New ways of looking at video game IP

I suggested the other day that we use video games as the industry in which to consider hybrid IP for software.

I suggested this because video game software, more than any other kind of software, still retains the elements that were patentable in their mechanical (i.e. non-virtual) predecessors.  Let’s look briefly at Monopoly, U.S. Patent # 2,026,082, filed in 1935.  The patent contains sketches of all of the components in the box (the board, cards, playing pieces, and dice), and the following opening paragraph:

“This invention relates to board game apparatus and is intended primarily to provide a game of barter, thus involving trading and bargaining.”

Thus we all three patentability requirements met.  Monopoly is novel (although this was contended, as it had a predecessor), non-obvious (it is in fact an invention), and useful (it “provide[s] a game of barter”).  The patent on the whole, 14 pages long, includes those sketches, as well as the rules of the game, and a list of 9 ways in which Charles Darrow restates his claim over the invention.

Here’s what I got, reading over the patent and thinking about games as closed systems versus (other) forms of software expression:

Games are closed systems.  There is a wholeness to the game that maintains, strongly, its connection to its pre-software past.  This is why the video game industry is an ideal arena to test the hybrid model.

All of the elements of the earlier game survive the transition to digitization.  Although the dice, cards, board, etc., are all virtualized, they all still exist.

A word processor is a typewriter and a typesetter; but the patents in those machines are related to the specific mechanics in them.  The mechanical components of typewriters and typesetters are replaced by entirely different software tools, which in turn send the data to printers, monitors, etc., which are in turn patentable.

The rules of the game are patentable; the rules of writing are grammar and thus not patentable.  The content generated by a word processor is protected by copyright, in turn held by the user and not by the software publisher.  Word processors are open systems.

I’m not going to suggest at this point that we also set up a closed system / open system dichotomy.  So far, it collapses under scrutiny.  But I’ll leave the idea floating around as we move forward:

A novel can be written without Microsoft Word.  Monopoly cannot be played without, well, Monopoly.  But what about a short story set in Norrath (a world in Sony’s EverQuest multiplayer online game)?

I would like to introduce a new IP dichotomy.  We’re used to the old ones, like protected and public domain, or idea and expression.  I want to consider expression and platform.

It seems that in copyrightable software, we have no problem separating the platform for creation – WordPress, for example – from the expression – this post.  In software with a direct antecedent that was patentable, however, the expression is bound up in the platform of its creation.

I’ll try to explain:

Let’s suppose that for a given instance of a game, someone logs the thing and writes the story of it.  That may sound lame and boring in the Monopoly example, but not quite so dull in the case of a massively multiplayer online game like World of Warcraft.  In fact, Sony went nuts a few years ago over a player who used EverQuest as a platform for the creation of fiction starring his online persona, Mystere.  Sony claimed that Mystere inaccurately portrayed EverQuest as more violent than it was.  One way or another, EverQuest was the platform for the creation of a copyrightable expression beyond the “closed” system of the game:

http://www.gamegirladvance.com/mmog/archives/2002/10/21/stripping_the_dark_from_dark_elf_in_eq.html (Note that this link contains a version of the story different from how I remember it.  I told it above as described by web page behind this link.)

Is EverQuest more like Monopoly or WordPress?

It is a game, with rules constraining the actions and interactions of the players and environment; but it is not a system as closed as Monopoly, with its realm of possibilities as easily circumscribed as Monopoly’s was in its patent claim.  EverQuest is a platform, being an open game, yielding narratives not predictable to the game creators.

This is where we tread the line between copyright and patent – between creative work and invention – that has plagued software intellectual property protection for a very long time.  The game bears enough in common with its paper-and-dice ancestors to merit some form of patent consideration; yet the invention here is in fact a platform for storytelling – a tool to inspire and facilitate the creation of content by its users.  This platform concept is unique to software, and to the aspects of software that have traditionally placed it in the copyright camp.  The software is an expression that when combined with a patentable machine – the computer, network equipment, etc. – becomes a platform for further creation.  But it is not entirely an expression; it is also a virtual machine.  It may be likened to a piano:  there is creativity in its expression – the colour, the wood, the size, the orientation – all of which contribute to its artistic function as a platform for the creation and performance of music.

Sony established its IP claim on its users’ stories through the EverQuest End User License Agreement.  By doing so, it implies a platform / expression dichotomy, as the EULA authors knew that statutory IP would not cover expressions created by users of the game.

We can also look to the Game Genie case (Nintendo of America Inc. v. Camerica Corp., [1991] F.C.J. No. 58, 42 F.T.R. 12, 34 C.P.R. (3d) 193) for instruction on this.  Rouleau J. established that the specific instance of a game being played was separate from the game cartridge itself.  The question posed by Professor Jon Festinger in his September 28, 2006 lecture at Dalhousie University was about the relationship between a derivative work and a new work.  Although speaking in the context of mods to games, Prof. Festinger’s question can be adapted to apply here:  Is the game played a distinct expression separate from the platform that spawned it, or is it a derivative work, inextricably linked to the platform?

How does all this tie together?

Games are platforms for the creation of further expressions.  Video games, being software, are protected by copyright, giving rise to a possible claim in those expressions as derivative works.  Patents are, in a sense, better suited to machines used to create other things.

If we accept that there is a platform / expression dichotomy in massively multiplayer online games, then perhaps a hybrid of patent and copyright is best suited to handle the developer rights in the games.  From that point, we can expand the hybrid to apply to other forms of software as well, in order to avoid the pitfalls of either patent or copyright holding back development in the software industry.