The Viewpoint: Are your favourite video game mods copyrightable?

The video game industry has become a powerhouse of entertainment, having generated a larger revenue as compared to the movie and music industries. The advent of the internet has induced a number of widespread changes to the industry, including the concept of ‘game modification’ popularly known as ‘Modding’.

Modding is an act of changing a game, generally through computer programming, with the help of software tools that are not a part of the game. The alterations performed are known as modifications or ‘mods'. In other words, mods are the changes brought in the game by the users by adding or altering data.

The growth of mods is exponential, given the nature of socially networked games. The gaming industry has been highly impacted by these mods. Many successful games like ‘Counterstrike’ and ‘Cry of Fear’, are mods that have originated from an earlier game known as ‘Half-Life’. The history of mods can be traced back to the 1990s, when Personal Computers were more accessible. With the release of ‘Doom’ in 1993, the fans formed one of the earliest and largest modding communities.

The developers of all games generally support mods and provide accessible tools to modders and even offer rewards. A game can be customised and tailored to the user’s needs. Presently, there are five types of game mods that are recognised: user interface customization, game computer customisation, game conversion mods, game control hacking and machinima and art mods.

Though the concept of game modding is not new in India, there are no rulings laid down by the Indian courts on the copyright aspect of such mods. However, courts in the United States have held that modders are restricted from claiming copyright over their creation, even after putting in hard work for creating such a mod. Thus, modders cannot assert ownership over their work and cannot legally profit without infringing the game owner’s copyright. The original developers of the game legally have the right to block the publication of the mods unless there is a license agreement, otherwise known as End User License Agreements (EULA).

Copyright and Mods: US Courts

The US Copyright Act, 1976 protects an audio-visual and literary computer programme. Derived works such as mods can be brought under the ambit of § 101 and § 107 of the said Act, which deals with derivative works and fair use, respectively. The doctrine of fair use permits the usage of copyrighted work, without consent, in specified circumstances such as for criticism, commentary, and teaching. On the other hand, a derivative work is a material that is based on certain pre-existing work and is under the scope of copyright protection for an original work. Thus, the copyright owner has the right to own and control all derivative reproductions.

Though the United States Supreme Court is yet to rule on this subject matter, the Circuit Courts have ruled on the issue of mods and their copyright on numerous occasions. In Midway Manufacturing v. Artic International, the plaintiff sued the defendant for allegedly infringing the copyrights of Pac–Man and Galaxian, which were two famous arcade games owned by the plaintiff. The defendant was selling a mod for a plaintiff’s game without a license, which resulted in the speeding up of the rate of the game. The Seventh Circuit Court opined that there was an enormous demand in the market for these modified versions of the game, thus denying the rightful owners of extra revenue. The Court thus held that the defendant’s mods were derivative of the plaintiff’s game, and its unlicensed sale amounts to copyright infringement.

In Lewis Galoob v. Nintendo of America, the appellant constructed a device that enabled mods and alteration of the features in the Nintendo Game Genie device. The company sued the appellant for alterations made claiming that it was a derivative and therefore a copyright infringement. The Ninth Circuit Court, however, held that the device did not constitute a derivative work since it was a separate device altogether and only worked when applied with compatible games. Further, the changes made by the device were temporary and disappeared when the device was removed. Even if it were a derivative work, the appellant, who is a consumer and not a company, would still succeed due to the non-commercial usage prong under the fair use doctrine. The fair use test is as under:

a) The purpose and character of such use;

b) Whether such use is commercial in nature or for non-profit educational purpose;

c) If substantial portion of the copyrighted work is used and the effect of such use on the potential market or value of the copyright work.

Basis the above, the Court concluded that Nintendo is neither competing in the market of at-home, non-commercial alterations, nor can be anticipated to compete in it. Therefore, in any case, the fair use doctrine would be applicable to the appellant.

Though from a legal standpoint this case may appear as a victory for modders, Carl Lindstrom in his work has highlighted the lack of implications it has had on the modern modding regime. Modern mods mostly, in contrast to the device in the above case, change the game permanently until the player uninstalls the mod. Further, the modern mods are not created by an individual consumer for home use but are created by third parties and distributed to consumers over the internet. Therefore, the fair usage doctrine would also be inapplicable due to the commercial nature of such mods.

This incidentally, was dealt with by the United States Court of Appeals for the Ninth Circuit in Micro Star v. Formgen’s, specifically in relation to ‘commercial modders’. The defendant sold ‘fan-made’ mods without the permission of the copyright holder. The defendant’s primary argument was that the mod was an advanced version of the game and was therefore not derivative. The Court rejected this argument and opined that the relevant factor was the copyright holder’s right to create sequels and not the presence of similar features. Therefore, any new work based on the same characters and story would constitute a derivative.

The Court further opined that the mods were a commercial use of the copyrighted material and therefore would not be covered under the fair use doctrine. In short, the Court held that mods are a derivative and infringe the copyright of the owners, i.e., the gaming company. This ruling has set the law regarding mods and copyright infringement to date.

Mods and EULAs

EULAs are entered into between modders and the gaming company wherein the latter provides license to the former to use the software and produce mods based on the conditions stipulated in the agreement. However, the standard industry language used in the EULAs is opined to be highly draconian. For instance, the EULA agreement for ‘SIMS 3’ states that in case the use of the software gives rise to any copyrighted interest, the modder through this agreement grants the company exclusive, perpetual, irrevocable, fully transferable, and sub-licensable worldwide right and license to use the mods for any purpose in any manner.

Recently, gaming company Blizzard updated its EULA and clarified that all mods are its property. Therefore, anything produced by the modders is wholly owned and controlled by the gaming companies through the operation of such standard EULAs in the gaming industry.

Conclusion

The current mods regime in gaming is structured around decisions of courts and EULAs, which are determinantal to modders. Courts have concluded that game mods are a derivative work and therefore the ownership lies with gaming companies having the requisite copyrights. Game mods therefore have not been viewed by courts as a value-add to the original work of the gaming companies, but rather as an infringement of their copyrighted work.

The authors are Founder and Associate respectively with Shivadass & Shivadass (Law Chambers). The authors would like to acknowledge the contributions of Abhinav Gupta, a third year law student from the West Bengal National University of Juridical Sciences, Kolkata.

The contents and comments of this document do not necessarily reflect the views/position of Shivadass and Shivadass (Law Chambers) but remain solely of the author(s). For any further queries or follow up, please contact admin@sdlaw.co.in.