I am intrigued by your distinction between open and closed systems and wonder how it intersects with the concepts of the fixation requirement in copyright law and the full disclosure requirement in patent law. The presence of a capacity to create a new expression in a game seems to militate against the use of traditional copyright law to protect the author(s)’ exclusive rights in the case of mods and/or derivative works. The entire purpose of fixation is to establish the “ur” form of the author(s)’ original expression to allow the comparison that gives permission for the deeming of copyright infringement. This comparison in turn leads to a rebuttable presumption that the author of a work created subsequent to the “ur” work has copied a “substantial” amount of the earlier work and therefore infringed. This is one of the difficulties at the edge of copyright and we see it most in the copyright disputes over music and the whole concept of “unconscious copying” in the case of George Harrison and the Chiffons. Similarly in patent law the filed claims of the patent determine whether or not the alleged infringing invention does violate the existing patent. Improvement patents can and do exist on inventions arising from existing patents and the need for cross licensing of improvement patents or the use of existing patented processes in a new invention are testimony to the disputes that can arise in patent. Once again the full disclosure of the best mode requirement is often important here.
I think your notion of a limited number of predictable ways to combine the various elements of the games to arrive at new expressions in a closed system does give the video game a patent-like nature, while the lack of of a demonstrable fixed expression except within a range of possibilities in the open system gives open system an achilles heel in the comparison and deeming provisions of copyright law. Yet those games that represent an open system as affected by mods and improvements confound the formal requirements of patent law protection. I think this points to the need for a new sui generis form of protection for the creators of video gaming. Let’s talk. K