Used Games/Copyright Debate is a Debate over Ownership

I can think of no more important topic to tackle as the first of 2012 than the debate over copyright which has been raging like a northeastern February blizzard these past few months.  It is a topic I hinted at months ago when I first offered my two cents on the debate over used video games, which were inspired by comments from some people within or close to the industry who argued that buying used games was tantamount to theft.  Since then there has a bitter political struggle over the power of copyright holders to hold onto their products.

First, a look at some recent episodes in this bitter conflict:

Last year Sony sued George Hotz, aka Geohot, who succeeded in jailbreaking the PlayStation 3 and placed on his website instructions how others could do the same.  Hotz attempted to restore OtherOS, a feature that allowed users to install their own operating system onto the PS3, which was marketed by Sony leading up to its release and subsequently removed, prompting a class-action lawsuit against Sony that was subsequently dismissed in the courts.  Sony maintained that the crackdown on Geohot was an antipiracy measure.   Sony and Geohot ultimately settled in March; however, it’s likely more than a coincidence that not long after Sony went after Hotz that the PlayStation Network was hacked, resulting in the loss of millions of users’ personal information and a month-long shutdown.

In other news rumors have circulated around the Internet that Microsoft will be putting in place measures to block used games from their successor to the Xbox 360,  effectively attempting to cut the used games market off at the knees.

And let’s not forget SOPA.  The Stop Online Piracy Act (SOPA; HR-3261) and the Protect Intellectual Property Act (PIPA; S-968), SOPA’s counterpart in the Senate, sought to grant broad, sweeping powers to copyright holders to go after those who sought to appropriate their intellectual property on the Internet.  This bill went so far as to grant copyright holders the power to shut down whole websites for even the slightest alleged copyright infringement.  Theoretically, under SOPA/PIPA an entire website could be shut down if any of the content it hosted did not belong to the people who posted it.  For sites driven primarily by user-generated content, such as YouTube, Flickr, or Reddit, that could effectively mean a death sentence.  Supporters of the bills said it gave copyright holders a more effective means of combating theft, while critics took umbrage with the bills’ broad enforcement powers and loose definitions of piracy, further arguing that their passage represented attacks on free speech and the Internet itself.  SOPA and PIPA ultimately failed thanks in no small part to a web-based grassroots campaign, most notably the January 18 voluntary shutdown of services by a number of major websites, including Reddit, Archive.org, and most notably Wikipedia.  However the recent debates over the Anti-Counterfeiting Trade Agreement (ACTA), which the United States signed while SOPA and PIPA were in their death throes, shows the debate over control of the Internet remains contested.

I think the whole debate that’s been going on between publishers and players–over SOPA/PIPA/ACTA, DRM, modding and used games–really boils down to the issue of ownership.  People on both sides of the issue seem to be arguing over who gets to control video games following their production and sale.  In an interview on G-4’s Attack of the Show in January 2011, Hotz said the case against him was a debate over “whether you really own that device that you purchased.”

Major game developers and publishers have in recent years attempted to redefine the parameters of ownership.  I’m not a legal scholar but up until recently the limits of ownership by producers has stopped at the point of sale (warranties and safety recalls notwithstanding).  Let’s say you bought a pair of shoes.  Once you buy those shoes you can wear them yourself, you can go and resell them on eBay or donate them to Goodwill and the company that made those shoes cannot do anything about it.  You could decide you want to take them apart and make something with the materials or wear them on your hands if you saw fit.  It is a practice of reconceptualizing artifacts that has been going on since the creation of manufactured goods.  In effect, after the point of sale the person who bought it can do with it whatever they wish.   It’s the same kind of argument that says why electronics or chemical companies are not legally responsible if the buyers of their products use them to build homemade bombs; they have no control over what the person does with it.  After the product is sold it’s out of the producers’ hands and whomever purchases it has a right to do whatever they want with it–i.e. take it apart, sell it, turn it into a sex toy, etc..  By completing the transaction the producer effectively cedes control of the object–whatever it is–to the buyer.

However in recent years the video game industry has attempted to extend their ownership beyond the point of sale for as long as the product exists. For software, the trend is leaning toward completely digital-based games with no cartridges or discs which companies allow players to download but retain the power to discontinue or disable at their whim.  For hardware, particularly game consoles, the producers now want to dictate what uses their products can and cannot be applied to, including placing restrictions on hacking and modding.  I fear that this model of buy-to-rent which has emerged with always-online DRM and the threat of litigation for deviating from prescribed models of usage present a grim future indeed.

Regarding copyrighted material, by which I am referring to intellectual property such as images, characters, music, what have you, that has always been a delicate legal and ethical debate.  Some companies like Valve encourage or tacitly accept it; in some cases, companies make their source code publicly available for modding, as id did in November with the code for Doom 3.   Beyond manipulating computer code fans have used materials from games in fan videos, tributes, and artwork.  For example, Overclocked Remix has collected independent artists who reinterpret or homage video game music and make it available for free download.  Sites like deviantArt have become places for enthusiasts to create their own artwork using their favorite game characters.  Copyright holders have had to negotiate fan communities for years as several scholars, most notably Henry Jenkins in his work during the mid nineties on television fan communities, have observed.  The re-appropriating of content by viewers/users has a long history.

And what happens is there is a point where ownership goes beyond buying and selling.  We as game players have been shaped by the games we play.  I’d be hard-pressed to find a game enthusiast who hasn’t played at least one game that had some kind of emotional impact on him or her: a fond memory, an intense boss battle, a powerful ending, the thrill of playing with friends or family.  There is a point where media shapes our identity and become part of how we view the world and ourselves.  In that respect the ownership of video games becomes more than legal ownership, but emotional ownership.  The experience of playing becomes a kind of ownership.

Look at those fan communities for games that came out years ago that did not become long-running franchises.  The best example I can think of are the patient and long-suffering fans of the Mother (aka Earthbound) series.  As a commodity the game is effectively dead: Nintendo released it in 1994 to modest sales.  They planned a sequel on the Nintendo 64 which ultimately fell through; eventually they made the sequel on the Game Boy Advance but only released it in Japan.  In the case of Mother, the copyright holders see a game that isn’t profitable enough for a wide release.  Meanwhile, there is a dedicated body of fans who make their own fanfics, game-related art, webcomics, video tributes, and in some cases create their own games.  Starmen.net, the homepage of the most active community of Earthbound/Mother fans hosts a weekly podcast on the game and they sell bunch of game-related merchandise.  For people like the fans at Starmen.net, Earthbound is a game of great value, one which resonates to these fans on a significant level.  For them that game belongs to them regardless of corporate measures to hold onto copyrights forever and eliminate things like the public domain.

As long as the big companies stake a claim on control over their products, the players themselves will have something to say about the medium on which they play.  Despite all the litigation and legislation , companies can never get away from the fact that though they produce the products, the products are not exclusively theirs.

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About kevinimpellizeri

I'm a Ph.D. candidate in history at the University of Delaware where I am studying the social and cultural impact of video games in America. When I'm not studying history or playing video games I offer my voice on 91.3 WVUD Newark and review bad horror movies at www.horrorsofhorror.com. You can follow me on Twitter at @KDImpellizeri
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