Intellectual property (IP) covers different types of legal monopolies. These monopolies incorporate works of artistic nature. Commercial works created by people using their minds are also covered under IP laws. Under the legal provisions governing intellectual properties, the owners are entitled to some rights, which are exclusive to them. These rights are applied in relation to a number of intangible assets like musical and literary works. Intellectual property rights are granted in different forms such as copyrights, patents, trademarks and so on. A copyright is the protection applied to an expression rather the idea itself. Copyright differs from patent. While copyright is applicable to protecting the expressions, patent laws are created to ensure that the original ideas are not replicated.
The Right of Copyright
The right of copyright was first evolved in the United Kingdom covering the printed works. In the present day context, copyright protects almost all creative works starting from written words to software. The copyrights include “the right to create copies of the work, the right to distribute copies of the work, the right to create derivative works, and the right to public display/ performance” (Methenitis). In order to get protection under copyright there is the need for two basic elements to be present. They are the original creation of the work or authorship and the work must have been offered to the public in any tangible medium like print or other forms.
Copyright as applied to gaming and associated software as compared to printed words, is still relatively in the nascent stage. Despite its development, being only at the initial stages the applicable rule remains the same “copyright protects the expression not the idea”. Applying this principle to video gaming industry some of the following rules emerge. They are: (i) making an unauthorized copy of any game and marketing it will amount to infringement, (ii) making a backup copy of a game for which there is a license already existing will not amount to infringement, (iii) making a backup copy of a game for which there is a license already existing and distributing it will amount to infringement, (iv) copying significant elements of the source code of the game will clearly be treated as infringement even in case where the game looks completely different, (v) taking a major character from a series and making it as other’s own will be infringement and this act includes machinima, (vi) a cheat system or Game Genie is not an infringement per se; however a card which is plugged into an arcade machine for the purpose of speeding up the play will be considered as infringement and (vii) making a game which re-uses a general game idea which is already copyrighted will not amount to infringement.
However, there are certain limitations attached to the use of copyright, which makes the use of copyrighted material a “fair use”. These limitations or allowances depend on the presence of some criteria. They are (i) the purpose and use of the copyrighted work, (ii) the ways in which the original work is copied (nature and character), (iii) the quantum or volume of the work copied and (iv) the effect of such copying on the future sale of the original work that was copied.
Infringement of Copyright
Copyright infringement is an unauthorized or prohibited act of using the work of others protected by copyright law. Infringement implies the violation of the owner’s exclusive rights. In general,
“Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner, as granted and limited by the Copyright Act, is an infringer of copyright.”(National Information Infrastructure).
The violation may be reproduction or performing the copyrighted work or making some derivative works out of the original work. Infringement of copyright may be contributory or vicarious depending upon the nature of infringement. “Contributory infringement results when somebody knows of the direct infringement of another and substantially participates in that infringement, such as inducing, causing, or materially contributing to the infringing conduct. That substantial participation could take the form of providing a device or service that facilitates the infringement if that device or service has no substantial use other than infringement.” (Digital-Law-online) On the other hand, vicarious infringement takes place when there exists a direct infringement and the person indulging in such infringement is in a position to control the infringer and is in a position to derive financial benefits from the infringement.
Changes in Copyright Provisions brought in by CONTU
In the case of electronic or audio-visual media, copyright infringement is referred to as piracy. In the United States, Section 117 ‘Limitations of Exclusive Rights: Computer Programs’ was introduced on the recommendation of the National Commission on New Technological Uses of Copyrighted Works (CONTU). The proposals for changes in the provisions of Section 117 was to regulate the copyright protection to be granted to the holders of copyright on computer programs in view of the vast changes that have taken place in the field of information and communication technology. Under this section the owner of a copyrighted program is allowed to make copies of such programs for varied reasons including for using the program in his hard disk, making backup and archival copies, and making copies for repairing and maintaining machines. However, the law does not allow adaptations to be made, available to the public or otherwise used without the prior permission of the copyright holder, especially when such adaptations are likely to affect adversely the interests of the copyright holder.
Derivative Work and Fair Use Defense
In the case of Lewis Galoob Toys, Inc. v. Nintendo of America, Inc, the Court of Appeals in the United States has prescribed the rights of the users under circumstances where the copyrighted was modified. In this case, the court held that Game Genie cannot be construed as a derivative work and therefore must be considered as fair use. Similarly in the case of Midway Manufacturing Co. v. Artic International, Inc., 547 F. Supp. 999 (N.D. Ill. 1982), the Supreme court held that aspects of a video game can be copyrighted irrespective of the fact that images appearing on the screen are transient. In this case the Court was of the view that if a speed kit was intended to speed up all the video games in general, it will amount to an improvement in technology and cannot be treated as an infringement (Scott, p 2-135).
In this context, it is necessary to consider the elements of a ‘derivative work’. A derivative work for the purposes of copyright law extends to original creations of artistic or other work, which uses substantial portions of different elements of an original work, which has been protected by copyright laws. Infringement liability because of derivative-work arises when the infringement is in respect of a substantial amount of the copyright protected work. However, actions against derivative works can be handled by getting the software or the program registered with GNU General Public License (GNU GPL) system. “The GNU General Public License is a free, copyleft license for software and other kinds of works.” (Ohloh:Root) The objective of GNU General Public License is to guarantee the freedom to share and change all the versions of a program registered under the license. Software program developers who use the protection by GNU GPL can get their rights protected by (i) establishing the copyright on the software, and (ii) obtaining the necessary permission under law for copying, distributing and/or modifying the program.
Case of Logik Scripting Inc
The case of Logik Scripting Inc in using RSBot and the charge of copyright infringement by Jagex Limited can be defended in the light of the above discussions. The following are some of the arguments that can be offered as defense among other things.
- Under Article 2 of the World Intellectual Property Organization (WIPO) Copyright Treaty, the copyright extends only to expressions. The copyright does not offer protection to ideas or procedures of doing a particular thing. It does not also apply to methods of doing a work or mathematical forms of doing the copyrighted work. The argument by Jagex Ltd that java coded scripts are a derivative work cannot be accepted as the form in which Jagex uses java is a method of operation and cannot be construed as an expression protected by copyright.
- Under the amended provisions of section 117 as recommended by CONTU, when a new copy or adaptation is created as an essential step in the utilization of the computer program, such adaptation does not fall within the purview of infringement. The program RSBot developed by Logik Scripting Inc is being sold to work on a free open source program that enhances the utility of the computer in playing the game. Therefore, such act does not warrant an action under copyright infringement. Just because Jagex uses the program with java -coded scripts, the action of Logik cannot be construed to infringe any copyright protection as the changes made by Logik represents the conversion of the program from one higher-level language to another to facilitate an efficient use. The action also represents an adaptation to add features to the program, which were not present earlier. It also does not harm the interest of Jagex who is the present copyright holder.
- The nature of the copyrighted work is also a matter of relevance. In assessing the degree and scope of copyright protection, one of the important considerations is whether the copyrighted work is informational or creative (Acuff-Rose, 114 S. Ct. at 1175; Netcom, 907 F. Supp. at 1379). Because the RuneScape product is of an entertainment use and involves fiction and fantasy, which are in fact creative rather than informational, there is no case of finding a fair use, which gives an exclusive right of protection to Jagex.
- The purpose and character of use is yet another factor that weighs with the consideration of protecting the copyright. The use of the program developed by Logik will not in any way affect the sale of the games by Jagex as the program is meant to expand the pleasure of playing the game. Therefore, Jagex cannot apply the ‘fair use’ factor to restrict the right of Logik to market the program developed by the company. (See American Geophysical Union v. Texaco, Inc., 802 F. Supp. 1, 14-16 [23 USPQ2d 1561]). The facts of the Logik case is different from that of Lewis Galoob where the case was of fair use found as the users were to necessarily purchase Nintendo’s game cartridges in order to use the device “Game Genie” that really altered the copyrighted game of Nintendo while being played at home.
- The percentage of the original work copied is another matter for consideration. The point whether what was copied constitutes the “heart” of the copyrighted work determines the question of infringement. The fact that the program developed by Logik is just an improvement over the work of Jagex and therefore does not constitute an infringement of the latter’s copyrighted work.
- The final statutory factor for the determination of infringement is that whether unrestricted and widespread conduct of the course of action followed by Logik would result in significant adverse impact on the potential marketability of the copyrighted work of Jagex (Campbell, 114 S. Ct. at 1177). Normally, courts consider the elements of the nature of use and the volume of the original work copied for determining the potential infringement. However, it is the adverse impact that the copyrighted work is likely to create on the future sales is the most significant factor that determines the case of infringement. In this case, the work developed by Logik does not in any way affect the market for the products of Jagex. Therefore, no case lies for Jagex to claim for infringement of its copyrighted work by Logik Scripting Inc.
There is no case of contributory infringement arises in the case of the program developed by Logik. Liability for contributory infringement on the part of Logik can be established only where Logik has induced any other party for further infringement of the copyrighted work with the full knowledge that the other party’s action will amount to infringement. The defense here is that Jagex cannot apply the provision of copyright for its work, as it is only an expression.
The clause on “Intellectual property rights” in the terms of service as shown in website of the company reads:
“You must not reverse-engineer, decompile or modify any Jagex Product client software in any way (except to the extent allowed by applicable law).” (Runescape.com)
“You must not use a modified/customized version of the client software or attempt to sub-license it. You must not create or provide any other means by which any Jagex Product may be played by others (including, without limitation, replacement or modified client/server software, server emulators).” (Runescape.com)
The terms on IP by Jagex Ltd clearly allows the reverse engineering and modification to the extent allowed by the applicable laws. As per the applicable laws, the action of Logik Scripting is well within the provisions of applicable laws.
Any claim for copyright infringement because of fair use can be brought only on consideration of (i) the purpose and character of use, (ii) nature of the copyrighted work, (iii) the amount of the copyrighted work used and (iv) the effect on the potential market for the copyrighted work. These non-exclusive factors have been laid down under section 107. The work of Logik has not negatively met with any of these non-exclusive factors. The work of Logik on developing and marketing java coded scripts that work on a free open source program that automates playing the game, does not violate the provisions of Section 107 and therefore an action for unfair use against copyright protection cannot be brought by Jagex against Logik. The mere inclusion of the clause in its Terms of Service does not entitle the company to get the protection for its work as such work is only a method of operation which is very well allowed to be reverse-engineered or modified by the applicable laws.
Moreover, the products of Logik are not created exclusively for the public to use more of Jagex games only. The products are created for all the computer games in general to make an efficient playing of all the games possible. The products of Logik use java commands in general to make the computer play the game as an artificial intelligence in respect of all computer games. Therefore, the products of Logik cannot be considered as reverse-engineered to attract contributory infringement.
Even From another legal point of view, this clause against reverse engineering added by Jagex is not enforceable. This is because such a clause cannot form part of the ‘terms of sale’. Such a term of service may be categorized as an illegal contract requirement and has to be considered as if such a term existed at all. “The underlying principle that governs a document’s characterization as an unenforceable agreement to agree stems from the absence of manifested mutual assent to the essential terms of a purported contract.” (Barnes) In this case, there can be no mutual assent and hence this clause in the terms of sale becomes unenforceable.
- When the original protection cannot be extended to the work of Jagex, there is no case for applying the contributory infringement. In order to establish liability on Logik for contributory infringement, it is for Jagex to first establish that Logik has directly infringed Jagex’s copyright and secondly Jagex must establish that (i) with the knowledge of infringement by the users’ activity (ii) Logik has induced, caused or materially contributed to their infringing activity (Digital-law-online a).
- The decision of the case in Midway Manufacturing Co. applies to Logik Scripting in which it was established that any adaptation of the programs, which improves the speed and working of all video games in general cannot be treated as infringement. The development carried out by Logik in selling java coded scripts that work on a free open source program to automate the playing of any game must be considered as a development in the technology that can be applied to any game and not in particular to RuneScape of Jagex. Therefore, there is no case of direct infringement, fair use defense or contributory infringement by Logik of the copyrighted work of Jagex. Similarly, there can be no case for Jagex to claim for willful infringement by Logik Scripting, as the Company has not acted with the knowledge that it is infringing the copyright protection available to Jagex.
Works Cited
Barnes, Leo K. Caveat Broker: Avoiding Unenforceable Agreements To Agree. 2009. Web.
Digital-Law-online. Chapter 1: An overview of Copyright. 2002. Web.
Digital-law-online a. Sega Enterprises Ltd v Maphia. 1996. Web.
Methenitis, Mark. Law of the Game. 2007. Web.
National Information Infrastructure. Copyright Infringement. 1995. Web.
Ohloh:Root. GNU General Public License 3 or Later. 2007. Web.
Runescape.com Terms & Condition 2009. Web.
Scott, Michael Dennis. Scott on Information Technology Law Volume 1. New York : Aspen Publishers , 2007 pp 2-135.