It's actually a very good question, albeit one with a fairly nebulous answer. As was pointed out by the GamePolitics piece, there are licensing services that will acquire the proper license for the public performance of a movie. Similarly, groups like ASCAP have well established licensing procedures for music. The reasoning is that public display and performance are within the bundle of rights a copyright holder has. Therefore, in order to publicly display something, you need to have the copyright holder's permission in the form of a license. Of course, if it were this simple, I wouldn't be writing a column about it.
I'm sure few will be surprised to find there is no such established licensing regime for the video game industry. And really, this shouldn't be surprising. Video games really haven't been much of a spectator sport in the US, and other than arcades, they've largely been confined to personal use. So where does that leave the library? Or on a more profitable note, where does that leave various LAN facilities that offer by-the-hour or by-the-day gaming for a fee?
That really leaves a paltry few options:
- Keep going status quo and hope no one notices, but fear the potential legal ramifications if someone does.
- Contact the rights holder and try to get a license and modified EULA.
You may have noticed that I also mentioned the EULA all of a sudden. Simply put: Most EULAs also restrict use to personal use. Of course, you would have to review the individual game's EULA to see what it says specifically. It's interesting to note that if the EULA explicitly grants the right of public use, then there is no concern over copyright issues because the EULA is the license. However, it's when the EULA is silent, unclear, or specifically forbids non-personal use that copyright issues apply as well as potential contractual ones.
To speak to another point that's been brought up often, EULAs have been both held enforceable and unenforceable in the US. I would generally assume that they are, in fact, enforceable with respect to reasonable terms. After all, most contracts have a severability clause; that is, a clause which states that any individual provision can be severed from the contract without invalidating the entire agreement. So, if an EULA has a number of unreasonable terms, those terms can be cut out of the contract, leaving the rest in tact. Hedging bets on invalidating the entire EULA is, in my opinion, an unwise course of action that is unlikely to be successful.
It's also important to note that being a non-profit organization doesn't provide a 'Get Out of Jail Free' card with respect to licensing. A public performance is a public performance, whether it's put on for a profit or otherwise. Being a non-profit may make the copyright holder more likely to grant permission for little or no cost, but that propensity doesn't chance the need for permission.
Assuming you decide on option 2, it doesn't need to necessarily be anything fancy. A simple, written statement saying it's alright to do whatever it is you're doing would suffice. For example, if you wanted to hold a Smash Bros. Brawl tournament at the library, a letter from Nintendo saying, "We don't object to you holding a Smash Bros. Brawl tournament at Anytown Library" would be fine, as would an even more generic "We don't object to the use of our software for a tournament at your library."
It's entirely possible that this situation may remedy itself as time passes. Either companies may choose to address the issues in the EULA, or they may opt to set up a public use clearing house of sorts like the movie industry has. Whatever the case may end up being, for now this is a yet another legal gray area in the video game realm.
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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