Law of the Game on Joystiq: Much Ado About Game Night
by Mark Methenitis 
{ Jun 4th 2008 at 8:00PM }
Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:
Ah, the library (the place with books, not the bar). The once quiet and relaxing readers' domain has moved into the digital age, now containing computers and video games. In fact, a number of non-profits, like libraries, churches, and schools, have all found video game based events worthwhile to attract players of all ages to their establishments, or to add more entertainment to an existing event. GamePolitics actually raised an interesting question I had also received from a reader related to library and church game nights, specifically: What are the potential ramifications of holding these events from a copyright and EULA perspective?
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:
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.
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.
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.
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.
Reader Comments (Page 1 of 1)
Me @ Jun 4th 2008 8:14PM
Churches aren't public property, where libraries are. If a church invites people for a game night, I don't see how it's any different than inviting friends over to your house to play video games.
ComradeTrotskii @ Jun 4th 2008 8:47PM
I'm not sure of all the legal 'stuff' here but whether it is public property or not would surely be largely irrelevant.
A sports stadium isn't public property, that doesn't mean it would be OK to invite 30,000 people round for a quick blast on COD 4.
Jansperus @ Jun 4th 2008 9:15PM
"A sports stadium isn't public property, that doesn't mean it would be OK to invite 30,000 people round for a quick blast on COD 4."
Even if those 30,000 people are all family?
But yeah, churches are organizations. Non-profit yes, but organizations still. And maybe not even non-profit. They do garner mucho dineros. And souls! SOULS!
Cesaria (MKW:2621-2994-1376) @ Jun 4th 2008 9:07PM
Your last name, Mark, is like a disease for meth heads. Just thought I'd point that out.
eNrique @ Jun 5th 2008 3:03AM
i think it's good to have this kinda events, it helps advertise the games as well as the consoles.
i don't see the problem here.
btw
who even reads the f-ing eula???
f-
Terry @ Jun 5th 2008 11:24AM
Lawyers.
And Law Students.
And Obsessive-Compulsives.
Nonhippyhippy @ Jun 5th 2008 12:07PM
I know a guy who read the entire EULA for Windows XP before pressing the accept button to have it installed on his computer...
saregos @ Jun 5th 2008 9:28PM
In reading through the wikipedia article you linked (ProCD vs. Zeidenberg), one of the final comments in the article struck me as interesting. It states that the court noted that "the ability to and "the opportunity to return goods can be important" under the UCC." However, it seems to me that with the recent decision of nearly every retail outlet that sells video games (especially PC games) to not accept returns of these items after they've been opened, the ability and opportunity to return goods of this nature no longer exists, at least in it's original form. Effectively, this choice to not allow the return of video games is curtailing the right of the consumer to accept or deny the EULA by imposing what seems to be a financial penalty for refusal. I was wondering what your thoughts were on this matter? Relevant to this is the question: If I purchase a game and choose not to accept the EULA for whatever reason, is it still within my rights to get a refund, and if so who would be responsible for granting me that refund?
Carlos Ovalle @ Jun 13th 2008 8:20PM
I had a few responses to this in the Gamepolitics column. One of the things I will mention is that at least one of my colleagues argues that playing a video game might not be considered a dramatic performance, which would allow libraries to use 110(4). This is, of course, outside the EULA issue.