For a Modder’s Panacea, Adapt Music Licensing Techniques

January 27, 2010 -

While game modifications are generally looked at as derivative and infringing works, an academic paper argues that it would be fair to apply a licensing provision currently used in the music business to the mod community in order to advance the genre.

Cover Songs And Donkey Kong: The Rationale Behind Compulsory Licensing Of Musical Compositions Can Inform A Fairer Treatment Of User-Modified Videogame (PDF) was penned by John Baldrica, an attorney, and is published on the North Carolina Journal of Law & Technology website.

Baldrica believes that a compulsory “mechanical” license provision of the Copyright Act, which allows musicians to record cover songs as long as they pay a “statutorily determined royalty” to the original song’s copyright holder, would do wonders for the mod market. Such movement would “feed the professional talent pool” in addition to granting the “freedom to produce the kind of new and creative works that the copyright system was intended to promote.”

The author notes that under the U.S. Copyright Act currently, “the creator of an original copyrightable piece of expression is given the exclusive right to authorize any derivative works,” meaning that game developers can effectively kill a modification to their game anytime they want to.

The problems are; what exactly defines a derivative work and who owns the new modded material that has been created?

…such analysis has been inconsistent in key cases involving modification of videogames. As discussed, treating a mod as nothing more than an alteration of the underlying copyrighted videogame would cause mods to fall under the doctrine of derivative works. It would also strip modders of copyright protection and subject them to liability if the modifications were unauthorized by the original copyright holder.

The compulsory licensing scheme for music has been called “instrumental in the development of the recording industry.” The author goes on to draw a series of parallels between the early days of the music business and the current state of computer software, calling the similarities “striking,” and furthering his belief that “mods’ similarities to musical recordings should merit analogous treatment under a similar statutory licensing regime.”

Unfortunately, Baldrica does not see any changes being made in the near future to the current system for two reasons: “a lack of political will from those outside of the videogame industry and a vested business interest in the status quo from those within.”

Expanding on the first reason, Baldrica writes:

Yet, unlike its concern for the promotion of musical recordings in the first years of the twentieth century, Congress does not appear inclined to grant statutory protections to promote development of videogames in the first years of the twenty-first.

And more on the second reason:

…the game developers and game publishing industry are reluctant to abandon a scheme in which they already enjoy substantial benefits and negotiation power.


Comments

Re: For a Modder’s Panacea, Adapt Music Licensing ...

Personally, I don't see any need to change the current system. As a modder who has been making mods for over 20 years, and as one who has been threatened with legal action in the past (by Talonsoft back in the 1990s) I have reached the conclusion that developers are realizing that mods help to sell their products. That's why these days so many developers actively help modders to do what they do. Sure, the technicalities of the law seem to be against the mod communities, but since the year 2000 developers have been turning a blind eye to mods, and recently they've been helping out modders.

Of course when it comes to stand-alone games built from someone else's game, that's a different matter, and the owner of the copyright should be able to retain their right to make money from such things. But mods are not stand-alone games.

Re: For a Modder’s Panacea, Adapt Music Licensing ...

The developers really should look into the project, determine if the project is for profit (And therefore made to compete with the original work), and if it isn't, either officially back the project or leave it alone, and if it is, shut it down and have lawyers ready if they refuse to comply.

Crimson Echoes getting shut down was either a case of Did Not Do The Research, or because SE missed the part where they disclaimed ownership of the parts of the game that still belonged to SE, and actually encouraged the players to buy CT, CC, and CTDS.

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"A Chrono Trigger is anything that unleashes its will or desire to change history!" -Gaspar

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"A Chrono Trigger is anything that unleashes its will or desire to change history!" -Gaspar

Re: For a Modder’s Panacea, Adapt Music Licensing ...

I'm definitely going to read through this at some point, it's a very interesting idea and would be fantastic if implemented, regardless to say, but, as the author notes, fraught with several problems.

I run a mod site and I've seen the problems with copyright issues in the past. I once worked at a group called Amberfish Arts who are (\were) working on a sequel to Indiana Jones and the Fate of Atlantis as a fan-made game. Having the potential threat of a 'cease and desist' over the project was never a positive thing - and it's what happened to at least two Monkey Island fan games courtesy of Lucas Arts. Another online friend of mine was adapting R.A Salvatore's work for a WarCraft 3 campaign but was similarly told in a legal letter that he could not do so. Meanwhile, naturally Blizzard have been fine with people using their characters or storylines. I do remember an incident with a major mod\campaign called Legacy of the Confederation, where Blizzard intervened, but only to the extent that they asked for legal text in the campaign to identify it as being a 'mod' and not a 'campaign'. Apparently this was to prevent confusion from players mixing it up with Blizzard's own work.

All those copyright holders are doing is protecting their work, which I believe they legally have to (Someone can correct me - there's some sort of precedent that you have to be seen as proactively defending your copyrights), but it's clearly evidence that a change in the law would allow fan creators to flourish. Give them some framework and boundaries at least.

One problem that comes to mind is quality control. If a company embraces a fan-made remake of Chrono Trigger, for example, then they're inevitably not involved through the whole process. Fans may love it (I was awestruck by the trailer of a CT remake years ago) but the company will have a reputation and brand identity that they may want to maintain in a certain way.

People can cover songs and the record companies are either oblivious (Because the singer is unknown outside of the pub they're performing at) or they allow it since they get royalties due to an agreement. I'm unsure how this would work in the case of mods in similar fashion, typical mods are free and only then become commercial when they're massively popular, the likes of Counter-strike and Portal spring to mind.

Quoting GPs quote of the study:
"[i]…such analysis has been inconsistent in key cases involving modification of videogames. As discussed, treating a mod as nothing more than an alteration of the underlying copyrighted videogame would cause mods to fall under the doctrine of derivative works. It would also strip modders of copyright protection and subject them to liability if the modifications were unauthorized by the original copyright holder.[/i]"
I find this part interesting because, as I think the author is getting at, not all mods are strictly modifications of game code - there are an assortment of terms such as add-on, campaign, level pack, conversion and total conversion, some of which are actually "add-ons". Music covers don't work in the same way, as they're never the original song plus something extra, i.e. the original is never left intact.

The future isn't bleak for modding at least, not with the efforts of developers like Valve, who adapt awesome mods into full commercial titles, or Blizzard or Bioware who extensively provide tools.

Here's another query - how many people who play a game actually go on to mod it? Back in the 60s, I imagine any band could easily cover a song, whereas modders require an assortment of skills to do so. Or perhaps not, maybe it is the same equivalent?

Re: For a Modder’s Panacea, Adapt Music Licensing ...

Why not just apply this to fan "covers"(projects) then insure that if profit is made the royalty must be paid, this would protect mods that are not seeking to compete with the CP'd items are not held to the same scrutiny as projects that do everything they can to make money.


Until lobbying is a hanging offense I choose anarchy! CP/IP laws should not effect the daily life of common people! http://zippydsmlee.wordpress.com/


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

---

http://zippydsm.deviantart.com/

Re: For a Modder’s Panacea, Adapt Music Licensing ...

 "While game modifications are generally looked at as derivative and infringing works"

Um, excuse me? This is just plain ignorance. At best you can say game modifications that draw the most public attention are ones that get shut down like the Chrono Trigger one (which wasn't a mod, by the way.. it was standalone).

www.moddb.com

Re: For a Modder’s Panacea, Adapt Music Licensing ...

Still BS that instead of even trying to fidn a compromise it was killed off completely.

Re: For a Modder’s Panacea, Adapt Music Licensing ...

Sadly that fate has befallen MANY a fan project, such as the ill fated Chrono Trigger project soem fans were working on.

 

Modding should really be embraced. Fans manage to extend gameplay hours and even improve upon parts of the game, such as mods for Morrowind that improve graphical quality quite a bit. Or a mod for Oblivion that allowso lder PCs to run it. Or the upcoming Black Mesa Source, which is bringing what people expected from a Half Life remake

Re: For a Modder’s Panacea, Adapt Music Licensing ...

This sounds like a good idea.

I don't see how a mod can be considered a violation of copyright if it only has function calls to the original work.

 
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