game::Business::Law Conference, I have a sneaking suspicion that the FTC likely won't stop with DRM. In fact, I would be willing to guess that within the next few years, the often maligned End User License Agreement ("EULA") may fall into the realm of being regulated as further "consumer protection." Is it necessary? Well, that's a matter of opinion, really. The only certainty is that it will be able to bring in additional revenue for the government, which is certainly short on cash these days.
If the FTC opts to regulate EULAs, I see three probable scenarios to accomplish its goal. Before I get ahead of myself, I should describe what the theoretical goal of consumer protection is: to prevent companies from taking advantage of consumers. Generally, though, it isn't necessarily the average consumer who's seeing the greatest benefit from the regulations. Often it's the most uneducated consumer, which usually means the regulations tone things down to a level of near absurdity.
