Games and Other Uncopyrightable Systems

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Category: Intellectual Property Law, Legal Scholarship
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Chess knightI’ve long been interested in copyright and games—an interest that began with copyright and video games, but worked its way backwards to consider games generally. Games exist at the boundary of copyright law: they seem to include much that is protectable, and yet there is a general rule in copyright doctrine that games are not copyrightable. (For more, see my fourpart series on PrawfsBlawg in 2008, in particular Part III and Part IV; also this post).

I’ve now uploaded a new paper to SSRN, Games and Other Uncopyrightable Systems, that explains the purpose and argues for the continued vitality of that rule. Some may recognize the paper as what used to be Part I—the “background” section—of my long-awaited video games paper. The questions surrounding the copyrightability of games proved to be so intricate that it required a separate paper just to address them. In short, games are uncopyrightable because they are systems—a conclusion that is only moderately helpful, because systems themselves are not well understood. I therefore tackle that issue as well. Here is the abstract:

This article solves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two other categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. Neither definition gives the term any meaningful content.

Like solving a crossword puzzle, this Article uses each of these questions to shed light on the other. Games are uncopyrightable because they are systems. The case law that led to the adoption of Section 102(b) demonstrates that systems are schemes for transforming user inputs into a correlated set of outputs. Games do exactly that. A game is a scheme for transforming player activities into moves within the game. The reason why games and other systems are uncopyrightable then becomes clear: the purpose of a system is to serve as a forum for user activity; it is users, not authors, who provide the primary informational value to the outputs of a system. Games and other systems are excluded in order to fence in copyright protection before it reaches user creation.

Comments welcome!

Cross-posted at Madisonian.net.

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4 Responses to “Games and Other Uncopyrightable Systems”

  1. Hello Bruce! Thanks for publishing this paper. As creator and owner of RolePlayGateway, I have been meticulously following the game industry for quite some time and have particular interests in how the changing copy[left]right landscape has been affecting both producers and players — especially within the RPG community.

    I haven’t had the chance to read the entire paper as of yet, but I think you ask some excellent questions. I like to distinguish between the concept of a “system” and the actual “content” that exists within that system (or not), and I am of the differing opinion that both are inherently part of distinct enforceable copyrights. The creators of the systems have some sort of right to ownership of that system; just as the content generators have rights to the content that they provide within that system.

    Granted, our vertical is more relevant to “writing” than “games”, as we provide a service/system that allows our customers to create their own games using our method of defining these “systems”. We like to call it “collaborative fiction”, as it is essentially a group of authors adding to a work of art.

    What would you define as the “system” under this architecture? Shouldn’t the creator of each “game” have rights to the boundaries of the universe they have created? What role does authorship play in the copyright process of the content and the overall “game” summation?

    Looking forward to your feedback!

  2. Tom Kamenick Says:

    I’ll admit knowing very little about copyright law, but one thing immediately struck me as not making much sense:

    “The case law that led to the adoption of Section 102(b) demonstrates that systems are schemes for transforming user inputs into a correlated set of outputs.”

    Doesn’t that equally well describe computer programs like Microsoft Office? Word takes inputs (keystrokes) and correlates them into outputs – not just the letters and numbers, but with mounds of formatting data to place it in printable, transferable, and manipulatable forms. Excel can take your inputs and do calculations and make charts with them. A painting program can take touch screen inputs and correlate them into visual outputs. All these computer programs are copyrightable, though.

    Games do exactly that. A game is a scheme for transforming player activities into moves within the game. The reason why games and other systems are uncopyrightable then becomes clear: the purpose of a system is to serve as a forum for user activity; it is users, not authors, who provide the primary informational value to the outputs of a system.

  3. Thanks for these great comments and questions. Eric, I agree that game designers should get some protection for their creations — particularly video games, which I largely excluded from my paper because there are a lot more elements to consider than for board games and the like. It’s pretty clear that the software code is copyrighted, and there are audiovisual elements to contend with. I’ll tackle this more directly in a later article, but I think videogame designers should be able to get a copyright in the game environment. But I would draw the line at the game in play–I don’t think the copyright extends that far. What that means is that recordings of a video game in play, while they might feature copyrightable elements the background, are not verbatim excerpts of a copyrighted work (this is important, e.g., for doing an infringement analysis); it also means that players don’t need a public performance license to play a game in public (hosting a game is a different matter, but I don’t tackle that issue in this paper).

    Tom, that issue of what elements of a software program are protected is actually what is driving some of the current scholarship on Section 102(b) — some argue that courts have gone too far in protecting aspects of programs that are processes, or methods, or systems. Essentially the answer to your question is that yes, Microsoft Word is a system. What I think that means is that you could not, by copyright, prevent another company from designing a word processor that looked and worked a lot like Word. (Call it, say, “OpenOffice.”) But just like games, there may be component elements of Word that can be protected by copyright. Even though games are not copyrightable, the board may be, and so might the pieces or the cards. With Word, the software code is protected. And there may be graphic elements or other elements such as the help files that contain copyrightable expression. But the overall way in which the program operates is not, at least not by copyright. As the older cases all say, that protection would have to come, if at all, from patent.

  4. Tom Kamenick Says:

    Thanks, that’s a very helpful explanation!

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