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

Today we're going to discuss enforcement of intellectual property, which is a much deeper topic than simply "what is it going to cost me?" There are enforcement considerations on both sides of the issue, and it's often a rather sticky situation for the rights holder in a copyright scenario. Interestingly enough, there are some pretty important economic and public relations considerations with regard to enforcement as well as the legal ones.

There's a burden trademark owners face that isn't applied to copyright holders, specifically that those who don't protect trademarks lose them. Copyrights, on the other hand, aren't lost in this way. Theoretically, a copyright can only be lost once the time period for the copyright has elapsed, though recovery may soon be limited on so-called "orphan works" whose authors are difficult to locate. Alternatively, a copyright holder can formally release a work into the public domain, which is the equivalent of "abandonment" of a copyright.

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.

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

It's only fitting that during the same week Red vs. Blue: Reconstruction premiers, Law of the Game on Joystiq would finally get to the topic of machinima. The game-based machinima issue boils down to one of copyrights and licensing. To be more specific, there are issues of copyright involved in all machinima productions, which give a need for licensing; which are addressed by Microsoft and Blizzard by means of a "machinima policy."

For those of you who have been living in a cave -- on Mars! -- since 2003 (the year Red vs. Blue stormed the internet), machinima is the use of a pre-rendered engine to make a film. It's often been compared to digital puppetry. It's become a popular art form, in part because it minimizes production costs and requirements, and in part because it often utilizes games that people enjoy. Of course, because the art often makes use of someone else's game engine or game assets, there are a lot of copyright issues involved. Thankfully, both Microsoft and Blizzard have made many of these concerns much simpler by publishing machinima policies.

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

Based on the comments to the last few copyright-oriented columns, it seems like everyone wants to talk about fair use. In fact, fair use is one of the most misunderstood aspects of intellectual property law, even though it's popular to play the "fair use" card in response to alleged infringement. Much of the confusion stems from the fact that there are different fair uses of copyrights and trademarks; still, other confusion stems from the fact that many of the tests for what qualifies as fair use are not terribly clear -- but I'll be clearing much of this up for you today ... hopefully.

For the most part, trademark fair use is far simpler to understand than copyright fair use, so trademarks will be our first stop. Simply put, it is fair to use a trademark nominatively or for identification. That means if you re-sell a BMW, you are allowed to refer to it as a BMW. If you're writing a book or game dialog, you are allowed to refer to brand names. You are also allowed to refer to brand names in comparative advertising too; for example: "Our console has more games than the PlayStation 3!" or "Our hardware is more powerful than the Nintendo Wii!" or "Our system is more fun than the Xbox360!" Now that I've angered all the fanboys, that's pretty much the entire universe of trademark fair use. Copyright fair use, on the other hand, is far more complicated.

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

Today's column has nothing to do with math. (Sorry to disappoint some of you!) For most, I'm sure, it's a relief -- myself included. What may not be such a relief, though, is that the topic of the day is once again copyright, which is often confusing. I've received quite a bit of e-mail over the past few months regarding game footage on YouTube or streaming footage, and how exactly that relates to copyright. What this article won't address specifically is machinima, but rest assured that Law of the Game on Joystiq will visit the territory of Red vs Blue at some point in the future.

When last we discussed copyright, we talked about what was protected under the law and what was not. But what the previous article didn't spell out were the rights granted to the copyright owner. In this way, "copyright" is a bit of a misnomer, as the person who holds a "copyright" actually has a number of rights with respect to the work. In fact, there are 5 generally identified rights in the copyright:

1. The Right to Reproduce the Work
2. The Right to Distribute the Work
3. The Right to Create Derivative Works
4. The Right to Show Display the Work Publicly
5. The Right of Public Performance

Rights 4 and 5 vary with the particular type of work. The issue we're tackling today falls somewhere in the rights listed, although it's difficult to precisely label.

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.

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

From cheating to piracy, game security has become a major issue. In fact, the most recent Computer Law & Security Report features a piece by Steven Davis, author of PlayNoEvil, and W. Joseph Price about the state of security in the gaming industry. Their verdict was less than reassuring if you're a player or developer. Sure enough, just a few weeks after the report was issued, Grand Theft Auto IV was leaked prior to release. So what is a developer to do? What about the video game community?

To start, a "pirate" is someone who illegally reproduces or distributes something that is protected by an intellectual property right. In simple legal terms, that person is infringing on the rights of the copyright, patent, or trademark owner. While any intellectual property can theoretically be "pirated," I'm only talking about items that can be copyrighted. And before anyone points this out, yes, this is what groups such as the RIAA have taken pretty extreme steps to combat. Of course, the music industry and game industry are two different beasts.

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

Last week, Sean Bersell of the EMA directed me to a lawsuit out of California that had him concerned. Once I had a chance to read over the suit, I didn't just share Sean's concern, I was actually cringing at the potential of this suit to bring about the death of consumer rights as we know them. If you have ever bought a DVD, CD, or video game, then this suit could affect you. I sincerely hope that the courts will, in their wisdom, not side with Universal Music Group's expansive view of the copyright law. But, I'm getting ahead of myself. The suit in question is UMG Recordings Inc. v. Augusto. (The EFF has many of the court documents available at that link, if you would like to read the filings.)

To summarize the lawsuit, UMG puts out early release promo CDs, which go to radio stations and reviewers. Augusto runs an eBay business selling music, and one of his big focuses is re-selling these 'rare' promo CDs. UMG claims that re-selling these CDs is a violation of its copyright, and Augusto obviously doesn't agree. The case turns on interpretation of what is commonly known as the 'first sale doctrine,' even though it isn't as tied to a sale as the name would suggest. To put the gravity of this into perspective: UMG's claim, essentially, is that a copyright owner can control what the consumer can do with a product once it is in the marketplace. In other words, the copyright owner can prevent you from reselling a game you bought, or even throwing it away. That level of control, besides being wholly impractical, should sound as crazy to you as it does to me.

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

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!

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

We're here today to discuss the greatest threat to the world as we know it: Zombies. Or, rather, how that particular threat has become the topic of a lawsuit over who controls said brain-eating, reanimated corpses. Before I start commenting on the suit, I have to put forth this bit of a disclaimer: I'm not privy to the court documents, and my commentary is purely speculative. That being said, there are a lot of problems with this suit from a theoretical standpoint.

The suit cites, specifically, both trademark and copyright claims. I have my doubts about either claim being successful, but I'll begin with the trademark issue. For those not familiar, intellectual property law has three major areas that involve Federal registration in the US: patent, trademark, and copyright. In short, patents protect ideas, trademarks protects brands, and copyrights protect expressions. The trademark claim, then, likely involved some issue of dilution or confusion between George A. Romero's 'Dead' movie series (specifically Dawn of the Dead) marks and the 'Dead Rising' mark. Without some pretty substantial evidence, I don't think MKR group has much of a case based on this claim.

A sex program for virtual world Second Life has forced its owner to hire real-world lawyers to hunt down the identity of a person who has been allegedly reselling his work. Kevin Alderman, who created the sex program and owns Eros LLC, makes realistic genitalia and creates sexual moves for Second Life citizens. He's been doing it for about four years now. An avatar named "Volkov Catteneo" stole the code Alderman created and has been reselling it. When Alderman confronted the avatar, the person behind it said, "What are you going to do? Sue me?" And that's exactly what Alderman is trying to do.

Linden Labs, who owns Second Life, says they are unaware of any other real-world litigation going on between customers of the game. The key to this suit is that items created by users in the game are "owned" by them, along with the copyright. Although this suit involves the titillating concept of sex, it's your run-of-the-mill copyright infringement and theft story. Alderman's suit does not specify damages but his lawyers are currently subpoenaing PayPal records and putting together the virtual paper trail of theft. Fred von Lohman, a lawyer for the Electronic Frontier Foundation, locks it up saying, "This seems like a relatively straightforward case. It sounds like there is a real copyright issue."

Can a man own the term "gaymer"? Chris Vizzini, owner of community site Gaymer.org, is looking to find out as he's applied to trademark the term. Now, before we lose people in a hail of righteous fury and legalese, it should be noted that Vizzini is only looking to trademark the word from online groups trying to use the term in another context. It's also worth noting that the controversial term "gaymer" had been used to describe the gay gaming community before Gaymer.org showed up on the scene. Also, as can be clearly seen in the photo, Gaymers original cider has been enjoyed since 1770 by the island of Britain.

There is currently some heated debate about the issue on the Gaymer.org forums and the other large gay gamer community site Gamers.Experimentations.org. Although many don't identify with the term "gaymer," it's still interesting that the term has gotten to the point of needing trademark protection.

GayGamer.net's site owner, who goes by the handle Fruit Brute, says, "I know there are many people that frequent our site who are members of both Gaymer.org and GamersExperimentations and I am all for that. I wish there was someway we could combine them all together in one big, happy, rainbow filled, pink glitter sprinkled family, but situations like this really seem to cause people to draw their lines in the sand."

To bring the issue into wider focus, what if someone tried to trademark terms like noob, pwn and other commonly used words part of gamer speak? Should one man control a word's destiny online when it's tied to a group in our gamer community?

Here's something abandonware enthusiasts can be thankful for: the Library of Congress yesterday approved six exemptions to US copyright. The one most pertinent to gamers is that, for archival purposes, copy protection on software no longer being sold or supported by its copyright holder can be cracked.

What does this mean? Well, those retro games -- classic or otherwise -- that you can't seem to find anywhere can now be preserved without fear of ramifications. Although it is still unlawful to distribute the old games, free or otherwise, rarely do any abandonware cases go to court. The ruling is more symbolic than anything, but a step in the right direction.

Other rulings involved the rights of consumers to crack cell phone software locks for use on other carriers, the rights of educators to make compilations of DVD scenes, and the rights of blind people to use third-party software in order to read copy-protected electronic books. These rulings come as clarifications of the Digital Millennium Copyright Act (DMCA). All new rules take effect on Monday and last for three years.