Slaying Monsters of Copyright Before They Climb The Spire of Creation

Slay the Spire and Monster Slayers are both roguelike deck-building video games in which players attempt to complete a series of dungeons comprised of distinct categories of encounters, including combat, merchants, occult rituals, and campfires. Both games allow the player to equip a few items to give enduring boosts to core stats. Both games allow the player to make constrained choices about which encounter to pursue next. In both games, combat is presented in a 2D, side-view with a hand of playable cards held in the foreground; playing cards prompts simple combat animation movements depending on which kind of card is played.

Slay the Spire released on Early Access in “late 2017,” with a full release in January 2019. Monster Slayers was initially released in March 2017.

I’ve spared a lot of other details of the overlap between these games. Is this copying? Plagiarism? An infringement of intellectual property?

Probably not, no—even though it’s genuinely difficult to describe these games in a way that makes them sound very distinct from one another.

So, how similar can two video games be before there is a problem?

 

I. The Purpose and Limits of Intellectual Property (in a paragraph or two)

 

The concept of genres, generally, presents challenges for intellectual property protection. In both the arts and the sciences, most people understand and accept that there are concepts, toolsets, and constraints that tend to push creative works towards certain points in the same way that the center of a galaxy holds the planets, stars, and cosmic dust in orbit. Debate rages around some points of overlap, some outliers, some fringe data points– but people nevertheless use terms for genres and categories as though these terms have meaning. Pop songs tend to sound similar to one another, but are usually recognized as distinct from jazz, classical, or metal. First-person shooters look and feel similar to one another, but are usually recognized as distinct from real-time strategy, puzzle, or fighting games.

Law is always an effort to balance competing claims. Sometimes those claims are brought by sentient parties. Sometimes those claims are brought by reason itself. Intellectual property law, generally, is an effort to help creators (of various stripes) realize gains from their efforts, but it is quickly obvious that there must be room for many creators. Different categories of intellectual property do this in different ways. Patent law (backed by cases like Mayo and Alice) prohibits ownership on the laws of nature. Trademark law recognizes that merely describing a good or service is a very weak basis for a trademark and therefore merits very weak protective power. Copyright law understands that art draws from a common area of tools, techniques, and cultural concepts that allow art to operate and function as a means of expression and communication. Copyright law uses the term “scenes-a-faire” to describe those elements of artistic expression which are so common or fundamental that to grant copyright protection to it would do meaningful harm to the capacity of future creators.

In considering computer programs, the Supreme Court recognized that the use of a menu in a computer program could not reasonably be subjected to copyright protection; it was just a foundational part of how users used programs. The Court didn’t call computer menus “scenes-a-fair” in this ruling, unfortunately—probably because computers were relatively new devices and also because “scenes-a-fair” is historically tied to ideas in literature. I don’t think anyone else would use “scene-a-fair” to describe ideas in video game development in 2020; I’m just ahead of my time, which is to say, I’m wrong until the rest of the world catches up to me.

Video games have an established history of dealing with similar products in a small market. Games that displayed the player character’s hands and gun in the foreground and focused primarily (or exclusively) on navigating a level and shooting enemies weren’t widely called “first-person shooters” for most of the 1990’s; we called them “Doom clones,” in reference to the singular, incredibly successful game that defined the style of the genre for that decade. There is current debate over whether to make a similar linguistic shift around the use of the adjective “MetroidVania” as a descriptor of… well, it’s a matter of debate just what it describes (but the term is a reference to two popular and successful games, Metroid and Castlevania).

Slay the Spire and Monster Slayers both draw on basic, well-established genres, tropes, themes, and mechanics that are extremely unlikely to be subject to copyright protection. If campfires, dungeons, level-breaks, repeated run-throughs, block cards, or turn-based strategy could be “owned,” it would very seriously hurt the ability of other game developers to make new games.

 

II. If This Doesn’t Cross The Line, Is There a Line to Cross?

 

So, if there is room in the genre of deck-building and rogue-likes for both Slay the Spire and Monster Slayers, is there still such a thing as copyright infringement? If these games aren’t too close, is there such a thing as too close?

The easiest way to identify infringement would be the art-assets themselves. Although the design layout and placement of the art assets is similar, the art style and the actual images are very different between the two games. There are also some meaningful differences between the mechanics of the two games (Monster Slayer allows for the permanent unlocking of benefits for future run-throughs, for example). Generally, the similarities between the two games can be accounted for by noting that both games rely heavily on well-established and understood features of games and the relevant genres. Two games can be very similar without infringing on one another if both games rely heavily on widely- recognized tropes and themes without significant addition, detraction, or transformation.

 

III. Conclusion

Something that copyright and trademark law have in common: your claim to legal protection is generally better when you’re more creative and original.

Animal Crossing: New Horizons Shows Us A New Approach To EULAs and TOS

Within a few minutes of starting Animal Crossing: New Horizons, I thought this month’s blog post would be about Tom Nook’s financial crimes. However, I discovered something even more interesting (and less claimed by internet memes) in the game: the way the designers worked legally significant content about the game into the game.

 

Unlocking the EULA Comprehension Achievement

In the game Animal Crossing: New Horizons, the player guides a character through the process of settling a deserted island and transforming into… well, approximately whatever the player desires, but the game guides it somewhat in the direction of a small tropical real estate development and/or vacation getaway spot. In the process of building, landscaping, exploring, and creating, players can visit the Islands of other players (friends or strangers), either through local or online connections.

In the context of the game, these visits are done by taking a character to an airport on the island and making travel arrangements with the NPC behind the ticket counter. This NPC (a Dodo bird named Orville, employed by the Island’s sole airline, Dodo AirLines) explains the details of the travel arrangements in a carefully and specifically-worded way that analogizes device connectivity to airline travel. For example, Orville presents the option to open or close the island’s airport to incoming flights—a decision that translates to making the player’s device available for connection with other devices.

The result is that the substance of explaining that using the game feature of visiting islands will connect devices and may result in unpredictable game play experiences is actually explained in the game. It is explained one sentence at a time, by a cartoon bird; it is not presented buried somewhere in a massive legal document that is consistently ignored and forgotten. This is a completely new approach to thinking about how to help players understand EULAs and TOS agreements. This is presenting the meaning of a document with every effort bent toward comprehension and understanding.

 

A New Recipe

This multiplayer feature has the potential for good fun, but it also involves some potential risks and concerns, particularly for a game intended to be suitable for players of all ages. Nintendo was clearly aware of the potential for misuse of player interaction, and they wanted all players, even (or especially) younger players, to be meaningfully informed about player interactions.

What deserves the most applause here is that Nintendo wanted actual comprehension on the part of the player. Nintendo diverged from the approach almost every other game has taken for the last 20 or 30 years. Plenty of games include a pop-up of a 5,000 word EULA and TOS agreement somewhere in the installation process, and it is easily ignored and forgotten. Most developers and publishers consider that “good enough”; they either don’t think it’s possible to do better, or they don’t really care that much if something bad happens that was disclaimed somewhere in that wall of dense legal text.

This isn’t easy to do, and I don’t know if every game could do it, but there’s no question that a lot of games could make some effort in this direction. Most modern games could be clearer about the technological and/or legal consequences of using certain features in a game. Perhaps the core of succeeding in this endeavour is to imagine the player as a friend that the developers want to help, and not as an adversary that the developers want to con.

 

Designing for Comprehension

Maybe it’s pure self-interest, or maybe it’s a genuine care about the customer, but Nintendo wanted to explore another method of communicating concerns about device connectivity to the player. Nintendo could have gone with the easier route. They could have put all of the device connection options in a game menu. Instead, Nintendo recognized that they could make both the technical and legal dimensions of this a party of the game itself. They could have a character in the game explain what is happening and what the consequences will be. Perhaps most impressively, they managed to do it without trivializing the player’s decisions or oversimplifying them. By making 3-4 sentences of a legal document a part of the game play experience, Nintendo increased actual comprehension and awareness of the risks at least a hundred-fold.

Maybe all of this started with just one sincere question at a brainstorming session early on in development: “Hey- what if we wanted the player to ACTUALLY UNDERSTAND the technical and legal jargon we usually just throw in the click-wrap pop-ups that everyone ignores?”

Actual Enforcement of Trademark and Copyright Laws

There are two discussions to have about intellectual property in the ecosystem of the internet: one is about what laws, policies, and procedures are fair, ideal, economically optimal, and so forth; the other is a discussion about what is workable, functional, or feasible.

Actually enforcing trademark, copyright, or telecommunications law has proven to be a significant challenge in the 21st century. It is worth remembering that the distribution of songs on Napster was a violation of copyright law from the day the site launched. The legal action around Napster was only partly to settle any ambiguity around the question of whether digital copying and distribution of media constituted infringement—the new chapter that opened with Napster was a world in which copyright infringement became almost unenforceable.

AN ENVIRONMENT OF MISINFORMATION

The public perception of how copyright and trademark law work has been significantly shaped by the inability of rights holders to enforce protections over their trademarks and works. In a recent discussion on a potential trademark opposition, the comments on YouTube included numerous references to the abundance of available products that would be potentially infringing the trademark in question. I cannot be sure about why attention was drawn to these examples, but I suspect that many people thought that the availability of [potentially] infringing goods is evidence that a trademark is invalid. I’m pretty confident that the TMEP does not specify that trademarks are invalid if they are infringed.

The internet is awash in examples of copyright and trademark infringement. Most memes involve at least copyright infringement (transformative analysis notwithstanding), if not also trademark infringement. Etsy has published guides for its sellers to specifically point out that the availability of other infringing products does not mean that the product is not subject to trademark or copyright protection.

BUILDING SOLUTIONS WITH AN EXPECTATION OF RESISTANCE

The problem is not just a question of whether a work ought to be subject to protection, or the scope of the protection. The problem is also how to enforce those protections. Adobe, Twitter, and the New York Times Company have been working on a new solution: The Content Authenticity Initiative. The idea, still in its earlier stages, seems to be a kind of metadata tagging system to allow images to be traced back to their sources—thereby giving credit to the original artist or photographer.

There are, I’m sure, concerns that adding such traceability to images compromises security, insofar as it compromises anonymity. It always seems to be the case that those who want to optimize their security and anonymity tend to avoid products and services provided by the market-dominant companies. The question of whether preserving anonymity is in the interest of either the internet or society is a larger discussion for another post (or maybe another blog entirely)—but as far as copyright and trademark are concerned, reducing anonymity is essential in adjudicating infringement claims.

I’m not sure if the idea will ever see implementation. I suspect that if it does, it will be used more as an opt-in tool for communities of artists and rights holders to track their works. This still has very useful implications, but I have little doubt that those who want to find ways around it will be able to do so. It is the nature of the digital era to be continually skirting around efforts to enforce the law, particularly where the capacities of new technology and new media have made [re]production and distribution possible in a new way and to a new extent. It feels like there is a cottage industry build around fighting and breaking any efforts to enforce copyright or trademark protections, and the ongoing escalation between the rights holders and the resistance has lead some industries into places they might not have otherwise gone. I suspect that always-online gaming would not have become as prevalent as it now is if previous, off-line DRM efforts had not been so viciously demolished—and I further imagine that loot boxes and “surprise mechanics” would not have become an industry norm without that push towards always-online game models.

CONCLUSION

I don’t think I can win any prognostication points for predicting that this war will continue through 2020. If this Content Authentication Initiative does see implementation, it will be undermined and circumnavigated.

 

My Borderlands 3 DLC Idea: Claptrap Files for a 1201 Triennial Review Exception Hearing

I. Story Of a Lonely Robot

In the Borderlands series, a megacorporation (“Hyperion”) made a product-line of 3-ft tall, one-wheeled robots: the CL4P-TP Steward Bot. In the very first moments of the first game, the player is introduced to one such unit, who introduces himself as “Claptrap.” This robot became the face of the game (the way Teemo became the face of League of Legends, despite over 100 other characters to choose from), and “Clappy” has been a major feature of Borderlands 2 and 3 (often as comic relief). In one DLC add-on for Borderlands 1, Hyperion reprogrammed Clappy to lead a revolution (“The Robolution”) to kill enemies of Hyperion, but the effort backfired and Clappy also fought against Hyperion. The incident led Hyperion to discontinue the product line and destroy all existing models—however, Clappy survived the extinction event. A decade later, as the sole survivor of his species, Clappy undertakes the task of building a companion; he asks the player to find and salvage parts from CL4P-TP units found in the course of the game’s adventures. There’s just one obvious, glaring question:

Is Clappy violating section 1201 of the DMCA with this quest?

17 USC 1201 generally prohibits getting around the technological measures on a device to use it in some way outside of the intended user experience. It’s actually a lot more intricate than that; there are a lot of exceptions to the prohibition, and there is a cycle of reviews (to be held every three years, the fancy word for which is “triennial”) built into the statute.

 

II. Analysis of 1201 (a)(1)(A) Violation

Is Clappy “circumventing a technological measure”? It is reasonable to presume so, given the context of the story. We know that Clappy was built as a Hyperion robot, and accordingly has information and ability to bypass Hyperion technological measures. In a DLC episode for Borderlands 1, Clappy wages an open, violent revolution against the Hyperion corporation, which could be reasonably interpreted to indicate that Clappy is no longer an employee of Hyperion. Furthermore, in Borderlands 2, a software upgrade for Clappy is illegally obtained and installed in Clappy. Clappy’s situation is therefore like that of a former employee who has the knowledge to circumvent technological measures but no longer has the authority to do so.

Is Clappy accessing a work that would be protected by copyright law? Computer software is generally subject to copyright (though some exceptions apply).  If Hyperion were able to get a copyright registration on the CL4P-TP software, they would likely have a strong case against Clappy for violating section 1201 of the DMCA.  Clappy’s best defense would likely be to argue that the software at issue is not subject to copyright, because that would stop the case before it even got started. However, that argument seems unlikely to work because the software is almost certainly subject to copyright.

Nothing else in the statute is relevant to Claptrap’s case. His project is not subject to (g) encryption research exception or (d) library/non-profit/education research. Clappy is arguably a government entity (if the Crimson Raiders are a government entity), but he is not acting pursuant to an investigation, so (e) is not relevant. A CL4P-TP is not an analog device, so that also makes paragraph (k) irrelevant. Paragraph (i) is not relevant because (i)(B) requires the absence of a conspicuous disclosure of the gathering of personal information—it is reasonable to assume that Hyperion has made very conspicuous disclosure about the wanton invasion of privacy that the CL4P-TP unit perpetrates. Paragraph (j) exception for security testing does not apply. There might be a dedicated robot to prevent minors from accessing material on the internet (the Borderlands 2 Captain Scarlett DLC did feature a robot obsessed with censorship and copyright enforcement, but that robot was distinctly not of the CL4P-TP product line). The only other paragraph that might be relevant is (f), which allows for reverse engineering to allow for interoperability. The game does not provide enough details to be certain as to the nature and extent of Clappy’s circumventing of the CL4P-TP parts the player brings back to him, but I think it’s safe to presume it goes beyond the exemptions allowed in part (f) of the statute.

 

 

III. Hyperion Abandonment: Claptrap’s Issue

Another argument for Clappy’s defense is that Hyperion abandoned their claim to any rights in the CL4P-TP unit after the ill-fated Robolution and subsequent discontinuation of the product. This would be an interesting case for a few reasons. First, copyright abandonment is a largely untested area of law. Whispers of abandonment (or “orphan works“) almost always involve a defunct company or a confusing acquisition of a company in which it is unclear who holds the claim to the copyrighted material.

The abandonment argument highlights some of the meaningful differences between copyright and trademark protections. There was a trademark case in which a broadcast network had stopped the production of an entertainment program, but continued to claim rights in that trademark. Crucially, trademark does not have a fixed time limit (copyright does) and trademark is explicitly connected to an actual use in commerce (copyright does not require a use in commerce). This is why abandonment in copyright is a very different situation from abandonment of a trademark. The fact that Hyperion stopped making or selling CL4P-TP units would likely affect the trademark, but not the copyright related to the product.

Perhaps the ultimate test for copyright abandonment is whether a company takes action against an alleged infringer. In some non-legal sense, the copyright is “abandoned” when no one fights against the infringement of the work. But in more accurate legal terms, a copyright is abandoned when no one is in a position to fight against the infringement of the work. Discontinuing the CL4P-TP Steward Bot product, scrapping existing stock, and ceasing service on existing products might be taken as strong evidence of trademark abandonment—but not of copyright abandonment.

Because robots of this sort are still new, it’s not entirely clear how patent law might apply. Indeed, it’s currently unclear just how patent law is meant to fit with software, so the layers of technology involved in a CL4P-TP unit are something well beyond the contemplation of the current configurations of US intellectual property law.

Fun fact I learned while doing research for this post: Robot Patent does not have to do with what we currently think of as either patents or robots.

 

IV. Clappy, the Exceptional CL4P-TP?

Could Clappy seek an exception during a triennial review, as provided in (a)(1)(c)?

Given the five factors listed in (a)(1)(C), (i)-(v), Clappy has a reasonable chance of having his case approved as an exception. It’s unclear how he would fare as to (i), but he wins on (ii) as a matter of preservation; (iii) doesn’t particularly apply unless someone wants to do research on CL4P-TP units; (iv) is an interesting point that ties back to the abandonment question, but to the extent the Hyperion is not interested in making more CL4P-TP units, there is no market impact (and only making 1 copy for non-commercial use is a negligible market impact anyway). Finally, the discretionary factor, (v), is up to the Librarian of Congress to determine whether Clappy’s project is an appropriate exception to this section of the DMCA. The circumstance of being the sole survivor of a species seeking companionship is a likely cause for such an exception.

 

V. Final Thought: Is the Player Violating 1201 by Helping Clappy?

The player doesn’t provide specific means of violating 1201 (a)(1). The primary concern for the player is that 1201 (a)(2) and 1201 (b)(1) both prohibit devices whose purpose in the circumvention of technological measures which protect copyrighted material. But the player doesn’t provide such a device; the player just gets the CL4P-TP parts themselves. This is effectively like dumpster diving for old cell phones or laptops. That, by itself, isn’t a violation of 1201— which makes sense because there are uses for those objects that don’t involve the data stored on those objects. That said, there might be a contributory infringement claim under a different statute, as (c)(2) explicitly clarifies that 1201 leaves infringement claims open to the possibility of contributory infringement.

 

 

What Slay the Spire can Teach About Digital Media Access Decisions

When I heard that iTunes was scheduled for destruction, I was baffled and alarmed. I have since learned that the service is being split and re-branded, in a sort of platform-mitosis. But I had several conversations in which my interlocutors were not persuaded of the merits of media ownership over streaming media. Having collected my thoughts, and faced with Google’s Stadia announcement as well as even the phantasmal threat of an iTunes closure, I hope to make a case here that media ownership reduces wildly unpredictable and uncontrollable elements of media consumption.

Slaying The Spire, With Just a Little Luck (Or a Lot of It)

Slay the Spire is a rare case in which combining a lot of ideas into a game doesn’t make the game feel chaotic and confusing. The game consists of progressing through the levels of an eponymous spire, each level consists of some encounter or event—very, very often, a combat event. Combat in this game is a resource-management card game: using a limited pool of “energy,” cards are played that either deal damage or prevent damage from being taken. Each card costs a different amount of energy, so strategic choices have to be made to optimize offense and defense. At the end of a combat, the player is presented with three choices for a new card to add to the deck. The same deck is carried through the spire, so each completed combat presents an opportunity for new cards for future encounters.

Slay the Spire gets its replay value from the unpredictable factors that permeate the game. There is randomness within the combat encounter, as a player’s options are defined by the cards that are drawn from the deck on any given turn. Then there is further randomization in the events themselves (what enemies you fight, if any, on any particular level of the Spire). Slay the Spire adds randomness in the building of the player’s deck: there are no guarantees that you will even have the option to add a certain card to your deck in a particular run of 50 levels in a Spire. (I once spent an entire run through a Spire trying to assemble a deck centered around one specific card that would greatly amplify my defensive capabilities—I never even saw that card, and inexplicably still got to the final level.) And I haven’t even discussed the role of Relics in the game, which can provide small bonuses or fundamentally alter game mechanics. All of these unpredictable, randomly-generated chances and choices give the game replay value and make it interesting, fun, and challenging. Putting choices out of a player’s control can be an element of a great game, but it’s not a part of a great day.

 

Unpredictable Elements

There are a lot of components involved in the everyday digital tasks that fill (and sometimes sustain) our lives. The device has to work properly, it has to connect to a network, the network has to function, and we also rely on the server that hosts the data we want. Anything from dropping a cell phone to a power outage to an unplugged cable somewhere in a distant city can cause the entire process to fail. It is really amazing and awe-inspiring that the entire system works as well as it does. Of course, sometimes, something goes wrong.

For purposes of today’s discussion, I think it’s helpful to divide the possible problems into two categories: those in the user’s control, and those outside of the user’s control. So, whether I charge my cell phone, whether I spill water on my computer, whether I use a program correctly—those are, practically speaking, in the domain of the user. However, the city’s electrical power grid is not something a user can single-handedly maintain or repair. Similarly, the user cannot control conditions at a distant server farm, or control the telecommunications network that links the user to those servers.

This, it seems, is where I diverge from so much of my demographic cohort. I don’t want my access to media to rely on these two additional components (telecommunications and data-holding servers). Maybe I would feel differently if I had better experiences, but I have repeatedly been unable to play games or watch movies because at least one of these components has failed. I have encountered this setback for over a decade- in some cases, I have experienced it daily, over the course of months. In contrast, when I think back to those halcyon days in which I owned my media, the only obstacle was a scratched DVD or a VHS tape that was just too-well-loved (we all have a childhood story of the tape that we watched so many times that the playback became warped and distorted).

Conclusion

The unpredictable nature of the available choices in Slay the Spire keeps an otherwise repetitive game novel and engaging. By forcing the player to consider various probabilities and possibilities, the game creates challenge and the kind of frustration that invites a player to learn, try again, and do better next time. I cannot understand the kind of person who willingly invites this kind of challenge and frustration into the process of trying to listen to music or watch a movie. Conversely, if a player had control over any of these random elements in Slay the Spire, the game would be easier. For both Slay the Spire and media access, generally, the same rule applies: the more control one has over the variables, the less challenging the experience.

There are other issues implicated in this debate that I didn’t touch on: the data privacy questions that come with streaming and DRM protections, the reasonable efforts of artists and publishers to protect their copyrights and profit from their works, the legal status of digital goods, etc. Those issues deserve consideration (which is why I have written about them before and will do so again), but I wanted to keep my focus narrow for the sake of clarity. My perspective on this question can be distilled to one personal point: I do not feel that there is evidence to support the claim that US telecommunications networks are more reliable than I am. I simply trust myself more than I trust those corporations, their services, and their infrastructure. Likewise, I trust myself more than I trust the media companies that provide the platforms and media. This is true on a day-to-day basis (for telecom), and it is true for long-term planning (media providers make no promises that they will last longer than my interest in the media they provide).

I can trust electricity providers—they have proven themselves. Power outages certainly do occur, but their frequency, cause, and duration are within acceptable parameters.* Maybe it comes down to what inconveniences, unknowns, and probabilities we are willing to accept. I can live in a world where my electricity is out for maybe 30 minutes per year. I’m not excited to choose a world in which I can access my own leisure at the leisure of so many other people.

 

 

 

 

*The fact that power failures necessarily cause network failures would be a meaningful riposte if my point were strictly confined to unadjusted uptime comparisons.

How Pirates Change Games (It’s Usually Not An Improvement)

Sea Of Thieves: It’s Not Called “Sea of Cool Guys” – Mike Krahulik

Sea Of Thieves is a game where people who want to be pirates can be pirates. Some players really, really  get into the role. Every online game community has experienced some trolling and griefing; there are always players who invent their own game, though it’s always the same game, in which the objective is to make other players unhappy. The developers of Sea of Thieves specifically designed space for that kind of player—unlike other games which seek to curtail negative behavior and ban players who ruin a good time for others. In a game about pirates, wanton aggression has a place.

 

When You’re a Professional Pirate…

It took me a while to understand how copyright infringement (and counterfeiting) came to be called by the same term that was previously reserved for attacking a ship, killing the crew, and stealing their stuff. The two crimes don’t really look similar: copying a digital file rarely involves a cutlass or a flintlock pistol, taking barrels of rum or chests of gold, and typically doesn’t involve boats at all (except when moving a lot of counterfeit goods internationally, I guess).

I think the term makes more sense from the perspective of the owners of the rights. Pirates of the 15th-19th centuries were hard to find, hard to predict, and hard to pursue. Sometimes their attacks wouldn’t be noticed for months, as it was hard to get good cell phone reception in the mid-Atlantic in the 1600’s. So, when music, movies, books, and games started getting copied and distributed, and rights owners struggled to identify who was doing it, where they were, or what they might do next, as they completely disrupted the industry’s ability to sell and distribute their wares, I imagine pirates came to mind.

 

Countermeasures

Media industries reacted to piracy differently, as best fit the particular medium. The music industry moved away from physical goods and into the digital marketplace. The iTunes Music Store was, in many ways, like the P2P networks that had threatened the industry, except that Apple was the only one seeding and they charged for each song.

The video game industry took a different approach. After a short-lived effort to encrypt physical copies, the industry moved to a digital distribution system. This was easy enough, and platforms like Steam and the Play Station Store were already moving the industry in this direction. The next move, however, was for the internet to start shaping the way games were played: online gaming became increasingly popular, and developers and publishers realized that it was easier to keep track digital copies if devices had to connect to the company’s servers. It was a natural fit: the games already involved internet connection, so it wasn’t much more work to have the serves check to see if players had authentic copies of the games. Because the game required player to be always online, this method became known as Always-On DRM. When it worked well, it was something that honest players would never notice or think about. But it didn’t always work so well.

Rebellion

The new system worked well for some games. Other games… well, suffered. Sometimes, the online connection requirement was obviously completely artificial and frustrated players because the setup made no sense. This exacerbated problems in cases of poor execution: when a server couldn’t connect, it was even more frustrating when the server wasn’t necessary for the game experience. Even today, not everyone has a consistent, stable, high-speed internet connection (especially in the US). Many players just wanted a simple, single-player experience, and Always-On DRM interfered with that. The method created an environment that only allowed players to play when the company was able to facilitate it; if the server was down, or the connection was slow, the game was unplayable. This upset people who paid for a leisure product and then found out they could not use it at their leisure. By increasing friction and fuelling resentment against the game industry, some game companies suffered as they tried to implement Always-On DRM. The artificial inclusion of Always-On DRM to the reboot of the incredibly popular and successful video game SimCity is credited with its failure (notably, the execution of the Always-On DRM was sub-par, as the server was frequently down or buggy).

 

Pirate By Design

Sea of Thieves found success as a game by embracing a certain attitude that the rest of the industry had been fighting for decades. The developers made a space for people who want to undermine the work of others. So far, it’s been an interesting experiment that I can only predict will culminate in the coagulation of that particular kind of trolling, griefing player. I see it as a kind of prison in which the inmates believe they are at a theme park. Maybe the game will eventually give us some kind of data about trolls who revel in ruining the joy of others. Maybe it will teach us something about pirates.

There is already a lesson about piracy for video games. In the early 90s, piracy was built into the business model of some companies. They called it “shareware,” and the idea was that people would copy and distribute a portion of a game. The developer hoped that this would serve as a sort of advertising, and people who enjoyed the shareware portion of the game would then purchase the full game. In 1993-4, idSoftware proved that this model was feasible with one of the most popular games of the 90s: Doom was distributed widely as a shareware product and the company made enough profit for the head programmer and the lead level designer to each purchase a high-end sports car. This year, idSoftware released Rage 2; unsurprisingly, the new parent company, ZeniMax, did not opt for a shareware distribution model. The video game industry has changed over the last 30 years. It takes a special combination of product, customer, and ecosystem for it to be a smart choice to give away a third of your product for free—but it’s not an impossible dream.

Today, piracy remains a problem for the video game industry, but new legal challenges (some with more legitimate basis than others) have proven more urgent: legislation of loot boxes, esports contracts, prosumer sponsorship deals and disclosures, copyright infringement within the game, and copyright infringement for streaming and video uploads.

Maybe that’s the best reason to keep the term “piracy” for copyright infringement that involves copying the entire work and distributing for consumption as a counterfeit or inauthentic product: there are so many ways copyright can be involved in a video game in the current digital ecosystem, have different terms for the different infringements is nice.

K/DA and Holographic Performance: Computer Code or Dance Choreography? 

Copyright applies when a creative expression is fixed in a tangible medium. This has presented questions and problems for certain kinds of creative works, of which my two favorite examples are fireworks and dance. Like a beautiful explosion of color in the night sky, the dancer does not leave a fixed expression in a tangible medium after leaving the dance floor. However, it is possible to fix the dancer’s choreography in a tangible medium—and maybe there is a new way to do that.

“So Keep Your Eyes On Me Now/ The Show Is About To Start”

At the 2018 League of Legends World Finals, some 90 million spectators (including some 23,000 live at Munhak Stadium) were treated to a musical performance that featured life-sized augmented reality projections of fictional pop-star characters dancing alongside physically present, corporeal, non-fictional dancers. This is not the first time a hologram has performed at a live concert: Tupac graced Cochella with his digital and photonic presence in 2012, despite the inconvenience of his death in 1996.

My idle, speculative quandary in the case of K/DA Pop/Stars is whether a dance routine performed by holograms can be registered as choreography for the copyright office. For a lot of reasons, it really doesn’t matter in this case—Riot isn’t going to litigate around this issue (though people may change their tune about copyright), and to the extent that they do need a copyright registration for this, it’s unlikely to matter whether it’s classified as choreography or as a computer program.

Still, it’s an interesting issue to explore because the finer details of technology can sometimes inform how a judge will rule (as in the case of embedded Tweets).  Can someone register copyright for a computer program that directs the lights and projection machines to present the images of the hologram in such a sequence and manner as to create the illusion of a dancing individual? It would be interesting to see how the Copyright Office or courts would parse a computer program for a dancing hologram.

 

Drawing Distinctions

Law can take controversial twists around new technology because an adjudicator struggles with the technology involved. Typically, this means someone has either embraced the extreme of refusing to recognize a substantive difference in a new technology, or someone has gone to the other extreme of imagining a difference with a new technology that isn’t supported by reason.

When faced with new technology, the easiest move is to look back at other technology and see if an analogy can be made. The obvious subject for comparison is traditional animation. In broad concepts, there are plenty of similarities between creating a hologram dancer and drawing and animating a dancer. The tools are clearly different- so how similar is a keyboard to a pencil? The uses, purpose, function, and the end results of the tools are similar enough—but there are also very clear distinctions. Copyright law has made an effort to be medium-neutral: it doesn’t matter if a novel is written on paper, caved into rock, or saved in a PDF.

It might be that augmented reality and holograms are simply a new flavor of animation, and, from a copyright perspective, there’s simply nothing new to see here. However, the combinations of new technologies are more likely to produce something substantively new. Anthropologist Thomas de Zengotita is fond of the point that a hurricane is just a lot of breeze—yet everyone treats the two as substantively different. I take it that he means that a sufficient accumulation of non-substantive changes, at some point, creates a substantively new category. This is the core distinction that adjudicators have to make: is a new technology substantively different, or just a different medium for something that is already established?

 

“So Can You Handle What We’re All About?”

Is a computer program of choreography is substantially different from a recording of a dance? The choreography is the script for the dance. A recording of a dance is how a particular dancer happened to perform the dance. Copyright distinguishes between the sheet music and a recording of the performance. In the case of a computer program that simultaneously generates a dancer and dictates the movements of that dancer, can the performance be separated from the script? The choreography only exists as it is embodied in the performance itself.

This raises a further question as to whether effects of the performance are also part of the choreography: for example, the moment in which Kai’Sa fires a firework-like lighting effect during the performance. If it is part of the code, and the code is the choreography, then this effect is part of the choreography—although it seems like something that should be a production direction, not part of the dance itself.

As unlikely as it sounds, some adjudicators might look to the question of whether the computer code recognizes a difference between pixels and limbs. That is, the question might turn on whether humans can recognize the code as dance instructions. An adjudicator might reason that the computer cannot dance, and so the execution of the code is not the performance of a dance– thus, someone who can dance must be able to interpret the instructions so as to perform the dance.

If we want to make this more interesting, we can imagine this technology combined with an AI that creates new dances. Here, the AI dancer is also the author (unless the author is the rights holder of the program). We can further ramp up the question by putting this AI choreography in a robotic humanoid body and turning it loose on the dance floor, where it transcribes its own choreography as it creates it.

 

Fortnite Is Dead, And So Are The Copyright Claims (Hyperbole or Prognostication?)

If Riot (I assume Riot holds the rights for the K/DA performance) can register the work as a dance, they will probably need to register the entire dance. The Copyright Office has rejected the attempts to register the brief dances (micro-choreography?) of several plaintiffs who are bringing suit against Epic Games. As I already discussed, these plaintiffs may still have claims under some use of personal likeness laws, but it looks like their copyright claims are unlikely to get off the ground after the Copyright Office denied registration.

 

The Bigger Picture: “Wish ya luck”

Ultimately, this is exciting because this is what it looks like when technology, culture, and law meet. This is exactly what it is: Epic Games monetizes dance moves that are popular and known and publicized, and before the lawsuits can even be dismissed, Fortnite has already lost its player base to Anthem and Apex (odd twists of identity theft included for added 21st century flavor). These fringe, unimportant, idle explorations form the basis for decisions that affect the bottom line of corporations and the constraints on artistic productions. For the adjudicators of copyright law, this only gets harder: As computers become increasingly sophisticated and increasingly common tools for the production of works of art, the Copyright Office will face increasingly difficult questions.