Games and Other Uncopyrightable Systems

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 four–part 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:

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Supreme Court Takes Jurisdiction Over “Jurisdiction”

copyrightA bit overshadowed by all the hubbub over the oral argument in McDonald v. City of Chicago, the Supreme Court yesterday handed down an important copyright opinion in Reed Elsevier v. Muchnick. (But see Howard Wasserman, Marcia Coyle.) The court held that Section 411(a) of the Copyright Act, which requires registration of a copyright as a prerequisite to an infringement suit, is not “jurisdictional”—that is, failure to file a registration does not deprive a court of all power to hear a claim.

This might not initially sound significant; after all, a plaintiff who files an infringement claim on an unregistered copyright is still going to have the case dismissed, whether Section 411(a) is deemed a mere prerequisite to filing or jurisdictional. But the distinction matters in three types of cases: class actions where unnamed members of the class would include owners of unregistered works (the Muchnick situation); plaintiffs who seek an injunction against further infringement encompassing all of their works, registered and unregistered; and would-be defendants who file for a declaratory judgement against a copyright owner who hasn’t registered yet. All three of those seem like worthy candidates for a court’s consideration as a policy matter, but all three were impeded by a slew of lower court opinions holding that a failure to register deprived the court of all power to even hear such disputes. (Congratulations for the win are due to lawyers from my old firm: Chuck Sims, who argued the case before the Supreme Court, and Jon Baumgarten.)

A bit of background before I continue:

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Does Google Buzz Violate COPPA?

Google Buzz logoDanielle Citron over at Concurring Opinions invited me to write a guest post expanding on a comment I wrote yesterday on her post on the Google Buzz story. I’m reposting it here with more of the links enabled, which got lost in translation:

Google’s new social networking service, Google Buzz, has obviously been all over the news lately, in part for various complaints about Google’s privacy practices. Those complaints have focused on the way in which Buzz, enrollment in which was automatic for Gmail users, initially defaulted to effectively sharing users’ email contacts with the public. EPIC has filed a complaint with the FTC arguing that this combination of automatic enrollment and “opt-out” of information-sharing was an unfair or deceptive trade practice in violation of Section 5 of the FTC Act.

But that’s not what caught my attention in Danielle’s post. What really set off alarm bells in my head was Danielle’s recounting how her children and their friends, all under the age of 13, suddenly had their Gmail accounts turned into Google Buzz accounts, and then proceeded to upload all sorts of information about themselves using the service. That raises the prospect that Google Buzz, by collecting such information without getting the appropriate parental consent, violated the Children’s Online Privacy Protection Act, or COPPA. I haven’t seen any discussion of this issue anywhere else.

COPPA is one of the few privacy statutes with real bite: it has strict rules that require substantial effort to follow, and the FTC has shown itself to be a vigorous enforcer. Indeed, the FTC has gone after two social networking sites for COPPA violations recently, and in one case imposed a fine of $1 million. So is Google violating COPPA? The answer is unclear but there’s definitely risk for Google here.

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