Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

A few weeks ago, a copyright issue was posed to me for discussion via e-mail, highlighting some key misunderstandings of copyright and its purpose as it applies to video games. The e-mail pointed out that a copyright for a game doesn't really protect the game, and to that end, the writer of the e-mail didn't completely see the point to copyrighting game software. In fact, he pointed out that casino games are often patented. This observation leaves me with four issues to discuss: (1) what is protected when you copyright a game; (2) what isn't protected when you copyright a game; (3) why game patents are rarely used in a video game context; and (4) why patents aren't necessarily a good idea for the industry or gamers.

Even the basic ground rules that govern copyright and intellectual property concepts can be confusing. The lines that various legal protections have drawn are not necessarily the most logical, especially with respect to newer technology.

So, if I code a game and copyright the game, what is being protected? There are actually a lot of elements that are being protected. First and foremost, the code itself is protected. This is often the stumbling block that trips a lot of people up. The code is protected as a whole, and using a part of it can be infringement. Think of the complete body of code like a book. A book is protected by copyright, but the individual words are not. If someone happens to write the same sentence somewhere, it's not necessarily copyright infringement, but if two chapters appear in another work, it's very likely it is infringement. So, if someone uses the same expression or a few lines of code in another piece of software, that's not likely infringement, but if the entire physics engine appears line for line in another game, it's very likely infringement.

Other elements are protected as well. The dialog is protected just like dialog in a movie would be protected. The actual audio recordings and video recordings are protected, as are any recordings someone would make of the gameplay. The storyline is protected to the extent that it is expressed through the game, so that if someone tried to tell the same story with the character names changed, it would likely be infringement. These are all elements of what copyright protects: an expression.

What copyright does not protect is an idea. This means that your plot concept itself is not protected on a broad level. To give you an example, what does this plot idea describe: A band of rebels sets out to stop an evil empire before the empire destroys everything they hold dear. Along the way, they meet an eccentric cast of characters who help them on their journey? Well, that could be Final Fantasy VI. It could be Star Wars. It could be an awful lot of stories. And that's how the courts analyze infringement when it comes to plot. There are actually two tests, the "subtractive method" and the "totality method," but ultimately, both are trying to determine just how similar the works are to each other. It comes down to either a similarity between a substantial number of specific elements, or a similarity between the complete works with respect to the fine details. This is somewhat comparable to what qualifies as infringement of source code.

Additionally, copyright doesn't protect game mechanics, just the actual engine that produces those mechanics. For example, if you wrote an engine for a new FPS game, you wouldn't be infringing on a copyright by virtue of creating a first person shooter. On the other hand, if you stole all of the code from the Valve's Source engine and made a game with it, you would be infringing on the copyright. This is the reason behind the issue of similarity. There may one be only one way to code a particular element, so if every developer is using it, then no one is infringing. On the flip side, if there is something that can be coded in a dozen ways with equal ease and practicality, then a particular version may be protected by copyright.

So, what if you want to protect a game idea? Well, for casino games, game patents do exist. In fact, game patents extend past the casino realm to groups like Wizards of the Coast. And there are actually a few in the video game world (Crazy Taxi and Dynasty Warriors come to mind). A patent can protect a specific game design. For example, the figure on the right is from the Crazy Taxi patent, which demonstrates some of the specific elements to the patent. It's not just a driving game. It's a driving game with the arrow that constantly points to the end destination, which is a three dimensional space. The patent goes into more detail than that, but the point is the game mechanic has to be fairly specific. With a card game, the workings similarly have to be specific. Of course, there is still the requirement that the idea be novel to be patentable, and that's part of why it's rare to run across a video game patent.

Of course, I suspect that the other part of the reason is that a video game patent would likely be frowned upon by many people in the industry and by much of the gaming community. John Carmack has noted his distaste for software patents in general, and I only imagine many gamers would have been quite vocally frustrated if the Crazy Taxi patent had deprived them of Simpsons Road Rage. Obviously, patents don't prevent licensees from using patented ideas, nor does it stop infringement from occurring, but it is a barrier to production as an expanded cost factor. More importantly, it may deter developers from making a game that has some upgrades to a certain idea that may constitute infringement.

Games aren't like pharmaceuticals, where in the absence of a patent system a company would have no benefit to their research. If a game is good, it will sell, and because of the copyright mechanics, that game is protected. The game is more than the patentable mechanic, unlike many casino games (especially card games). It is a whole experience. With the core gaming community, the gamers know who is ripping off whose mechanic, and the core gamers aren't likely to play a ripoff unless it's of quality. While I wouldn't go as far as Carmack to say that the idea of a software patent is in and of itself repugnant, I do think their overuse in a video game context would likely stifle growth and innovation in the industry.

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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.

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