Last week, ECA boss Hal Halpin posted a column discussing the need for the game industry to re-evaluate the big block of text you click to 'Agree' to without reading; aka the End User License Agreement (EULA). While I could write a column about the pitfalls of some actual EULAs, as PC Mag did in January, I will instead address the broader issue that no one has yet pointed out. In general, copyright law and its application to new media has lagged well behind the curve of practicality. I want to start out by saying that I fully believe the idea of copyright is a positive one, as those who create works should be able to protect their rights with respect to those works. However, technology has now pushed the envelope to the point that it is generally impractical, if not nearly impossible to impose the centuries old concept of 'copyright' that originated with the printing press. Now, that's not to say the powers that be haven't tried to adapt copyright to new media. The Digital Millenium Copyright Act (DMCA) was the last train wreck of an attempt to do just that. The problem with a lot of legislation is that the law is primarily drafted by legislators who, to be quite honest, know next to nothing about what they're trying to legislate, while being prodded by highly paid lobbyists who, generally, represent the side with the most money. Just to be clear, I'm pro-business, but the typical effect of one-sided drafting is that the other side is left in an unpleasant position. Given that I'm also a consumer, I see the need for balance on both sides of this issue, and unfortunately, there isn't much balance at this point in the equation. The addition of the EULA only continues to tip the scales away from the consumer. In general, this isn't a problem for most users, but it certainly has the potential to be one!
For a lot of people, the concept of copyright in a software context is either confusing or just plain strange, but bear with me ... When you buy a piece of software, you're not actually buying the software, per se. You're buying a license to use the software in a way prescribed by the software's license, the EULA. Basically, the EULA grants the licensee (you) permission to use the software in a specified way such that the licensor (the software manufacturer) will not sue you for what would otherwise be a violation of its copyright.
Let's take a broad based example, Microsoft Windows, to analyze this concept. Let's say you go to your local computer store and purchase a copy of Windows Vista Ultimate. The license attached to that package allows you to install it on one machine. Therefore, if you install it on a second machine, you've violated the license and Microsoft could theoretically sue for breach of their copyright to Windows Vista Ultimate. On the other hand, let's say you want to buy Mac OSX Leopard. You could buy the single user edition or the family pack, which comes with 5 licenses. Let's say you have 3 computers. You would be violating the license you bought on the single user edition to install it on all 3 computers, but you would be well within your rights to install the family pack on those 3 machines. Pretty straightforward, right?
Where it becomes more complex is in an area where music has been problematic for quite some time. Let's say you own both a laptop and a desktop computer, and you buy a copy of the '8th best game of 2007' ... (Peggle, duh). Generally, the EULA will let you install the game on one machine. But you have two. Shouldn't you be able to install it on both, so you can play it at home (on your desktop) and while you're traveling? To take the opposite viewpoint, there's nothing to stop you from installing it twice and letting a friend play it while you're also playing it. The music industry has faced the same issue with CDs. If I buy the CD and want to put it on my MP3 player, I shouldn't have to buy it again. But on the other side, what's to stop me from putting it on my and my friend's MP3 player? Or putting it on my computer and giving the CD to someone else?
These issues almost have to be resolved on a media-by-media basis. With regard to games, Hal has the right first step in mind: there needs to be some sort of large scale discussion about the issue amongst the industry people. Consoles, by and large, don't have these issues, and where they do appear, they are not as significant as those on the PC side. So generally, this discussion should be among PC developers, as well as those who develop on the PC along with other platforms. Discussion does not necessarily mean standardization. In fact, I would think simplification would be a more optimal solution.
What do I mean by simplification? Well, think of it this way: That box you typically 'Agree' to would be a series of bullet points covering the software license's position on the general key issues in a short, readable form. The user would, of course, be able to read the full EULA if he or she so chose, but by and large, I imagine most people would just read the bullet points. This is, of course, is just one idea. But it would accomplish two things: convey better information to the consumer and protect the developer from problems with click-wrap agreements. In fact, it is feasible that the laws, such as the UCC, could be revised to provide greater protection for developers who followed a more consumer-friendly EULA format.
This is an opportunity for the game industry to be proactive and take the lead in dealing with the EULA. Clearly, the license cannot go away altogether, but it can certainly receive a facelift that would be beneficial to both the producer and the consumer. Ultimately, the goal of most laws dealing with consumers is to strike that balance between the rights of the parties on both sides of the line, and in this case, I think there is certainly room for improvement.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.
(Page 1) Reader Comments
You believe? Where is the scientific rigor in that? There is empirical evidence that copyrights are a bad thing. In fact, suggesting that without copyrights producers won't be able to protect their works is to be dangerously ignorant of history (and not in the way you outline in your article).
"The addition of the EULA only continues to tip the scales away from the consumer."
This assumes (like anti-trust law combined with its bastardized version of single and perfect price discrimination monopoly models) that consumers are already entitled to what the producer produces.
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but companies like Disney have bastardized it and copyright now lasts way too long.
It needs to expire in a more timely manner: let the creator profit from it, then let the culture enrich it.
Again, you are assuming this. Where is the evidence that copyright actually encourages investment? Or in other words, where is there evidence that without copyright, investments are not made?
In fact, even up until 1850, the US did not recognize international copyrights. This notably applied to British authors and their works in the US. In the US, they had no copyright protection, but some evidence suggests that they made MORE money even without copyright protection.
im sure in 1850 there werent nearly as many ways to exploit copyrights as exist today. so im not sure how valid your point is when the world is so entirely different today.
on a related note,
ironically im currently doing a thesis on the issue of copyright duration. And frankly i think its rather moot due to the perpetuity of trademarking. Yes mickey mouse may one day enter the public domain but what's to stop disney from lobbying to say that the appearance, likeness, sound, and overall persona of mickey mouse is not a representation of disney's trade? making public use of mickey still ambiguous. im pretty sure they've trademarked the mickey logo by now.
my professor noted that the US is just trying to stay afloat with the rest of the world, which is currently also at 70 years plus life...so if the UK budges on that number..we'll likely follow suit as to not deprive our own US copyrights shorter terms for exploitation in other countries.
but i believe you can solve anything with money...time warner and Disney proved this with the sonny bono act, im not too sure something similar wont happen again.
the public domain will just continue to shrink.
the idea of abandoning copyright is something ive heard been brought up on a few occasions....what do you recommed? a contract by contract basis? individual licenses for every use? I dont see how practical that is, also the LoC provides a nice centralized locale to find/catalogue works. if this were a totally independent issue, keeping accurate records of all new (formerly known) copyrights may be impossible.
There is really only one answer to the solution IMO - a Steam-style solution, where media is bought and activated on a single account so that it can be used across computers but not across people. Such a system could be extended to "lend" licenses to other people, i.e. let someone on your Steam friends list to download CSS (and not allow yourself to play it at the same time), but still allow you to take back the license when you wish.
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Of course, if you actually buy a "music" CD-R, then it is taxed and some amount of royalty money goes to some collection body (just as there is a tax on audio cassettes and taxes and other restrictions which ultimately killed DAT) - this goes back to the Audio Home Recording Act, which clarified that taping off the radio, making mix tapes, etc., is legal - but most people buy cheaper "data" CDs and just record music on them. (Check the wikipedia article "private copying levy.")
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Plus, it gives us lawyers something to write.
Or so they say.
So if you look me up on steam I have 2 usernames, one uses caps, the other doesn't.
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An interesting way to look at this is that copyright lends itself well to tangible goods because of the products' inherent scarcity (there's a finite number of copies of Dianetics, for instance -- a number inextricably tied to paper production, soy ink production, etc.). But how do you charge for a product that isn't inherently scarce? Where's the supply-constrained value? Where's the perpetual cost? How do you build a market around a product that can be endlessly replicated perfectly and completely without additional cost, or burden on resource? One way is to legislate an arbitrary value to something that is otherwise ubiquitous and free. So we find ourselves in a silly, mind-numbing circumstance where X Megabytes of data costs Y amounts of tangible currency simply because a cabal of lobbyists and companies say so.
And I should mention that I do believe in copyright when it's reasonably applicable.
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how can you "punish" someone, or a firm for exploiting thier work due to technological progressions?
we've reached the point in which intagible goods can be mass produced and distributed instantly and infinitely more or less.
yes the media may be intangible, such as music or video games , or computer code, but they are created by very tangible machines and people. so resources are still being utilized in thier creation and for thier consumption. (until we have direct neural links with our media anyway ha)
So its fairer to punish the customer? Place imaginary restrictions on the customer as long as it ensures that companies increase profits?
I mentioned perpetual cost earlier as in the cost attributed to producing and maintaining supplies for a certain good. And there comes a point when the exorbitant price set on an intangible good becomes little more than a fleecing of consumers.
When games were printed onto expensive ROM chips in expensive plastic housing, the cost of production was adequately reflected in the price and as such the price was reasonable. But now prices have increased (not considering inflation) while productions costs have decreased. If anything, the shift to intangible goods should be accompanied by massive drops in in price for the consumer. MP3's should cost pennies, digital movie rentals should cost a fraction of what it costs to go to Blockbuster, and the same goes for ebooks. As it stands now, none of these items are reasonably priced and the companies involved are twisting copyright law and public opinion to justify exorbitant prices for intangible, easily reproduced goods.
This is more infuriating when we remember that the traditional costs and risks inherent to production don't apply to digital distribution. There is no risk of printing plants being idle, no plant workers to pay for or insure, no floor space to lease in brick and mortar establishments, no tam of marketers to go out and hustle sales from large retailers. The overhead is no negligible. There is no risk of overproduction. There's essentially the benefit of having one digital product, copying over and over at no additional cost, and then selling it for about the same price you would for its tangible counterpart.
Face it, like I said, I appreciate copyright law, but like any law it should have reasonable limits. When copyright law is used as a weapon against consumers, there's something wrong. In it's basic form, it should make sense; rights holders shouldn't have to sue consumers into oblivion for it to make sense.
i see exactly where you're coming from, but i stand on both sides of the fence cuz i happen to be a beneficiary of copyright law and publishing, without it i dont eat or pay bills. So im definitely more in favor of ensuring people like myself can benefit from the work we've created and finance further works, espeically considering we usually get the short end of the stick from *some* consumers and corporations.
i think you're making a black/white distinction between the people/consumers and the big band companies and are forgetting people like myself, the authors, writers, musicians etc.
as for costs going down for corporations while prices stay constant, i dont think that's entirely true. Games in particular are reaching excesses of 20-30 million from conception to store shelves, now there are program teams and creative teams of over 100 people. so while hardware costs have decreased, labor has increased. there's no longer 1 guy coding a game. Movies reach ridiculous production costs these days, the only industry in which i might agree is possibly music, but we all can see how well that industry is doing.
my point is, with technnology, nothing gets cheaper, the costs just get absorbed into some other facet of the production process for alot of industries.
as for the royalty on CD-burners etc. that fact is its impossible to keep an eye on everyone, its ludicrous to even think on that level , and its also ludicrous to think everyone is stealing, but thier has to be middle ground. placing a statutory rate on every recordable/transferable device is a middle ground. would you rather have sony BMG or UMG jsut go around and sue everyone for copyright infringement? or would you be happy if they just let it be and let every steal? the money isnt all jus tgoing into some fatcats pockets, its going into *my* pocket as well. theres alot of grey areas and alot of people involved here that have to be taken into account.
i also agree that copyright should be used to protect and encourage innovation, i believe the copyright's primary beneficiary should be the public, and it should encourace the public to build upon the foundation of great minds/ideas before them.
as for commodities, i shouldve worded it better, i was referring to works that are copyrightable, not the copyright itself, so music/movies/literature etc are not themselves commodities such as grains or oil etc
well thankfully thats why the fair use doctrine was included in the federal copyright law. in my case, using this picture isnt hindering any economic opportunity for the holder or EMI records, whomever. as for an person buying a CD without any intent to buy, how is anyone suppose to quantify of qualify that? we cant mind-read, so as the guy above said, if you steal from a grocery store its stealing even if you didnt intend to buy the product in the first place. we cant distinguish malicious stealing from "unintentional" stealing.
and to the other poster, copyright infringement basically is stealing, you're using someone elses work without compensating them, thats pretty much stealing.
i mean,right now THERE IS,yet i havent paid for my OS and all my APPS,many of my games and ANY MUSIC or MOVIE for years.....
Other people,dont know about the law but they will still buy stuff from the box and pay,even when theres a clear free option,CDs are still selling so there gota be someone that buys em.
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You aren't getting that software for free - you're stealing it.
Don't be a moron: "stealing" implies the victim loses possession of something. What Gurei is guilty of is copyright infringement, not theft. What you're doing is akin to trying to tell a person guilty of assault that they're "killing" or "raping". Ie, you're spreading total bullshit.
CD's arent really selling though, they've been in drastic decline for the past 4-5 years. the Music industry as we know it wont exist in 5 years...and that's being really conservative.
back on topic, i believe computers, disk drive makers etc should be forced to pay a royalty for every machine they produce, similar to the royalty paid by DVD/DC recorders/pressers. it only makes sense, i dont see how an internal PC cd-burner, or the internet in general is any less different from a CD recorder. both are aveneues to rip,copy and distribute data off an original disc. so just add a royalty to the router manufactures, ipods etc if need be. just to create a pull of funds that can be dispursed to the copyrights owners/authors.
also the policy regarding soundexchange and digital PR's is just criminally insane. it's destroying thousands of internet and satellite stations, and shutting out alot of people from a potentially huge market. i dont know how the labels lobbied that hard to get congress to sign off on that.horrible.
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And your last paragraph proves the heart of my point. The whole 'soundexchange' debacle is an attempt by big radio to push out fledgling competitors who have no adequate recourse or representation. It's a twisting of copyright law to use against the consumer (in this case, consumer choice). Copyright has become the teeth used by big fish to chomp away at smaller fish; a mode of market Darwinism.
Copyright is quickly losing credibility because greedy interests have made a mockery of it. This is bad (and perhaps intended) because I feel that copyright should really be meant to protect innovation -- new players in the market. If the public loses all regard for copyright, the big companies will further rely on lawsuits and other means of getting their fill. However, new artists, producers, developers, etc. will be screwed because they themselves won't have the adequate means to enforce the new interpretations of copyright law.
As an example, if a brand new startup just now made Guitar Hero and didn't have the legal backing of Viacom and EA, Gibson would have sued them into the nonexistence and reaped immense wealth at their demise. That's the abomination that copyright has become and it's a shame.
For instance, say you're Jamie Hewlett, your copyright ensures that when large media labels sell millions of dollars worth of Tank Girl movies, or Gorillaz lunchboxes, you'll get a cut. But why should copyright be stretched to account for the hypothetical where consumer Y, who wasn't gonna buy an issue of Tank Girl comic, decides to download it instead? You can't necessarily chalk that up to being a lost sale or depriving money from Hewlett, but if you do decide to seek punitive damages, is it ethical to charge him the same way you'd charge a bootlegger, despite the fact that he saw no monetary gain from his ill-gotten digital copy of a comic book? Or better yet, should you, Embassy, pay Hewlett a royalty for currently using Russell as your avatar? I'm assuming that isn't your intellectual property so what right do you have to use it, and what protection does the law give you should Hewlett's lawyers decide to grill you? See, how muddled things get when you sic the fangs of copyright onto consumers. IMO, it should be for industry, against industry.
And the argument about consumers absorbing production costs to involve and include research, development, retainers, executive visits to massage parlors.... Well, I'd imagine that line of reasoning could be employed to charge $300 a copy for each game. Then games that sold worse would have to charge even more to recoup losses just like how pharmaceutical companies justify inflating prices on the crucial medicines that sick people can't afford so that they can spend more to conduct research on new male enhancement drugs. But that quickly becomes absurd, eh? Since when is it a given that consumers be expected to subsidize a company's risk?
Absent market collusion, customers pay a price that reflects a product's value, scarcity, and consumer demand. When I buy a paper in the morning, it isn't expected that the price reflects the cost of the writers' degrees in journalism, their cups of coffee, the editors' new boxers, or the sports reporter's new bottle of Rogaine. The argument that we're expected to pay for any number of nebulous variables even tenuously tied to development is specious. Plus, I don't think game developer's spend hundreds of millions of dollars on game development as a matter of necessity, but that's a whole other debate.
Consumers don't have the right to access the creative works of others without compensation. If you don't want to pay the asking price, you have no right to use it. Simple concept.
The friends argument frequently arises in these situations. What exactly is the cut-off? There are people out there trying to justify running torrent rings that they actually have thousands of "friends". What is the cutoff between your idea of reasonable sharing and wholesale theft? 10? 100? 100,000? How are you going to enforce this? Someone who shared with 11 that is fined and jailed while 10 didn't will generate a public outcry. It was only one over the limit, so why prosecute? That one just gets increased over time, making the limit so astronomical that it would exceed the grand total of actual sales. It goes the other way, too. If you got it off someone at the 10 limit but that one person gave away another copy, you are now liable as well. Outcry again.
The best laws are the simplest. Copyright is too complicated, which is why we have this problem. When you start arguing to erect exceptions because you don't want your current behavior criminalized is when we start castrating and deastroying the purpose of the copyright. If you download a game you didn't pay for, you should get fined, no questions asked. We don't live in a collective society. You don't work for free, so you can't expect others to do so.
If a game costs $60, then every instance of downloading it should be fined $70. The copyright holder gets the actual royalty amount and the remainder goes into public coffers. The same should hold true for distributors.
You have no guarantee to entertainment. If you want to use it, pay for it. If you think it's too much, then either sick it up or don't use the product. Video games, music, movies, books or any other copyrighted material isn't a base necessity so you have no right to it.
I won't deny that illegal copying has probably played *some* role in the decline of CD sales, but there are plenty of other reasons contributing to the decline. For instance:
A. The quality of the music they've been pushing have been in serious decline. Yea, there's still some good stuff, but proportionally, there's been far more total shit over the last ten years than there has been in a long time.
B. The success of the iTunes Music Store (And no, I'm not an Apple fan. Just stating fact.)
@LaughingTarget:
I can't believe there are so many people out there that are so incredibly stupid they can't even figure out that there's a difference between theft and copyright infringement.
Someone tell me why, exactly, we need themfore PC software?
Essentially it should be: You bought this software, its yours, do as you want with it.
Everything else is already covered in other laws.
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"It is the same as trying to say that someone shoplifting wouldn't have bought it anyway, so it really isn't stealing."
No, it's not the same, not by a long shot. I feel like my intelligence is being artlessly ridiculed whenever someone uses this analogy. I've already detailed the very real differences between digital goods and tangible goods and I refuse to be coaxed into thinking that they are one and both the same. The implications, risks, and considerations are completely different.
By your argument's merit, you don't have the right to access your current icon without first paying Alan Moore et al. Similarly, all members of a community shouldn't be allowed to access their local library without first paying a fee. Again, the absurdity of trying to enforce these things against consumers is so obvious that it literally hurts me to see how someone could think otherwise, especially in an age dominated by the free transfer of ideas, thoughts, etc.
Why are you and your ilk so determined to give copyright law unprecedented scope when doing so serves no public good? And we aren't talking about running into TJ Maxx and stealing a pair of socks, so don't try to obfuscate the issue with an example like that. We're talking about companies wielding their billion dollar might against kids copying bits of data. The current interpretations of copyright law aren't very compelling if these means are needed to ensure public compliance.
And again, copyright's original intent was not to bend consumers over their respective barrels, but to prevent competing publishers from making money off of your intellectual property; in essence, to stop anyone other than you from making money on your creations. Like today's news story of Microsoft lauding the inclusion of a Master Chief mod in the current UT game. As far as they're concerned, it's fair game because there's no monetary gain involved, and therefore not an infringement of copyright. Again, copyright law becomes painfully inadequate when it aims to do anything beyond the scope of its original intent.
And your last paragraph was vapid. Seriously, "If you want to use it, pay for it"?!?!? I'd like to see that on a sign in the local library, outdoor park, beach, museum, public restroom, or my burnt copy of Ubuntu. Slogans and trite sentiments don't address this issue. Spewing off marching orders and mindless sound-bites makes for a hostile debate. Do you even realize the scope and extent of what your words suggest? What crazy world do you live in where EVERYTHING you get is paid for in a non-negotiable transaction?
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