Do Library & Church Game Nights Violate EULA?

While libraries and church groups are increasingly turning to video game events in order to attract teens, such get-togethers may have copyright implications, according to the School Library Journal.

Check out this Q&A posted yesteday:

Q. Lots of school and public libraries are hosting gaming tournaments, featuring popular video games like Guitar Hero and Madden Football. Since these games are intended for home use, isn’t that similar to purchasing a movie and showing it to a large audience?

 

A. Everyone seems to be asking that question! Video games come with licensing agreements, and before purchasers can play the games, they must agree to their terms. The video-game licenses that I’ve seen are strictly for “personal, noncommercial” uses—not public ones. So when libraries host gaming programs, they’re violating these agreements. Yet, lots of libraries are doing just that—and they’re getting away with it. And some are even charging an admission fee to attend these events. What gives?

 

My guess is that video-game distributors never anticipated their games would be used publicly. So when their lawyers drafted the licenses, they simply used language commonly found in software contracts…

 

Librarians can: (1) continue to offer video-game competitions and let the chips fall where they may; (2) contact the rights holders and ask if their licenses can be modified to accommodate your programs; or (3) email the rights holders and tell them you’re opting out of the portion of the contract that allows only home use—and unless they tell you not to, you’re planning to offer gaming tournaments.

GP: It’s a fascinating question. Game publishers would look like big meanies if they tried to enforce this, of course. On the other hand, I believe that Internet cafes pay for some type of multi-user license for some online games.

UPDATE: A well-informed video game industry source dropped GP a line, offering some insight on this story:

For motion pictures, schools, libraries, and other institutions get licenses to exhibit the movies. It’s pretty straightforward and no-one seems to have a major problem with it. See http://www.movlic.com/ and http://www.mplc.org/aboutMplc.php I’m not aware of similar services for video gaming. Probably should be.

 

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63 comments

  1. Anonymous says:

    You’re right…they do not loan out the medical encyclopedias, for instance, because they are so costly to replace (anywhere from $300-500).

  2. Anonymous says:

    The courts have recently upheld the “first sale doctrine” for software, and I imagine they’d do so if it were brought up for games as well.

    This isn’t entirely accurate. The court expressly passed on the issue of whether the ORIGINAL transfer was permissible. However, since the person sued wasn’t the contractual party, the court didn’t find the sale violated the original EULA.

    I also think that the court sidestepped some really significant issues, but that’s besides the point. The parent mischaracterized the holding in that case.

  3. cjovalle says:

    There’s little incentive to. One of the positive aspects of the law is that certain nonprofits that meet the legal criteria can have damaged for infringement reduced to 0, if they’re acting in good faith.

     

  4. Anonymous ( User Karma: -12 ) says:

    Jason

    Looking at the attack on modchip users they already are IMO, the media industry is pretty much in league with the RIAAs tactics unless they go out of their way not to be in line with  thos mentalities..

     

    They have not gone after church or libraries yet because there is lil gain to it, once they figure out how to milk it they will.

     

     

  5. Jason says:

    Going after public librarys would be the equivalent of punching an old lady in the face and then posting it on youtube. They would start to look like the next RIAA.

  6. Anonymous ( User Karma: -12 ) says:

    Tis zippy again

     

    Since big media has issue over free advertising (if you can’t tell they hate it) they tend to like their inbreed contracts it makes them feel safer.

     

    Lending and creating a backup are fair use issues yet they blantly try to side step consumer rights time and time again, well they have pushed this consumer to never buy new again and to consider all non sold bootlegs to be fair hunting data.

     

    They need to simplify licensing structures as so you don’t off your budget, say you have 5 games from1 company then you get 10keys or however as many as you need in a monthly rental setup for pennies on the new cost of game, it would make for a steady flow of money to the publishers and shops could manage keys hell of a lot more effincailty, the game industry needs to learn what the music industry is learning sale at loss per item but in volume that gains you a profit above cost.    

  7. squigs says:

    It’s unlikely that any notice on a console game would be seen as an agreement. Rather a notice of the user’s rights as understood by the copyright holder. The purchaser still retains any rights he already had.

    Whether this allows use in schools and libraries isn’t all that clear. There’s a lot in their favour. Only people who belong to the organisation are allowed to play, and they are non-profit organisations. Private clubs can be considered public or private depending on circumstances.

    The publishers know this is not a big problem, is free advertising, and if they sue they risk bad publicity and a ruling against them. They typically prefer to take a “see no evil” approach, and pretend this simply isn’t happening. Telling them you’re doing it is probably a bad idea. It forces them to respond.

  8. squigs says:

    You can do that????

    You can negotiate any contract or agreement (I’ll leave whether this is an agreement to another post). Even in a shop, you’re allowed to offer less than the asking price. They’re allowed to make a counter offer or – more likely – refuse.

  9. E. Zachary Knight says:

    And that is one thing that absolutely has to be tossed out the window.

    No court in the world will side with any organization who makes people agree to terms they are not able to review before agreeing to them.

    They will also not side with said organization if the agreeing party is not able to negociate the terms.

    Those are the two main reasons EULAs fail.

    E. Zachary Knight
    http://www.editorialgames.com

     


    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  10. Billy says:

    (3) email the rights holders and tell them you’re opting out of the portion of the contract that allows only home use—and unless they tell you not to, you’re planning to offer gaming tournaments.

    You can do that????

    I’m gonna start doing that with all the bullshit parts in the EULA’s I find.

  11. sakurakira says:

    I think it probably depends on the individual business, and how far they will enforce this. The NFL for example, is very strict about any sort of large audience broadcasts of football games. I remmeber there was much ado about it during this past Superbowl, and some churches actually ran into problems because they were planning on showing it on a bigscreen.

    Regarding video games though, I have no problems with churches and libraries holding these kind of events, provided they are free… also a good way to attract teens, in addition to the content.

    If this becomes a problem, I’ll be interested to see how the industry handles it.

  12. cjovalle says:

    Ah, I thought you were referring to the "public" part rather than the "performance" part. My mistake. ^_^

  13. Jabrwock says:

    Computer games on the other hand, almost always have an EULA printed on the outside of the disc container, opening it and taking the disc you are assumed to have agreed to the EULA.

    Most.

    My parents were not impressed with one game we bought, where the EULA was in the same envelope as the disc, but the outside of the envelope was sealed with a sticker proclaiming that by opening the envelope we agreed to the EULA contained inside the sealed envelope…

    — If your wiimote goes snicker-snack, check your wrist-strap…

  14. Jabrwock says:

    Libraries generally do get licenses for movie nights because of the public performance issue.

    Yes, but my argument is that the "public performance" issue is moot, because video games cannot be played as a "performance" like movies can. It would be like requiring a library to get a "performance" license for hosting a "reading" night, even though only one person could read a particular book at a time (I realize that books can be read out loud, but I’m purposefully ignoring that "feature" for the example).

    — If your wiimote goes snicker-snack, check your wrist-strap…

  15. CyberSkull says:

     Given that so many facets of the EULA are unenforceable anyways, I doubt there will be a problem. Most console games don’t have an EULA at all. Go ahead. Look in your instruction manual. There isn’t one. Computer games on the other hand, almost always have an EULA printed on the outside of the disc container, opening it and taking the disc you are assumed to have agreed to the EULA.

  16. cjovalle says:

    Ruth Dukelow, a fellow member of the American Library Association’s Copyright Advisory Network, would argue that a video game may not be considered a dramatic performance (if it is a performance under the law at all).  Therefore, it may very well fall under the libraries and nonprofits exemption under 110(4). That particular copyright exemption allows noncommercial nondramatic public performances.

  17. TheEdge says:

    Well,I like to think the games industry would be willing to let their games be played for good causes like trying to get people to go to church(unless they’re atheists).

    Even if they did violate,I like to hope the industry wouldn’t be so greedy to press exuberent charges.

     

  18. Pinworm45 ( User Karma: 0 ) says:

    As far as I can tell, if it’s legal for EB games and other stores to have stations set up to play, there’s no reason this shouldn’t be legal. I’m sure those stores get the rights to do it, but if they do, I see no reason why librarys or what not wouldn’t.

  19. cjovalle says:

    Generally, though, the reason those materials aren’t loaned out isn’t because of copyright or other legal considerations. Usually it’s because of preservation and demand issues.

    Legally, we’re pretty sure dong something at the library is different from doing something at your house. We’d consider doing something at the library more of a public use than something at your house, a personal use (even if it does include a few more of your friends).

     

  20. cjovalle says:

    The issue is one that members of the U.S.’s professional organization, the American Library Association, has thought about at least a little bit. I don’t think we’ve come to any hard and fast conclusions, however. I know I’ve talked to others about it. The only time I specifically recall a similar question about games being brought up on a forum is here:

    http://www.librarycopyright.net/wordpress/punbb/viewtopic.php?id=1425

    Libraries do get licenses for movie nights. Some libraries have also had to stop allowing people to watch movies in certain circumstances (for example, allowing several people in a room to watch a movie checked out of the library) because of public performance issues.

    EULAs complicate things. Generally, librarians have to act as if EULAs are enforceable unless directly allowed to act otherwise (e.g., under the advice of counsel or permissions are sought). You can give up rights you would ordinarily have, such as fair use, through a EULA.

    There are other activities that libraries, schools, churches, and other groups untertake that could be considered infringement. Here’s an obvious one: Storytime.

    It’s a public performance, generally of a dramatic literary work. Librarians are pretty comfortable with that one, though- we think we have pretty good fair use arguments there, and no one has every sued a library for storytime to the best of our knowledge.

    This is related exactly to my academic studies, though. ^_^

    ALA Copyright Scholar

  21. cjovalle says:

    Libraries generally do get licenses for movie nights because of the public performance issue.

     

  22. baz says:

    In terms of financials,

    I think game companies are more concerned with lost money on used game sales at Gamestop than public playing. They’re not going to get much money by enforcing small local events to pay a premium.

  23. Artifex says:

    Ha! I considered this back when Halo tourneys were first being run by churches and libraries for profit. It’s the whole ‘cost of running’ charge or ‘ticket entry’ fee that makes these very sketchy, in my opinion. By placing a monitary value on the activity, they’re giving the publishers a lot of room to stand on.

    "My guess is that video-game distributors never anticipated their games would be used publicly. So when their lawyers drafted the licenses, they simply used language commonly found in software contracts…"

    I’d tend to disagree. While it is certainly possible that some companies used wording from existing contracts, most companies create EULA’s with specific wording and intent created specially for that software title by laywers who are especially experienced in writing them.

    Afaik, the agreements that I can recall specifiy where it is OK to play rather than list all of the places that are not OK. Assuming that an activity is peachy-keen because the EULA didn’t implicitly mention a specific use in their agreement, even after they exclude other uses, is playing a very risky game. It would be much safer to assume that games "are strictly for ‘personal, noncommercial’ uses", as the article mentions, than to assume ‘hey, they didn’t say public use, so everything is OK!’…it’s a lot like the little kid response ‘well, you didn’t say that I shouldn’t do it this way, so it’s not my fault!’ 

    And while I belive that there is no company in their right mind that would go after libraries and churches as long as the tournaments stay as local singular events, these folks ARE walking a very fine line. They’re able to get away with it only because they are taking advantage of their position as libraries and churches. If Gamestop, Walmart, or even your local Mom n’ Pop videogame store ran tourneys like these, they’d definately be contacted by the publishers (and/or their lawyers). And you can bet your hat that the publishers would be all over them if any church or library attempted to make this sort of thing a larger event, or some sort of crazy national tournament.

  24. DB says:

    Mmm’s comment @ 10:52am really nailed it.  This is less an EULA issue and more a public performance issue.  There really is an essential legal difference between a library loaning a game to an individual, and a library hosting a public game night.  But it goes to the public performance of a copyrighted work; an EULA might reiterate that, but it would be essentially redundant.

    The Vernor case is interesting in that it would seem to weaken draconian EULAs, the terms of which a consumer cannot possibly know before opening the shrink wrap.  But in Vernor the First Sale Doctrine was found to trump Autodesk’s EULA.  In this case the First Sale Doctrine isn’t being restricted; in fact, the EULA doesn’t even need to come into play because we’re still talking about a public performance of a copyrighted work.

    So really, I think the answer quoted in the original post misses the point.

  25. Eville1NSI ( User Karma: 0 ) says:

    @Aliasalpha:

    I think that’s falling into the copyright and IP issue at that point and less of a EULA issue. (See John Bruce using Halo 3 pictures.)

  26. Aliasalpha says:

    They might be if they are using it as quasi-advertising, that’d be an intangible profit.

  27. EvilleNSI ( User Karma: 0 ) says:

    @Nightwng2000:

     

    See my previous statement. Video game EULA’s in particular do not differentiate between the person who bought it and who is playing. Since, say Army of Two can be played by two players it never says "and only the two players who play it for the first time." So as long as there is no money being exchanged for using the product then a church or library tournament is not outside the EULA.

  28. Aliasalpha says:

    They do need to simplify the EULAs, the reason noone reads them is because they’re in lengthy legalese, people try and just get confused because of the similar terminology & usually a lack of punctuation. Thankfully a lot of contract things are starting to drift towards plain english, with luck a streamlined EULA is just around the corner (sadly the sign on the corner reads "2163").

    Companies HAVE to protect their hard work & spell out the rights & responsibilities of both parties. A basic table would be ideal.

  29. Jabrwock says:

    The courts have recently upheld the "first sale doctrine" for software, and I imagine they’d do so if it were brought up for games as well.

    So really, "renting" it out is perfectly legal. And that in essence is what is happening here. They "rent" it to each person who sits down to play it, one at a time. This is no different than Blockbuster renting it out to one customer at a time, only the rental period is in minutes, not days.

    — If your wiimote goes snicker-snack, check your wrist-strap…

  30. nightwng2000 says:

    We should be comparing and contrasting other media formats as well as the USAGE of those media formats.

    Books, VHS and DVD movies, audio books and music on cassette and CDs, magazines, newspapers, and other media formats are all available at a library.

    But not all are loaned out.

    Not all books are loaned out, in fact.  Usually, these are noted as reference books, but they may also be in special sections of some libraries.

    Newspapers and magazines are also not checked out for personal use.

    But the majority of books, VHS/DVD movies, and some other media formats are checked out for the patrons to make use of at home.

    Also, some libraries allow the use of PCs for a limited period allowing patrons to access the internet for a limited period of time per day.

    We should note that video game tournaments at either libraries or churches take place AT the library or church on their machines.

    How different is this from someone inviting friends over to their house to play games with 2-4 players?

    If the games were purchased by the libraries/churches, how can  a EULA be held against them to hold tournaments?

    In the case of a library, they may have to have special permission to loan the games out, but if the game is maintained at the library/church, then it is being used by the library for library purposes only.

    If they allowed the use of gaming systems the same as they do with PCs, then special contracts may also be required (if such contracts exist for using the PCs in the same manner).

    Nightwng2000

    NW2K Software

    Nightwng2000 has also updated his MySpace page: http://www.myspace.com/nightwing2000 Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as http://groups.myspace.com/pfenl

  31. Torven ( User Karma: 0 ) says:

    One of the reasons rental stores were so eager to jump on video game rentals was because unlike videos, console games do not require a special license to rent.  The Computer Software Rental Amendments Act of 1990 ,  states:

    17 U.S.C. §109(b)(1)(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.

    (B) This subsection does not apply to–

     

      (i) a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or

       

      (ii) a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.

       

    This exception was set to expire in 1997, but sunset clause was eliminated in 1994.

    Long story short, unless the laws have changed, the schools and libraries should be fine having console based fun nights.  If they are having PC LAN parties, that may be another issue.

  32. Jabrwock says:

    I think game companies are more concerned with lost money on used game sales at Gamestop than public playing.

    They’re going to have a hard time arguing that though. First Sale Doctrine has been upheld in court, granted over a used copy of software, but the principle applies. The court essentially ruled that software COPIES are sold, not licenses, and so merely stating in the EULA that you cannot resell a program/game does not mean that it’s enforceable…

    — If your wiimote goes snicker-snack, check your wrist-strap…

  33. Jabrwock says:

    There really is an essential legal difference between a library loaning a game to an individual, and a library hosting a public game night.  But it goes to the public performance of a copyrighted work; an EULA might reiterate that, but it would be essentially redundant.

    I disagree. Is it a public performance if by sheer design it cannot be "viewed" by more than a small handful of people (ie the max concurrent players) at a time?

    That would be like the library hosting a movie night, but the movies could only be viewed by 2 ppl at a time in a sealed room, followed by 2 more ppl, etc. You’d be hard pressed to argue that that was a "performance" rather than an "extermely-short-term-rental"… (ie the rental period was the length of the movie itself…)

    — If your wiimote goes snicker-snack, check your wrist-strap…

  34. Anonymous says:

    if publicly trying a game meant a lost customer demo kiosks wouldn’t exist

    -kurisu7885

  35. Monte says:

     I can see damn good reason for the game industry to ignore EULA in this case.

    Video games and movies are very different in this manner. Movies are something that many people will only watch ONCE and then they may never see the movie again, or it might be many months before they do. Any person who sees the movie publicly, without even a cent going to the industry, is a customer lost; so the movie industry makes those public showers pay them for the license to show the film to multiple people so that the industry still gets something…

    Video games, specifically the multiplayer games you would find at these events, on the other hand, are NOT something people can play just once and be done with it. Most games, would leave the player wanting more. At these events he waits anxiously to get another turn playing. In the end, the player is gonna leave the event WANTING to play the game. 

    And there in lies the difference. Public viewing of movies can cause a LOSS in customers, but the public play of video games works like free advertising and CREATES customers.

  36. Jabrwock says:

    UPDATE: For motion pictures, schools, libraries, and other institutions get licenses to exhibit the movies. It’s pretty straightforward and no-one seems to have a major problem with it. 

    Yes, but… a motion picture only prohibits public showing, there’s no way for them to technologically prevent it (the DVD player cannot count the number of viewers…) Hence the need for a clause, and special permission.

    By their design, video games already prohibit public showing, because you can’t have 120 ppl playing the same copy of the game all at once. Unless you’ve made illegal copies. So if there’s one copy for every person, then you’re not "showing" it to masses of people at the same time from the same copy…

    Public showing, in terms of movies, means showing it to more than just a few friends. IE showing it to a crowd, to the public. It does not necessarily mean showing it IN public. By that logic, merely playing your DS outside your house would be a breach, because anyone could look over your shoulder and see the game…

    — If your wiimote goes snicker-snack, check your wrist-strap…

  37. EvilleNSI says:

    The problem being that "No one reads that stuff right? Right?" I deal with this on a daily basis and it kills me. Your average consumer would like the entire EULA to go away or to simply state, "Here, do whatever you want with this piece of software." While ignoring company rights. Because, according to the entire world not one single company on the planet has rights except to put out stuff we want to buy.
    Hell, have you seen Itunes EULA? It would seem that Apple doesn’t want you using Itunes to pilot planes or submarines. Nor can you decompile Itunes to make a WMD or guidance system.

     

    Now why not? I don’t think that’s fair! Heh.

  38. Daniel says:

    Sorry Billy, your friends can’t come over and play Guitar Hero with you becasue then it’s no longer private use.   Is this where it’s going to end up?

  39. Belgarion89 says:

    If I were a game publisher, I think I’d want to encourage these nights since they provide free advertising.  It’s a lot like playing the consoles at Gamestop.

    ———————————

    So speak I, some random guy.

  40. tlhardister says:

    Tina Hardister thardister@saline.lib.ar.us

    Ok I was hit with this today during a webinar regarding licensing for gaming. 

    From School Library Journal:

    What should librarians do? I can think of at least three options. Librarians can: (1) continue to offer video-game competitions and let the chips fall where they may; (2) contact the rights holders and ask if their licenses can be modified to accommodate your programs; or (3) email the rights holders and tell them you’re opting out of the portion of the contract that allows only home use—and unless they tell you not to, you’re planning to offer gaming tournaments. Although the last option sounds incredibly brazen, copyright experts say it happens all the time in the business world. Of course, there’s always the possibility that your library may be held liable for misusing a video game (sorry), so each of us needs to determine how much risk we’re willing to take.

    How and who do we contact in order to do any of these options? Does anyone know?

  41. Anonymous says:

    Generally it’s because the EULA allows the game to be played by the maximum amount of people specified on the case.

    No. There are two tiers: the EULA and copyright law. Copyright law makes public performance an exclusive right of the owner of a copyright. Unless you have some case law to the contrary, the first sale doctrine does not abridge this right. So the only way they’re safe is: 1. if the EULA permits it; or 2. if the use is fair use.

    Commercial activity is only one prong of the fair use analysis. In order to be “safe,” those libraries and churches need to complete the entire analysis.

    They’re safe IMHO.

    It’s a good thing your opinion doesn’t matter.

  42. EvilleNSI ( User Karma: 0 ) says:

    Every piece of software has a EULA. EVERY one. Internet cafe licensing is done through a special licensing agreement as well as hosting. Game nights at public places like Churches and Libraries do not violate the EULA unless there is an entry fee of some sort. Generally it’s because the EULA allows the game to be played by the maximum amount of people specified on the case. (IE two) and since you cannot play console games with more than the number specified anyway it doesn’t matter if it’s the same two people playing or not. The console would not specify WHO could play, only how many could play at the same time using the same disc.

     

    They’re safe IMHO.

  43. Anonymous says:

    :: I really like the idea of altering the EULA and sending that to the game company and waiting for their response. If you get no reply, they must approve. 🙂 ::

    Except that would be legally ineffective. Your changes would constitute an offer. Their silence is not acceptance and would likely be a rejection. They’re under no obligation to accept your changes. If you went ahead and used the software, the old terms would still be in force.

    How this might work would be to make the changes to the EULA at the time of sale. Present the contract to someone with apparent or actual authority to accept the changes and THEN buy the software if they don’t make any argument. There are, of course, lots of problems with this approach too since few software companies sell their own software through venues making this easy.

     

  44. Aliasalpha says:

    Hehe maybe jack thompson could try it "Dear florida bar, I’ve decided that I no longer have to adhere to the rules I originally agreed to, furthermore this is retroactive so please disregard all prior breaches. Thank You"

  45. E. Zachary Knight says:

    To me, this sounds well within the relm of Fair Use. Both churches and libraries ae Non-profit organizations. Any entry fees they charge are used to cover operating costs of the facility and organization.

    I really like the idea of altering the EULA and sending that to the game company and waiting for their response. If you get no reply, they must approve. 🙂

    E. Zachary Knight
    http://www.editorialgames.com

     


    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  46. cjovalle says:

    Unfortunately, if there’s a license, it trumps fair use. You can agree to give up rights you would ordinarily have otherwise through a license.

  47. cjovalle says:

    "Private use only," depending on the media, might not actually mean anything. Many DVDs say "private use only" when you start playing them, "licensed for home use only," or something similar- but that doesn’t mean that first sale or other copyright exemptions don’t apply.

  48. Aliasalpha says:

    I’ve not got that, I’ve got SOME EULA stuff but not that detailed. Mine has the usual "don’t copy, rip off, lend to mates (love that one), no decompiling, reverse engineering", it DOES have the "this program is for private use only" thing.

  49. cjovalle says:

    I’d question the enforceability of a EULA for a book (although we seen it attempted before). However, the more likely solution to that issue is that the library would be advised not to buy such items.

    They might be infringing the copyright, absent a license. If they don’t agree to a license, then there are stronger and weaker fair use arguments that can be made. At that point its a matter of risk analysis from the institution.

  50. mmm says:

    There’s a couple things going on here. I assume most video games (for consoles) are sold like books and, thus, first sale doctrine will apply. This means that there’s no need for a EULA, though, I don’t really see why they couldn’t include a EULA.

    Under the first sale doctrine, a rights holder does not lose their exclusive rights to copy, publicly perform and public display. The rights holder does lose their rights to prevent subsequent transfer, in whole (though, apparently that doctrine is under attack even for restricted transfers of software). This frequently arises in other fields unrelated to software: public performances of sheet music purchased, reading plays aloud in a park, reading books on the radio, etc.

    So, to the extent that these are public performances/displays, then, yes, the libraries, churches, bars, schools, etc. are infringing the copyright. And, for that matter, the infringement shouldn’t be any more controversial than you putting on a play in a park for members of the public.

    Whether this is good advertising is beside the point. The point is that they probably need a different license. This becomes especially acute where certain venues are actually EARNING money from these performances (bars, churches, libraries) since the fair use arguments starts to tilt further and further away from fair–the same could be true for feeless performances too, of course.

    Like all bad legal advice, most of the suggestions for librarians (absent getting a license) are legally risky even if any action by the rights holder will be seen as "big meanies." Looking like a big meanie certainly hasn’t stopped folks in other creative areas before.

  51. NotMyName says:

    I seriously hope that was snark.

     

    —–

    By reading this comment you agree to sell me your first-born at prices to be determined at a later date.

  52. Anonymous says:

    @NotMyName:

     

    It is legally enforceable because in the agreement itself it says "By playing this game you agree to the above terms."

  53. Anonymous says:

    Too bad there isn’t some association fighting for the rights of consumers of electronics. That sounds like an association that could be doing something to reign in EULAs that overstep the company’s rights.

  54. NotMyName says:

    Never saw the "license" before or during the purchase of the game, never had to read/agree to it to run the game…. remind us again, why is this considered a legally enforcable document?

  55. DeusPayne ( User Karma: 0 ) says:

    What? Of course theres EULAs. Did you actually look in the GTA IV manual? I opened mine up, and it was on the first page I looked (last page of the manual). You agree not to "(f) use or copy the Software at a computer gaming center or any other location-based site". Seems to me like it’s expressly prohibited.

    However, looking at the typical "party" games like Rock Band and Smash Bros, their licence agreements (if they even have them) seem to only prevent copying, and doesn’t care about multiple people/consoles using it. I wouldn’t be surprised if most party games are like that.

  56. Aliasalpha says:

    Yeah, I’d probably sponsor them, maybe offer a game as a door prize or something. It’d be good PR and funny if a church hosted a gaming session of gears of war…

    Do console games have an EULA? I just had a look at the manuals for army of two (since it’s ea I figure they’d have to have a draconian one and it’d probably include a clause regarding relinquishing the soul of your firstborn if you so much as imply by body language that you’re not having the best time in the history of the world) and GTA4 and except the amusing disclaimer saying that rockstar don’t endorse or encourage emulating the actions in the game (Like drunk driving you MADD twats), there’s no sign of EULA style legalese except talking about warranties. I seem to recall the 360 itself having something along the lines of an EULA, was it a broad over-arching "Whatever you use this machine for it must be private & non-profit, even if you’re spanking midgets with it or trying to shag it" kind of thing?

    By a quick look at the manuals & cases, it sounds like open season (though I’m certain the "everyone knows you can’t do that" argument would probably stand up in court)

  57. Brokenscope says:

    Many a lan party would violate this aswell. What about a party with 30 or 40 people at your house?

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